FIFTH DIVISION MCFADDEN, C. J., RICKMAN, P. J., and SENIOR APPELLATE JUDGE PHIPPS
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
DEADLINES ARE NO LONGER TOLLED IN THIS COURT. ALL FILINGS MUST BE SUBMITTED WITHIN THE TIMES SET BY OUR COURT RULES.
June 8, 2021
In the Court of Appeals of Georgia A21A0269. ERNEST v. MOFFA.
MCFADDEN, Chief Judge.
After Lisa Ernest failed to appear at the specially set bench trial in her divorce
proceeding with Robert Moffa, the trial court, with input from counsel and a guardian
ad litem, entered a final judgment and divorce decree and orders regarding child
custody and child support. The trial court also issued an order requiring Ernest to
reimburse Moffa for certain guardian ad litem fees and awarding attorney fees to
Moffa under OCGA § 9-15-14 (b) for conduct that unnecessarily expanded the
proceedings.
In this discretionary appeal Ernest challenges the decree, but not the orders on
child custody and support. She argues that the trial court heard no evidence on non-
custodial issues and the parties did not enter into an enforceable settlement agreement on those issues. But the record shows that Ernest’s counsel agreed to the trial court
resolving the issues without hearing evidence and the decree did not purport to
incorporate a separate, enforceable agreement between the parties. Ernest also
challenges the ruling regarding guardian ad litem fees on the ground that the trial
court lacked authority to enter it, but the trial court acted within his discretion.
Finally, Ernest challenges the attorney fee award, but Moffa presented evidence
supporting that award. So we affirm.
We also grant a motion filed by Moffa to strike from the appellate record
evidence that was submitted to the trial court after the rulings on appeal.
1. Procedural history.
Moffa filed a complaint for divorce in July 2016. Ernest answered and
counterclaimed for divorce. Both parties sought primary physical custody of their
minor children. They consented to a temporary order giving primary physical custody
of the children to Moffa and imposing limitations on Ernest’s interaction with the
children. Under the temporary order, Ernest forfeited her parenting time if she tested
positive for alcohol.
Over the next two years, the parties engaged in disputes on various issues,
including discovery, the custodial arrangement and parenting plan established by the
2 temporary order, and the school enrollment of some of the children. On December 19,
2017, the trial court appointed a guardian ad litem at Ernest’s request. The trial court
specially set the case for trial in July 2018, but after the parties requested a
continuance he reset it for September 26 of that year. When he did so, the trial court
told the parties that he would not entertain any further continuances.
The guardian ad litem submitted a report on September 21, 2018, five days
before the trial was set to begin. (She had waited to submit the report until after
Ernest gave deposition testimony, which occurred the day before.) Among other
things, the guardian ad litem described Ernest’s “serious alcohol problem” and
associated criminal history. She recommended that Moffa have primary physical
custody of the children. She also recommended that Ernest’s visitation with the
children be limited and supervised until Ernest successfully completed residential
treatment for alcohol abuse, at which point her access to the children could be slowly
expanded.
Ernest did not appear in court for the bench trial, which occurred on September
26 and 27, 2018. (The reasons for her absence and the specific actions taken by the
trial court and counsel in response are detailed in Divisions 3 and 5, below.) The trial
court denied her counsel’s request to continue the trial, and he ultimately entered
3 several orders resolving the issues in the case: a divorce decree that included an
equitable division of property, a permanent parenting plan, and a child support
addendum. The trial court also entered an order apportioning the guardian ad litem’s
final bill between the parties. The divorce decree provided that the parties could
submit briefs on the issue of attorney fees at a later time.
On March 28, 2019, Moffa filed a motion in which he asked the trial court to
award him attorney fees and to reapportion the guardian ad litem fees. The trial court
held an evidentiary hearing on that motion, and on December 13, 2019, the trial court
awarded Moffa attorney fees under OCGA § 9-15-14 (b) and reapportioned the
guardian ad litem fees to require Ernest to pay the entire final bill.
