ATTORNEY’S FEES IN FAMILY LAW LITIGATION

In the United States, attorney’s fees are not automatically granted to a prevailing party in litigation.  Known as the “American Rule,” this rule requires that each party is responsible for their own attorney’s fees incurred, unless otherwise granted by statutory authority or by contract of the parties.  The United States is unique in this regard, as the “English Rule,” which is used internationally, requires the losing party to pay the prevailing party’s attorney’s fees.

 

In Georgia, as in many states, there are several statutes (codified law) relevant to domestic litigation that provide for an award of attorney’s fees to be paid by the losing party.  It is important to note that some statutes, but certainly not all, have a mandatory imposition of attorney’s fees without consideration of the parties’ incomes or the parties’ conduct.  However, the majority of the statutes permit the Court to use discretion in whether an award of attorney’s fees should be made.  The most common Georgia statutes which grant an award of attorney’s fees in domestic matters, and their mandatory or discretionary nature, are discussed here.

 

  • Basic Domestic Attorney's Fees - O.C.G.A. § 19-6-2(a)

 

In divorce litigation, the most commonly used statute is found at O.C.G.A. § 19-6-2(a), which states that “[t]he grant of attorney's fees as a part of the expenses of litigation, made at any time during the pendency of the litigation, whether the action is for alimony, divorce and alimony, or contempt of court arising out of either an alimony case or a divorce and alimony case, including but not limited to contempt of court orders involving property division, child custody, and child visitation rights, shall be within the sound discretion of the court, except that the court shall consider the financial circumstances of both parties as a part of its determination of the amount of attorney's fees, if any, to be allowed against either party.”

 

As clearly stated in the statutory language, the court shall consider the financial

circumstances of both parties in determining whether an award of attorney’s fees is granted.  Thus, this statute is not designed to be punitive in nature.  Rather, the purpose of this statute is primarily aimed at providing a level playing field for the parties to the litigation.  In other words, the Court seeks to ensure that both parties have adequate representation, and each party can fully and fairly present their respective cases.  This is most commonly found where one party to the action earns a significant income, while the other party has a substantially lower income.  See Brady v. Brady, 228 Ga. 617 (1972) where the Court found that “[t]he allowance of attorney's fees in applications for divorce or alimony is a necessary provision to enable the [spouse] to properly protect [his or her] interests.”  See also Johnson v. Johnson, 260 Ga. 443 (1990) holding that the “[p]urpose of allowing attorney fees is to ensure effective representation of both spouses so that all issues can be fully and fairly resolved.”

 

Moreover, O.C.G.A. § 19-6-2 (a) does not apply to a petition for modification of child custody … or to contempt proceedings unless the allegations are ‘for failure to comply with the original alimony or divorce decree.’” (Emphasis added).  Moore v. Hullander, 345 Ga. App. 568 (2018).  For example, in Grailer v. Jones, 349 Ga. App. 625 (2019), the court found that the mother was in contempt for violating a custody order entered subsequent to the original decree. Therefore, the father was not entitled to attorney’s fees based on O.C.G.A. § 19-6-2.

 

 

  • The Frivolous Litigation Statute - O.C.G.A. § 9-15-14(b): 

 

Often called the “Frivolous Litigation” statute, O.C.G.A. § 9-15-14(b) provides that the

“court may assess reasonable and necessary attorney’s fees and expenses of litigation” where the Court finds that “…an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct, including, but not limited to, abuses of discovery procedures….”

 

This award of attorney’s fees can be brought by either Party or the Court may award

attorney’s fees pursuant to this statute sua sponte (“on its own”).  Unlike the previously discussed statute (O.C.G.A. § 19-6-2), this statute is punitive in nature and is intended to punish a party for conduct during the action.  By the language of the statute, “conduct” includes bringing a frivolous action knowing that the case lacked justification, brought for purposes of harassment of the other party, or unnecessarily causing delays in the discovery process, i.e., partially producing documents in response to requests, failing to disclose relevant information, or not fully responding to questions in the form of Interrogatories.

