Hayley Erin Viente v. Jeffrey Christen Maiden

• Court: Court of Appeals of Georgia
• Decided: January 12, 2022
• Docket: A21A1774
• Status: Published

Opinion

FOURTH DIVISION DILLARD, P. J., MERCIER and PINSON, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules

January 12, 2022

In the Court of Appeals of Georgia A21A1774. VIENTE v. MAIDEN.

PINSON, Judge.

Several years after their divorce was final, the parents of a minor child moved

for contempt against each other, each contending that the other was in violation of

certain of the divorce decree’s custody provisions. The trial court found that the

mother was in willful contempt on one issue and later granted the Maiden’s request

for attorney fees under OCGA § 9-15-14 (b). The mother now appeals from the

attorney fee order. We vacate the order and remand for further proceedings because

the order contained neither findings of fact and conclusions of law necessary to

support the statutory basis for the award nor an explanation of the amount of the

award sufficient to allow for meaningful appellate review. Background

Hayley Erin Viente and Jeffrey Christen Maiden were divorced in 2012. The

divorce decree awarded Viente primary custody of their one minor child and required

Maiden to pay monthly child support and reimburse Viente for the child’s uncovered

medical expenses.

Several years later, Viente moved to have Maiden held in contempt of the

divorce decree and its later modifications. Viente alleged that Maiden had willfully

failed to reimburse her for uncovered medical expenses, taken the child to a doctor’s

appointment although he did not have medical decision-making authority, declined

an invitation for the child to attend a birthday party without telling Viente, and

denigrated Viente in the child’s presence. Maiden responded with a contempt motion

of his own. He asserted three grounds: (1) Viente refused to reimburse him for a

double child-support payment he had made for one month; (2) Viente failed to notify

him about the child’s medical appointments; and (3) Viente interfered with his

attempts to communicate with the child.

Maiden moved to consolidate his contempt motion with Viente’s, but Viente

opposed consolidation and the trial court denied the motion. The trial court heard the

contempt motions at separate hearings and addressed them in separate orders.

2 In the order on Viente’s motion, the trial court denied all of Viente’s claims.

In the order on Maiden’s motion, issued on June 18, 2019, the trial court denied two

of Maiden’s three claims, but found that Viente was willfully in contempt of court

orders when she failed to notify Maiden about the child’s medical appointment. The

court wrote:

With respect to the contempt concerning [Viente]’s failure to notify [Maiden] of doctors’ appointments, this Court finds that [Viente] is in willful contempt of the Order of this Court. On one occasion, [Viente] admitted that it was best for herself not to inform the [Maiden] of a psychiatric appointment for the minor child despite [Maiden]’s prior request to be informed of the appointment. [Viente]’s actions in informing [Maiden] of medical appointments after they had taken place and failing to inform [Maiden] she scheduled the appointment before taking the minor child to same is a violation of the Parenting Plan, and constitutes willful contempt of this Court’s Order.

Maiden then moved for attorney fees under subsections (a) and (b) of OCGA

§ 9-15-14. Maiden requested $7,262.05 in attorney fees, comprising “a total of

$6,364.05” that was incurred “during this litigation, plus an additional $898.00 . . .

to prepare this brief [on the attorney fee motion].”

Days before the hearing on attorney fees, Viente moved to recuse the judge.

The trial court denied that motion, and the hearing proceeded.

3 At the hearing, Maiden asserted that he was seeking attorney fees not only

based on Viente’s willful contempt of court orders, but also because she resisted

consolidating the contempt motions and filed the motion to recuse. The total amount

of fees and expenses that Maiden requested increased to $9,179.55, comprising

(1) the $7,262.05 from the original attorney fee motion, (2) an additional $1,180.00

for preparing for the attorney fee hearing, and (3) $737.50 for responding to the

motion to recuse.

To support those amounts, Maiden submitted billing statements dating back to

April 2018, which was when his counsel began preparing the contempt motion

against Viente. But the statements did not itemize the fees or identify which portions

were attributable to the work on the claim in which Maiden prevailed. At the hearing,

counsel stated: “[These] are very detailed, very detailed bills, as far as what we’re

doing, how we’re billing things, and when you’re preparing for a trial, I’m not going

to bifurcate preparing for count 1, preparing for count 2, preparing for count 3.”

The trial court awarded $8,442.05 in attorney fees to Maiden, representing

everything Maiden asked for other than fees based on the motion to recuse. The court

explained that Viente’s willful contempt and the legal bills that Maiden submitted

4 were enough to support the award under OCGA § 9-15-14 (b). The court’s order

noted:

This Court upon considering the evidence at the December 2, 2019 hearing, including redacted detailed attorney fee bills submitted by [Maiden’s] counsel, and the oral argument of the parties, the Court hereby finds that the award of attorney’s fees is merited by willful contempt of Respondent [Viente] as detailed in this Court’s June 18, 2019 Order[,] and the bills tendered as evidence were of sufficient detail to allow for the award pursuant to OCGA § 9-15-14 (b).

Viente applied for a discretionary appeal under OCGA § 5-6-35 (a) (10), which

this Court granted.1

Discussion

1. Viente contends that the trial court abused its discretion by awarding

attorney fees under OCGA § 9-15-14 (b) without expressly finding that at least one

of that Code section’s criteria for awarding fees was present. We agree.2

Code Section 9-15-14 (b) allows a trial court to award attorney fees if it finds

that a party has (1) brought an action that lacked substantial justification, (2) brought

1 Maiden has not filed a brief in this appeal. 2 We review an award of attorney fees under OCGA § 9-15-14 (b) for abuse of discretion. Abt v. Abt, 289 Ga. 166, 167 (709 SE2d 806) (2011).