On January 10, 2020, Ernest filed with the trial court the affidavit of her
counsel, which included a number of attachments. Three days later, on January 13,
2020, she filed application for discretionary appellate review of the divorce decree,
the ruling reapportioning guardian ad litem fees, and the award of attorney fees. We
granted that application on February 3, 2020. On February 13, 2020, Ernest filed her
notice of appeal.
2. Moffa’s motion to strike.
4 As an initial matter, we consider a motion that Moffa filed with this court
asking us to strike from the record on appeal the affidavit of Ernest’s counsel and its
accompanying exhibits. As described above, Ernest submitted that evidence to the
trial court after the trial court had entered the orders on appeal and shortly before
Ernest sought discretionary appellate review of those rulings.
Our Supreme Court has held that such a motion to strike “invokes a ruling as
to the scope of the record that [the appellate court] will be authorized to consider in
addressing the merits of [the] appeal[.]” State v. White, 282 Ga. 859, 860 (1) (655
SE2d 575) (2008). It is inappropriate for an appellate court to consider evidence that
had not been presented to the trial court before the trial court issued the rulings on
appeal. See Givens v. Ichauway Inc., 268 Ga. 710, 712 (1) (493 SE2d 148) (1997);
South v. Bank of America, 250 Ga. App. 747, 751 (3) (551 SE2d 55) (2001). Although
Ernest argues that her counsel’s affidavit and its accompanying exhibits concern
communications with the trial court or of which the trial court was made aware before
the trial court entered the orders on appeal, Ernest did not present that evidence to the
trial court for inclusion in the record until well after those orders were entered. So we
“cannot consider that material, and [Moffa’s] motion to strike is hereby granted.”
White, 282 Ga. at 861 (1).
5 3. Non-custodial issues in decree.
In her appellate brief, Ernest asserts that the trial court erred in entering the
decree for several reasons that fall into two general categories. She argues that “there
was no hearing or trial before the court as to the disputed non-custodial issues.” And
she makes a variety of arguments relating to the absence of an enforceable settlement
agreement on those issues. None of her arguments require reversal.
(a) Lack of hearing or trial on disputed non-custodial issues.
After Ernest failed to appear for the first day of the specially set trial and the
trial court declined to grant a continuance, the trial court proposed several options
about how to resolve the non-custodial issues. The trial court stated that he was
“going to go forward if that’s what [Moffa’s counsel] wants to do to get this thing to
finality” and offered Ernest’s counsel three choices:
You can go out and talk to [Moffa’s counsel] and see what you all can do. We can just dispense with that and start a trial with you in the uncomfortable position of representing a client who’s not here. Or you can decide that you’ve done all you can do, leave the case, and [Moffa’s counsel] can put up [Moffa’s] case. I’m not going to suggest to you any of those but that’s where we are. So what do you want to do?
6 Ernest’s counsel chose the first option, to talk with Moffa’s counsel and try to reach
an agreement of some sort on the non-custodial issues, as counsel had done earlier
that day with the custodial issues. The record also shows that Ernest’s counsel saw
and spoke with Ernest the evening of the first day of trial and that, on the second day
of trial, he continued with this effort to reach an agreement with Moffa’s counsel on
the non-custodial issues.
Given what transpired at trial, Ernest’s complaint that “there was no hearing
or trial before the court as to the disputed non-custodial issues” is simply incorrect.
A bench trial occurred, Ernest failed to appear, the trial court expressed his
willingness to hear evidence anyway, and Ernest’s counsel instead agreed to forego
the presentation of evidence on the non-custodial issues in favor of working with
Moffa’s counsel off the record to resolve those issues. An appellant cannot complain
of error that was induced by his or her conduct. Dyals v. Dyals, 281 Ga. 894, 896 (3)
(644 SE2d 138) (2007). Thus, to the extent that it can be said that Ernest’s counsel
had a better alternative and so that “error could have resulted from the [decision that
no evidence would be presented at the bench trial, Ernest’s] counsel induced such
error by approving [that approach to the resolution of the non-custodial issues], and
[she] will not be heard to complain of [that decision] here.” Id.
