FIRST DIVISION BARNES, P. J., GOBEIL and PIPKIN, 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. Please refer to the Supreme Court of Georgia Judicial Emergency Order of March 14, 2020 for further information at (https://www.gaappeals.us/rules).
May 15, 2020
In the Court of Appeals of Georgia A20A0695. McLAWS v. DREW.
BARNES, Presiding Judge.
This appeal arises out of a petition for contempt filed in Cobb County Superior
Court by Monica Drew against her ex-husband, Jay Drew. After Monica prevailed on
the petition, one of Jay’s attorneys, Rebecca McLaws, filed a motion for a new trial
or, alternatively, a motion to set aside and for reconsideration. McLaws subsequently
filed a motion seeking the recusal of the trial judge. Following the trial court’s denial
of both motions, Monica moved under OCGA § 9-15-14 (b) for the attorney fees and
expenses incurred in defending against the same. The trial court granted the motion
for attorney fees and entered judgment against both McLaws and Jay. McLaws now
appeals from that order, arguing that the trial court erred in granting the motion for
attorney fees because both the motion for a new trial and the motion seeking recusal of the trial judge were supported by relevant legal authority and the facts of record.
McLaws further contends that, even if the attorney fee award was proper, the order
must be vacated because: (1) it contains no specific findings of fact as to the alleged
misconduct of Jay or his attorney; and (2) it failed to identify what portion of the
requested attorney fees was attributable to the alleged misconduct. For reasons
explained more fully below, we find that the trial court erred in granting the motion
for attorney fees, and we therefore reverse the trial court’s order.
We review a trial court’s award of attorney fees under OCGA § 9-15-14 (b) for
an abuse of discretion. Shoenthal v. DeKalb County Employees Retirement System
Pension Board, 343 Ga. App. 27, 30 (805 SE2d 650) (2017). Such an abuse of
discretion occurs “where a ruling is unsupported by any evidence of record or where
that ruling misstates or misapplies the relevant law.” (Citation and punctuation
omitted.) Donohoe v. Donohoe, 323 Ga. App. 473, 476 (746 SE2d 185) (2013).
The record shows that Monica and Jay were divorced in 2017, and the couple
has one child. Monica filed her contempt petition in July 2018, seeking monies owed
under the parties’ divorce decree for the child’s school tuition, extracurricular
activities, and counseling sessions. The petition also sought to recover monies owed
from checks returned by the bank, and requested an order requiring Jay to make all
2 future payments directly to the court. On October 4, 2018, the trial court held a
hearing on the contempt petition. Jay appeared at that hearing, represented by
attorney Justin Chin. There is no transcript of the hearing, although Chin submitted
an affidavit stating that he requested that the hearing be taken down, “but was told
that the court reporter was busy.” Chin further averred that during the lunch break of
the October 4 hearing, Jay began experiencing symptoms of a heart attack. Chin
drove his client to a local hospital and left Jay there while Chin returned to court.
Chin informed the court of his client’s status, offered to show the court a video of his
client at the hospital, and requested a continuance. The trial court declined to view
the video and denied the request for a continuance.
Chin further asserted that he reviewed the pleadings prior to the hearing, and
they did not indicate “that child support and/or arrearage” was being sought.
Additionally, Chin stated that Monica presented no documentary evidence showing
that Jay owed the amounts claimed. Chin also averred that Monica’s lawyer submitted
neither an affidavit nor billing invoices to substantiate her request for attorney fees,
and Chin was not provided an opportunity to cross-examine plaintiff’s counsel as to
the reasonableness of those fees. Chin’s affidavit testimony is unrefuted, and with
respect to his claims regarding a lack of evidence, the record shows that on the day
3 of the hearing, Chin filed with the clerk of court a list of the exhibits introduced by
the defense at the hearing.1 No such evidence list was filed by Monica.
Immediately after the contempt hearing, the trial court entered an order finding
Jay was in willful violation of the parties’s divorce decree. Specifically, the court
found that Jay owed Monica $4,411 in child support; $5,874 for school tuition for the
previous and current years; $1,210 for the child’s extracurricular activities; and $410
for the child’s counseling services. The court further found that Jay had the ability to
pay those amounts, because “he [was] capable of obtaining employment.”
Additionally, the court stated it had considered the financial circumstances of both
parties and that under OCGA § 19-6-2, Monica was entitled to attorney fees of
$2,600. The order required Jay to pay the entire amount owed ($14,505) to the Cobb
County Sheriff’s office by November 5, 2018. The order further provided that if Jay
failed to pay by that date, the Cobb County Sheriff was to arrest Jay and hold him in
jail until he purged himself of contempt by paying the entire amount.
1 Those documents included a March 6, 2018 email between Monica and Jay; photo copies of checks; the child’s school enrollment contract; evidence of vocal lesson payments, and monthly invoices for piano lessons.
4 On November 5, 2018, McLaws filed a motion for a new trial or, in the
alternative, a motion to set aside and for reconsideration. The motion alleged that the
trial court had erred in refusing to grant a continuance following
Jay’s medical emergency, resulting in a violation of Jay’s constitutional right to due
process; in allowing evidence of Jay’s alleged arrearage of child support payments,
as the same had not been requested in the petition and Jay therefore had no notice he
needed to defend against that claim; in failing to consider Monica’s in judicio
admissions relating to the alleged child support arrearage; in awarding attorney fees
without receiving evidence or testimony as to the amount of those fees; and in failing
to consider the financial circumstances of the parties before awarding attorney fees
under OCGA § 19-6-2. In support of the new trial motion, McLaws submitted Jay’s
affidavit, in which he testified as to his trip to the hospital during the lunch break of
the contempt hearing. Jay further testified that he lacked the ability to pay the amount
required by the court, stating that he did not own a home and had neither a retirement
account nor other assets he could liquidate. Additionally, Jay averred that he was
never questioned by an attorney or the court as to his ability to pay an award of
attorney fees. Jay’s affidavit also contested the amount awarded to Monica by the
court, stating that the evidence he presented at the hearing showed he did not owe the
5 amount of child support arrearage awarded; that in calculating school tuition, the trial
court ignored the evidence showing he had paid the amounts owed for August,
September, and October 2018; and that the amount of money awarded Monica for the
child’s extracurricular activities exceeded the amount allowed by the divorce decree.