 

            However, although intended to punish a party or their attorney for certain conduct, an award of attorney’s fees under this statute is simply discretionary, and the Court is within its authority to award a range of attorney’s fees – from an award of all fees to no fees.

 

  • Modification of Child Support - O.C.G.A. §19-6-15(k)(5):

 

O.C.G.A. §19-6-15(k)(5) provides for an award of attorney’s fees to the party that prevails in the modification of child support action.  A modification of child support can be based on various factors, including an increase or decrease in the income of the parties; the needs of the child (i.e., child is older and now requires educational tutoring); the failure of the noncustodial parent to exercise visitation with the child(ren) (for example, causing an increase in expenses which otherwise would have been avoided had the parent exercised visitation); the noncustodial parent exercises more visitation than allowed in the court order; or the noncustodial parent has suffered an involuntary loss in employment. 

 

In considering an award of fees, the modification statute provides that the court “may award attorney's fees, costs, and expenses of litigation to the prevailing party as the interests of justice may require.” While the substance of this statute is based on the Court’s inherent discretionary authority to award attorney’s fees to the prevailing party, the discretionary nature of this statute changes to a mandatory award of attorney’s fees when the custodial parent prevails in an upward modification of child support based on the noncustodial parent’s failure to exercise court-ordered visitation. 

  • Child Custody Actions - O.C.G.A. § 19-9-3(g):

 

In many circumstances involving either the establishment of child custody or a review (modification) of the existing custodial arrangement, Courts will often award attorney’s fees either at a temporary hearing or at the final hearing (or both) on custody issues.  As recently as 2010, the statute previously only permitted attorney’s fees in actions for alimony, divorce and alimony, or contempt of court arising out of either an alimony case or a divorce and alimony case, similar to the basis for attorney’s fees found in O.C.G.A. § 19-6-2 above.  Harris v. Williams, 304 Ga. App. 390 (2010).  However, Harris was overruled two years later to provide for an award of attorney’s fees in custody actions.  Viskup v. Viskup, 291 Ga. 102 (2012).  This remains the rule today, and the statutory provision found in 19-9-3(g) is often used for requesting attorney’s fees in such actions.    

 

            What is unique to this statute is that the Court is given the discretion not only to award attorney’s fees for expenses of litigation in custody actions to either party, but the wording of the statute gives the Court broad discretion to award attorney’s fees for other aspects of the custody litigation, including expert fees, fees associated with the child(ren)’s Guardian ad Litem, and “other costs” of the action and pretrial proceedings “to be paid by the parties in proportions and at times determined by the judge.” 

 

This means that although one party may be awarded attorney’s fees during the course of, or at the conclusion of, the litigation, both parties may be required to pay expert fees and/or Guardian ad Litem fees in proportions at the discretion of the Court.  Although it is not clear from the stated language in the statute that the Court must consider the financial circumstances of the parties, with respect to an award of expert or Guardian ad Litem fees, Courts frequently consider the financial positions of the parties and will often order the party in a superior financial position to pay the expert or Guardian fees, but with a possible reallocation of the fees to be paid by the other party at the conclusion of the case.

 

  • Bad Faith Litigation - O.C.G.A. § 13-6-11:

 

Found at Title 13 (Contracts) of the Georgia Code, O.C.G.A. 13-6-11 is more commonly argued and used in cases involving contract disputes.  O.C.G.A. § 13-6-11 states that “[t]he expenses of litigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.”

 

Thus, as clearly stated in the statutory language, O.C.G.A. § 13-6-11 is typically used when a Defendant has engaged in bad faith litigation.  “Bad faith litigation” can mean that a party has unnecessarily litigated an action, causing the other party “unnecessary trouble and expense.” Daniel v. Smith, 266 Ga. App. 637 (2004).  In contrast to the “frivolous litigation” statute found at O.C.G.A. § 9-15-14(b) above, which applies to conduct of both parties occurring during the litigation, O.C.G.A. § 13-6-11 applies to conduct that arises from the underlying transaction – or before the current litigation began.  Ellis v. Stanford, 256 Ga App. 294 (2002).   In both statutes, the determination of fees is discretionary and lies within the realm of the factfinder – the judge or jury.