7 (b) Arguments regarding a settlement agreement on non-custodial issues.
As discussed above, at the bench trial counsel agreed to attempt to resolve the
non-custodial issues between themselves in lieu of presenting evidence regarding
them. On the second day of trial, Moffa’s counsel represented to the trial court: “[W]e
have worked out, I think 99.9 percent of our issues. . . . We are still fine tuning the
details and we are going to stay. [Ernest’s counsel] and I are going to stay and start
typing up things frantically and try and get things on paper. So we are not really ready
to read the settlement into the record, but we do, like I said, have an agreement.”
Ernest’s counsel did not dispute this characterization of the status of their agreement.
Shortly thereafter the trial court stated: “We have . . . been here to negotiate a
settlement today on all property and equitable division.” Ernest’s counsel did not
dispute this characterization of counsel’s discussions. Ultimately the trial court
entered a decree that resolved the non-custodial issues and referred to an agreement
but did not expressly incorporate or attach any agreement.
Now, however, Ernest argues in her appellate brief, that we should reverse the
decree
because material terms of any alleged final agreement were disputed between the parties; there was no evidence in the record of the terms of
8 any final agreement; there was no motion to enforce settlement agreement filed by either party; and there was no hearing or trial before the court . . . as to whether there was a binding and enforceable final agreement [as to disputed non-custodial issues].
These arguments rest on a mistaken premise, that a separate, enforceable
agreement between the parties was necessary for the trial court to enter the decree. It
was not. While a trial court may incorporate an agreement between the parties into
a divorce decree, it may also issue a decree without doing so, for example, in a
contested divorce. See generally Dolvin v. Dolvin, 248 Ga. 439 (284 SE2d 254)
(1981) (noting that where parties have contested divorce and alimony trial, decree
will not incorporate a settlement agreement). The decree in this case made several
references to a settlement agreement, but we do not construe those references to be
an incorporation of the terms of a separate, enforceable agreement between the
parties. With one exception, discussed below, the decree did not state that it was
expressly incorporating any agreement between the parties, in whole or in part. It did
not state or imply that it was a consent judgment. It did not include any agreement as
an attachment.
The one exception concerns a paragraph in the decree requiring binding
arbitration to resolve issues concerning certain property if the parties were unable to
9 resolve those issues themselves. At the end of that paragraph, the trial court states:
“This provision regarding arbitration was an agreement announced by the parties
which the [c]ourt has adopted and incorporated into this Final Judgment and Decree.”
The absence of similar language expressly incorporating an agreement as to other
terms of the decree indicates that the trial court was not incorporating an agreement
of the parties as to those terms.
Moreover, the transcript of the bench trial in this case shows that the trial court
determined that Ernest’s counsel was not in a position to enter into a binding
agreement on her behalf at that time, so any agreement reached by counsel would
serve simply to inform the trial court’s own resolution of the issues. Counsel’s lack
of authority was made explicit in connection with the child custody issues, when the
trial court, counsel, and the guardian ad litem discussed whether an agreement
between counsel would be the basis of a “consent order.” The trial court explained:
“I’m making it the order of the court. I’m not going to require that [Ernest’s counsel]
consent to something that he is not really feeling like he is in a position to consent
to.”
The trial court and counsel did not specifically address the limitations on the
ability of Ernest’s counsel to bind Ernest to an agreement on the non-custodial issues.
10 But nothing in the record suggests that Ernest’s counsel had more authority to consent
to an agreement on the non-custodial issues than he had on the custodial issues. We
may infer that the trial court took the same approach to the resolution of the non-
custodial issues, that his decree would reflect the order of the court, rather than the
agreement of the parties.