5 an action for the purpose of delay or harassment, or (3) unnecessarily expanded the

proceeding by other improper conduct. When a trial court awards fees under this

statute, it must make “express findings of fact and conclusions of law as to the

statutory basis” for the award. Matthews v. Mills, 357 Ga. App. 214, 221 (2) (850

SE2d 424) (2020) (punctuation omitted); see also Cason v. Cason, 281 Ga. 296, 300

(3) (637 SE2d 716) (2006) (“[a]n order awarding attorney fees under OCGA § 9-15-

14 must include findings of conduct that authorize the award”); Citizens for Ethics

in Gov’t, LLC v. Atlanta Dev. Auth., 303 Ga. App. 724, 737 (5) (694 SE2d 680)

(2010). That means the court must not only “specify the conduct upon which the

award is made,” Matthews, 357 Ga. App. at 221 (2), but also specifically find that the

conduct lacked substantial justification, was brought for the purpose of delay or

harassment, or unnecessarily expanded the proceeding. Merely finding that a litigant

behaved improperly is not enough. See Citizens for Ethics in Gov’t, 303 Ga. App. at

737–38 (5) (vacating award under § 9-15-14 (b) and remanding for explanation of

statutory basis when the trial court “found that Intervenors’ complaints were filed for

an improper purpose and the Intervenors acted in bad faith,” but did not make specific

findings as to statutory criteria); Moore v. Moore-McKinney, 297 Ga. App. 703,

711–12 (4) (678 SE2d 152) (2009) (vacating award under OCGA § 9-15-14 (b) when

6 trial court stated at the hearing that the pro se litigant “expanded the litigation by

making it more difficult than it ought to be” but failed to make written findings

authorizing an award) (punctuation omitted).

Here, the award of attorney fees did not satisfy statutory requirements because

the trial court did not make express findings of fact or conclusions of law about the

statutory basis of the award. See Matthews, 357 Ga. App. at 221 (2). The trial court’s

attorney fee order said only that the award “[was] merited by willful contempt of

Respondent [Viente] as detailed in this Court’s June 18, 2019 Order.” In turn, the

June 18, 2019, order merely identified the conduct that was in willful contempt of the

court’s divorce decree: Viente deciding it was “best for herself” not to inform Maiden

of the child’s psychiatric appointment; Viente informing Maiden of medical

appointments only after they had taken place; Viente failing to notify Maiden that she

had scheduled appointments. The order did not explain how or why that conduct rose

to the level of “litigation abuses” that OCGA § 9-15-14 (b) is meant to punish and

deter. See Matthews, 357 Ga. App. at 220 (2). The trial court made no findings of fact

or conclusions of law as to how Viente asserted a claim or defense that lacked

substantial justification, was intended to harass or delay Maiden in the litigation, or

unnecessarily expanded the proceedings. Indeed, those phrases appear nowhere in

7 either of the court’s orders. Issuing an award without those necessary findings is an

abuse of discretion. See Citizens for Ethics in Gov’t, 303 Ga. App. at 737–38 (5);

Moore, 297 Ga. App. at 711–12 (4).

2. In two related claims of error, Viente asserts that the trial court abused its

discretion by awarding attorney fees to Maiden on claims and matters on which

Maiden did not prevail, and by awarding fees that are not limited or directly related

to Viente’s sanctioned conduct. Again, we agree.

Attorney fees awarded under OCGA § 9-15-14 (b) must be limited to “those

fees incurred because of the sanctionable conduct.” Matthews, 357 Ga. App. at 222

(2) (punctuation omitted); see also Cook v. Campbell-Cook, 349 Ga. App. 325, 329

(2) (826 SE2d 155) (2019). In other words, “lump sum” or “unapportioned” fee

awards are not allowed. Moore v. Hullander, 345 Ga. App. 568, 573 (2) (c) (814

SE2d 423) (2018) (punctuation omitted). And to allow appellate review to, among

other things, distinguish lump sum awards from proper ones, the fee order must

explain “the complex decision making process necessarily involved in reaching a

particular dollar figure.” Id. (punctuation omitted). So we must vacate fee awards that

are unapportioned, as well as those which “fail[] to articulate why the court awarded”

what it did, id. (punctuation omitted), or are otherwise “too vague or conclusory” to

8 allow “meaningful appellate review,” Cohen v. Rogers, 341 Ga. App. 146, 152 (2) (b)

(798 SE2d 701) (2017).

The fee order here does not satisfy these standards. Because the award covered

all of Maiden’s expenses in his contempt action, it was not limited to “those fees

incurred because of the sanctionable conduct.” Matthews, 357 Ga. App. at 222 (2).

Maiden prevailed on only one of his three claims of contempt, and the order made

clear that Viente’s conduct underlying that one winning claim—her failure to notify

Maiden of the child’s doctor appointments—was the basis for the award. For the

award to be limited to the attorney fees incurred because of the sanctionable conduct,

it should have included only the fees attributable to counsel’s work on the winning

claim. But Maiden’s counsel admitted at the hearing that his bills were not broken out

like that: the $8,442.05 amount was undifferentiated and represented all of counsel’s

work in the action. So an award of that full amount could not have been limited, as

it must be, to the fees “incurred because of the sanctionable conduct.” Id. (citation

and punctuation omitted).

For these reasons, we vacate the attorney fee award and remand the case. On

remand, the trial court should enter a new order that includes the necessary findings

of fact and conclusions of law as to the statutory basis for the award and the necessary

9 explanation of how the court arrived whatever amount it ultimately awards. Moore,

345 Ga. App. at 573 (2) (c).

Judgment vacated and case remanded with direction. Dillard, P. J., and

Mercier, J., concur.