 

 

By way of example, in a contempt action Plaintiff sought attorney’s fees for Defendant’s alleged breach of the parties’ divorce agreement.  The parties' divorce agreement was incorporated into an Amended Final Judgment and Decree, and therefore, the actions were required to be resolved under the amended decree and not the underlying agreement. “The rights of the parties after a divorce is granted are based not on the settlement agreement, but on the judgment itself. Thus, whatever claim [the parties] have is founded on the final decree, and not on the underlying agreement.”  Waits v. Waits, 280 Ga. App. 734 (2006).

 

  • Modification of Alimony – O.C.G.A. § 19-6-19(d)

 

In proceedings for the modification of alimony for the support of a spouse, the court may award attorney’s fees, costs, and expenses of litigation to the prevailing party as the interests of justice may require. O.C.G.A. § 19-6-19(d).  Thus, an award of attorney’s fees in modification actions are not mandatory, and the Court has broad discretionary authority to award attorney’s fees “as the interests of justice may require” to the party that succeeds in the action.  In most cases, a party obligated to pay alimony under a prior order is not permitted to modify an alimony obligation for at least two years from the date of the order by the same former spouse. O.C.G.A. § 19-6-19(a).  Provided your agreement does not include “waiver of modification of alimony” language, the judge or jury, may modify a previous award of alimony, “in accordance with the changed income and financial status of either former spouse in the case of permanent alimony.” 

 

However, an exception to the two-year rule exists when the alimony award is periodic: when the recipient former spouse voluntarily cohabits with a third party in a meretricious relationship (also known as the “Live in Lover Rule”). “Cohabitation” means living together continuously and openly in a meretricious relationship with another person, regardless of the sex of the other person.  However, the Plaintiff seeking to modify an alimony obligation must tread carefully.  In the event the Plaintiff does not prevail in his or her petition for modification on the voluntary cohabitation argument, the statutory language requires that plaintiff be liable for reasonable attorney’s fees incurred by the defendant for defending against the allegations. 

 

  •  Defending Modifications of Alimony – O.C.G.A. § 19-6-22:  

 

In addition to the ability to request attorney’s fees in modification of alimony actions pursuant to O.C.G.A. § 19-6-19(d) described above, the Georgia legislature has carved out additional provision for the Court to consider an award of attorney’s fees to a party required to defend against a modification action. 

 

Under O.C.G.A. § 19-6-22, where a petition is filed by a party obligated to pay alimony, the court may require the party to pay the reasonable expenses of litigation as may be incurred by the party's former spouse on behalf of the former spouse in defense thereof. 

 

As you can see from both statutory provisions, both O.C.G.A. § 19-6-19 (d) and § 19-6-22 authorize, but do not require, the court to award attorney fees -- to the prevailing party under O.C.G.A. § 19-6-19 (d) and to the defending party under O.C.G.A. § 19-6-22Shapiro v. Lipman, 259 Ga. 85 (1989).

 

 

  • Uniform Child Custody and Jurisdiction Enforcement Act – O.C.G.A. § 19-9-92:

 

The Uniform Child Custody and Jurisdiction Enforcement Act (“UCCJEA”) is triggered

when there is a custody battle between parents of a child or children who live in different states.  At this time, virtually all states have adopted some form of the UCCJEA, but the language of the statute can vary from state to state.  In general terms, the UCCJEA provides the framework for determining which state has jurisdiction to issue an order of custody concerning minor children.  Often times, though not exclusively, jurisdiction will be where the child has resided for at least six consecutive months, which is considered the child’s “home state.”  The driving purpose behind the UCCJEA is to avoid inconsistent custody orders that would result if more than one Court issued a custody order.

 

            As with prior custody statutes discussed herein, the UCCJEA provides for the payment of reasonable attorney’s fees and expenses of litigation incurred by a party.  Under this statue, the Court must award attorney’s fees to the prevailing party, which includes necessary and reasonable expenses incurred by or on behalf of the party, costs, communication expenses, attorney's fees, investigative fees, expenses for witnesses, travel expenses, and child care during the course of the proceedings, unless the party from whom fees or expenses are sought establishes that the award would be clearly inappropriate.  O.C.G.A. § 19-9-92(a). 