Simply put, the record shows that this was a contested divorce that went to a
bench trial and that the trial court based the ultimate decree on counsels’ resolution
of the non-custodial issues, while recognizing that such resolution was not itself an
enforceable agreement between the parties. To the extent Ernest argues counsels’
resolution of the issues was not a proper basis for the decree, that argument fails for
the reasons discussed above in Division 2: at the hearing her counsel agreed to this
method of resolving the issues, in lieu of presenting evidence at the bench trial.
To the extent Ernest argues that the decree does not reflect the resolution
reached by counsel, she has not shown error by the record. See Dept. of Human
Resources v. Allison, 276 Ga. 175, 178 (575 SE2d 876) (2003) (“the burden is on the
appellant to show error by the record”) (citations and punctuation omitted). Instead,
she points to the affidavit of her counsel and its attached exhibits, which were not
presented as evidence to the trial court until after the trial court entered the orders on
11 appeal. As discussed above in Division 2, we cannot consider that material on appeal
and we have struck it from the appellate record.
3. Reapportionment of guardian ad litem fees.
Ernest argues that the trial court erred in ordering her to reimburse Moffa for
his portion of the guardian ad litem’s final bill. Earlier the trial court had ordered each
side to pay half of the bill, but Moffa requested the reapportionment on the ground
that Ernest’s actions had expanded the guardian ad litem’s investigation. Ernest
argues that the reapportionment ruling should be reversed because the trial court did
not “reserve” the issue in his earlier order, upon which Ernest says she relied.
A trial court may order a guardian ad litem “be paid by the parties in
proportions and at times determined by the judge.” OCGA § 19-9-3 (g). The amount
and apportionment of the guardian ad litem’s fees is a matter for the trial court’s
discretion. Gordon v. Abrahams, 330 Ga. App. 795, 800 (3) (c) (769 SE2d 544)
(2015); Ga. Unif. Super. Ct. R. 24.9 (8) (g).
Ernest has not shown that the trial court’s reapportionment ruling was an abuse
of the discretion afforded by OCGA § 19-9-3 (g). The trial court’s order appointing
the guardian ad litem expressly provided that “[t]he final apportionment of the
[g]uardian ad [l]item’s bill shall be determined by the [c]ourt at the close of the case,”
12 and the case was still pending before the trial court when he entered the order
reapportioning the guardian ad litem fees, because up to that point the trial court had
not yet resolved the issue of attorney fees. See Jarvis v. Jarvis, 291 Ga. 818, 819 (1)
(733 SE2d 747) (2012) (divorce decree “did not become a final judgment for
purposes of appeal until the trial court issued its order awarding attorney[] fees”). The
trial court had the inherent authority to modify his judgments while the case was still
pending before him. See Bagley v. Robertson, 265 Ga. 144, 146 (1) (454 SE2d 478)
(1995).
The only authority that Ernest cites for this claim of error, Richardson v.
Richardson, 237 Ga. 830 (229 SE2d 641) (1976), does not support her contention that
the trial court abused his discretion. In Richardson, our Supreme Court affirmed an
award of attorney fees under a different statute, Code Ann. § 30-202.1, which is now
codified as OCGA § 19-6-2 and governs the grant of attorney fees in actions for
alimony or for divorce and alimony. Richardson, supra at 831-832 (1). The Court in
Richardson rejected the appellant’s argument that an award of attorney fees in a
temporary alimony order was “a final and complete award of attorney fees” that the
trial court lacked jurisdiction to amend. Id. at 831 (1). Instead, the Court held that
“[t]he fact that a court may expressly reserve jurisdiction [in a temporary alimony
13 order] to make an additional award [of attorney fees under Code Ann. § 30-202.1]
does not mean that such express reservation of jurisdiction is mandatory[.]”
Richardson, supra at 831 (1) (citation omitted; emphasis supplied). To the extent this
decision has any bearing on a trial court’s ability to reapportion guardian ad litem fees
under OCGA § 19-9-3 (g), it stands for the proposition that the trial court was not
required to “reserve” the issue in his earlier apportionment order, contrary to Ernest’s
argument.
4. Attorney fees and costs of litigation.
After an evidentiary hearing, the trial court awarded Moffa attorney fees and
costs of litigation under OCGA § 9-15-14 (b), which permits an award of
reasonable and necessary attorney[ ] fees and expenses of litigation in any civil action in any court of record if [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[.]
We “will affirm a trial court’s award of attorney fees pursuant to subsection (b) absent
an abuse of discretion.” Ettrick v. SunTrust Mtg., 349 Ga. App. 703, 705 (2) (a) (824
SE2d 727) (2019). Under that standard, we “review the trial court’s legal holdings de
14 novo, and we uphold the trial court’s factual findings as long as they are not clearly
erroneous, which means there is some evidence in the record to support them.”
Lawrence v. Lawrence, 286 Ga. 309, 310 (1) (687 SE2d 421) (2009).
(a) Findings of sanctionable conduct.
The trial court based the attorney fee award on a finding that Ernest had
“engaged in improper conduct that caused delays and greatly and unnecessarily
expanded the litigation.” He cited two general categories of sanctionable conduct —
Ernest’s actions contributing to the litigation of an emergency motion regarding the
school enrollment of some of the children and her actions related to her ongoing
substance abuse issues — and he described specific instances of Ernest’s conduct
within those categories.
The following evidence and statements in place of counsel,1 viewed in the light
most favorable to the trial court’s ruling, supports the findings of sanctionable
1 We rely on statements made by Moffa’s counsel, without objection, at the hearing on the attorney fee motion. See Sherman v. City of Atlanta, 293 Ga. 169, 173- 174 (4) (744 SE2d 689) (2013) (“Attorneys are officers of the court and a statement to the court in their place is prima facie true and needs no further verification unless the same is required by the court or the opposite party.”) (citation, punctuation, and emphasis omitted). We also rely on material from the guardian ad litem’s report, which was admitted into evidence at the bench trial without objection. See OCGA § 24-8-802 (“if a party does not properly object to hearsay, . . . the hearsay evidence shall be legal evidence”).
15 conduct. As to the school enrollment issue, there was evidence that in late July 2018,
the parties’ counsel and the guardian ad litem agreed to seek a continuance of the
bench trial then set for July 23. In the meantime, Moffa would continue to have
physical primary custody of the children and Ernest would exercise visitation
supervised by her sister. But shortly before the beginning of the school year, Ernest’s
counsel and Ernest’s father informed the guardian ad litem that Ernest’s parents had
refused to continue to pay the children’s tuition at the private school they had been
attending unless Moffa agreed to let the children live with Ernest’s sister. Neither
Moffa nor Ernest could pay the tuition themselves. After Moffa and his counsel
attempted, unsuccessfully, to get more information about this situation or confirm that
the tuition had been or would be paid, Moffa enrolled the children in a local public
school. Ernest’s parents ultimately paid the tuition, but Moffa decided to keep the
children in the public school anyway, leading Ernest to file an emergency motion
asking the trial court to compel their enrollment in the private school. The trial court
did not issue a formal order ruling on the motion; however, the judge’s law clerk sent
the parties’ counsel an email informing them that the judge felt that the parties needed
to maintain the status quo and keep the children in the private school, that if Moffa
did not re-enroll them in the school immediately the judge would consider that an act
16 of bad faith on his part, and that if Ernest’s parents did not fund the tuition the judge
would consider that a sanctionable act.
As to the substance abuse issue, the parties’ consent temporary order
conditioned Ernest’s visitation with the children on her not using alcohol. And by late
July 2018, Ernest was aware that her use of alcohol would be a significant factor in
the trial court’s custodial decision, because the guardian ad litem had informed
counsel of her preliminary assessment regarding custody. Ernest repeatedly told the
guardian ad litem that she was not using alcohol. But investigations and discovery
conducted by the guardian ad litem and Moffa’s counsel revealed that in the weeks
preceding the September 23 bench trial, Ernest was frequently abusing alcohol and
other drugs. The guardian ad litem documented that abuse in detail in her report.