 

An award of attorney’s fees to the prevailing party under this statute is relevant only in enforcement action.  However, the definitions in Georgia’s codification of the UCCJEA do not address the meaning of “prevailing party.” The comment to UCCJEA § 312, upon which O.C.G.A. § 19-9-92 is modeled, provides that the act gives no special definition to the term “prevailing party” and that each state “will apply its own standard.”  Delgado v. Combs, 314 Ga. App. 419 (2012).

 

Following in the footsteps of other states, the Georgia Court of Appeals has held that “the need to promote uniformity of the [UCCJEA] with respect to its subject matter among states that enact it,” we, too, hold that [an award of attorney’s fees under] O.C.G.A. § 19-9-92 applies only to the prevailing party in an enforcement proceeding. Id., see also Ward v. Smith, 334 Ga. App. 76 (2015).

 

  • Family Violence Act – O.C.G.A. § 19-13-4 (a)(10):

 

The Family Violence Act (the “Act”) is designed to prevent violence between “past or present spouses, persons who are parents of the same child, parents and children, stepparents and stepchildren, foster parents and foster children, or other persons living or formerly living in the same household.”  The acts seeks to prevent the occurrence of “any felony or commission of offenses of battery, simple battery, simple assault, assault, stalking, criminal damage to property, unlawful restraint, or criminal trespass.”  However, the term “family violence” does not include reasonable discipline administered by a parent to a child in the form of corporal punishment, restraint, or detention.  O.C.G.A. § 19-13-1.

 

The Act specifically states that the Court may “[a]ward costs and attorney's fees to either party.”  O.C.G.A. § 19-13-4(10).  The Court’s role in administration of the Act is to “…approve any order ‘to bring about a cessation of acts of family violence,’ and such orders may ‘award costs and attorney's fees to either party’ in furtherance of that goal.” Suarez v. Halbert, 246 Ga. App. 822, 825 (2000).   However, in considering an award of attorney’s fees, the Court is not permitted to consider the disparity in income of the parties.

 

In Suarez, the grandparents of the minor children filed a Petition for Protective Order under the Family Violence Act against their son-in-law, Halbert.  Suarez was successful in obtaining the protective order against Halbert, but the trial court awarded attorney’s fees against Suarez and in favor of Halbert on the basis of disparate income.  Id. at 824On appeal, the Court reversed the award of attorney’s fees, holding that “…we cannot envision how public policy would be furthered by sanctioning petitioners found by the trial court to have acted in good faith.”  Further, the Suarez Court noted, “imposing attorney fees upon well-intentioned petitioners seeking to thwart the occurrence or recurrence of family violence would only serve to deter others from filing similar actions.”  Suarez at 825.

 

  • Unsuccessful Reversal of Paternity Orders – O.C.G.A. § 19-7-54 (h):  

 

Paternity suits are those actions brought by the unwed mother of minor child(ren) against

the alleged father of the child(ren) for the purpose of obtaining financial support for the benefit of the child(ren).  A paternity action is distinct from a legitimation action, which is brought by the alleged father against the mother to establish the father’s legal rights to the minor child(ren).

 

At times, the individual deemed the father of the minor child(ren) by paternity order will

seek to set aside or “void” the Court’s order for various reasons (such as new evidence that the individual is not the actual father of the minor child(ren)).  The statute sets forth a strict list of requirements that the father must meet prior to setting aside a prior order of paternity within a very limited timeframe.  If the Court declines to grant the father’s motion to set aside the paternity order, the court shall assess the costs of the action and attorney’s fees against the father and in favor of the mother.  O.C.G.A. § 19-7-54(h).  In contrast to many of the prior statutes mentioned, this award of attorney’s fees by the Court is mandatory.

 

 

The potential for attorney’s fees exists. Talk to us about your case.