Nevertheless, during this time Ernest resisted Moffa’s efforts to settle the custodial
issues so as to give him permanent physical custody of the children. See Reid v. Reid,
348 Ga. App. 550, 556 (2) (823 SE2d 860) (2019) (holding that trial court may
consider settlement offers in determining whether party engaged in sanctionable
conduct under OCGA § 9-15-14 (b)).
These substance abuse problems played a role in Ernest’s failure to appear at
the bench trial. Her trial counsel unsuccessfully sought a continuance on the ground
17 that Ernest was being admitted into an out-of-state residential rehabilitation facility
on September 25, the day before the trial was set to begin. But Ernest was not at the
facility on the first day of trial. She was still in town and had spent the evening of
September 25 and the early morning hours of September 26 at a local bar. On the first
morning of trial, her counsel did not know where she was and had been unable to
contact her. Ernest failed to appear for the second day of trial because she was in jail.
She had been on active probation for a family violence offense against Moffa and the
night before the second day of trial she was arrested for a probation violation in
connection with a drug charge.
In light of this evidence, we find no error in the trial court’s determination that
Moffa was entitled to an award under OCGA § 9-15-14 (b). “[T]he trial court’s order
sufficiently identifies the sanctionable conduct, and, having reviewed the . . . record
in this case, we cannot say that the trial court abused [his] discretion in finding the
identified conduct to be sanctionable.” Reid, 348 Ga. App. at 554 (2). While Ernest
ultimately prevailed in requiring Moffa to enroll the children at the private school, her
attempt to force a change in primary physical custody by withholding the children’s
school tuition generated in the first instance the dispute over school enrollment and
the litigation required to resolve that dispute. Ernest’s untruthfulness about her
18 continued substance abuse, a fact that significantly impacted the custodial issues in
this case, required additional work on the part of the guardian ad litem, the parties,
and the trial court. Moffa was forced to prepare for a contested trial on issues of
custody on which Ernest had little if any chance of prevailing, given her ongoing
substance abuse problems and the guardian ad litem’s recommendation. And the
difficulties created by Ernest’s failure to appear for trial are obvious. So we are not
persuaded by Ernest’s arguments that her conduct was not sanctionable.
(b) Relationship of fees to sanctionable conduct.
But the fact that Ernest engaged in sanctionable conduct does not end our
inquiry. “An award under [OCGA § 9-15-14 (b)] must be supported by sufficient
proof of the actual costs and the reasonableness of those costs . . . and the trial court
must limit the fees award to those fees incurred because of the sanctionable conduct.”
Reid, 348 Ga. App. at 553-554 (2) (citations, punctuation, and emphasis omitted).
“[L]ump sum or unapportioned attorney fees awards are not permitted in Georgia, and
. . . the trial court’s order [must show], on its face, . . . the complex decision making
process necessarily involved in reaching a particular dollar figure[.]” Moore v.
Hullander, 345 Ga. App. 568, 573 (2) (c) (814 SE2d 423) (2018) (citation and
punctuation omitted).
19 The trial court’s order met this requirement. The trial court did not award a
lump sum. Instead, he listed in his order the components of the fee award with
specific descriptions that tied the fees to sanctionable conduct: fees and expenses
related to resolution of the school enrollment issue; fees and expenses related to
Moffa’s investigation of and development of evidence regarding Ernest’s ongoing
substance use and associated conduct in August and September 2018; fees and
expenses related to preparation for and attendance at the bench trial; and fees and
expenses related to the motion for attorney fees. And there is evidence, in the form
of billing records and the affidavit of Moffa’s counsel, supporting the reasonableness
and specific amounts of the fees allocated by the trial court.
Judgment affirmed. Rickman, P. J., and Senior Appellate Judge Herbert E.
Phipps concur.