Although the filing of the motion for a new trial operated as a supersedeas to
the judgment of contempt, the trial court apparently failed to communicate that fact
to the Cobb County Sheriff’s department and, on November 26, 2018, Jay was
arrested and incarcerated. The following day, McLaws filed a motion seeking both
a stay of enforcement of the contempt order and Jay’s immediate release from
custody. According to an affidavit submitted by McLaws, before she filed the motion,
she contacted the trial court to inform it of the supersedeas effect of Jay’s new trial
motion and presented the court with a proposed order for Jay’s immediate and
unconditional release. The court, however, declined to enter the order and
conditioned Jay’s release on payment of $8,000 to Monica. On November 30, 2018,
the trial court entered a consent order releasing Jay from jail, noting his payment of
$8,000, and requiring him to pay the balance of $6,505 on or before December 17.
On December 7, in her capacity as Jay’s attorney, McLaws filed a motion
seeking the disqualification or recusal of the trial judge. In support of the this motion,
6 McLaws argued that the trial court’s repeated violation of Jay’s constitutional right
to due process had created an appearance that the trial judge could not be impartial
in deciding Jay’s motion for a new trial. To support the arguments with respect to the
violation of Jay’s constitutional rights, McLaws submitted her own affidavit and the
affidavit of Chin, detailing the trial court’s refusal to continue the hearing after Jay
suffered a medical emergency and its decision to jail Jay despite the filing of the
motion for a new trial.
On December 10, the trial court entered an order denying Jay’s motion to
recuse. One week later, on December 17, the trial court held a hearing on both Jay’s
compliance with the contempt order and his motion for a new trial. That same day,
Jay filed notice of his Chapter 13 bankruptcy petition, , which stayed enforcement of
the contempt order. The court, therefore, heard only the new trial motion. At that
hearing, McLaws set forth the grounds for the new trial, including the failure to grant
a continuance, the failure to consider the parties’ financial conditions before awarding
attorney fees, the lack of evidence supporting the amounts allegedly owed under the
divorce decree, and the evidence supporting a reduction in the amount awarded
Monica. Less than three hours after the hearing, the trial court entered an order
denying the motion for a new trial. In its order, the court did not address all of the
7 arguments made by McLaws in either her written motion or at the hearing. Instead,
the court only stated that the parties had the opportunity to present arguments and “at
the hearing, Defendant argued that the Court should vacate its October 4, 2018
[order] because the Court did not grant any of Defendant’s requests for continuance.”
Following entry of the trial court’s order, Monica moved under OCGA § 9-15-
14 (b) for an award of attorney fees and expenses associated with defending against
both the motion to recuse and the motion for a new trial. The court heard that motion
on August 29, 2019,2 and the following morning it entered an order granting the same
and assessing $4,765.75 in attorney fees against both McLaws and Jay. McLaws then
filed an application for a discretionary appeal, which we granted. This appeal
followed.
1. Under OCGA § 9-15-14 (b), a trial court has the discretion to award attorney
fees and expenses against any party the court finds “brought or defended an action,
or any part thereof, that lacked substantial justification.” The statute defines “lacking
substantial justification” as “substantially frivolous, substantially groundless, or
substantially vexatious.” Thus, “a court is not authorized to award attorney fees under
2 That hearing apparently was not transcribed, as no transcript is included in the appellate record.
8 OCGA § 9-15-14 (b) where a ruling on the claim [or motion] at issue is dependent
upon the resolution of a factual or legal dispute.” Lee v. Park, 341 Ga. App. 350, 355
(1) (800 SE2d 29) (2017). Where a trial court finds that an award of attorney fees is
warranted, it must enter an order specifying the exact statutory basis for the award
and making express findings of fact to support its conclusion. Cook v. Campbell-
Cook, 349 Ga. App. 325, 328 (1) (826 SE2d 155) (2019). These findings must include
the specific conduct of the party and/or his attorney justifying the award. Id.
Moreover, “the trial court must limit the fee[] award to those fees incurred because
of the sanctionable conduct. Lump sum or unapportioned attorney fees awards are not
permitted in Georgia.” (Citation and punctuation omitted.) Id. at 329 (2).
Here, the trial court’s order contains no express factual findings. Instead, the
court concluded that an award of attorney fees was warranted because, “[a]s
delineated in” Monica’s response to the new trial motion, Jay’s motion “was baseless
in every respect. The motion was deficient and lacked legal authority” and “failed to
comply with Uniform Superior Court Rules.” The court further concluded that the
motion to recuse warranted an award of fees because Jay “failed to satisfy the
conditions [for recusal set forth in Uniform Superior Court Rule] 25.3.” We find no
merit in any of the trial court’s conclusions.
9 (a) With respect to the motion for a new trial, a review of both Monica’s
response to that motion and the hearing on it indicate that the court’s conclusion
regarding the alleged deficiencies in the motion concerned procedural matters, rather
than the merits of that motion. Specifically, Monica argued that the written motion
cited no statutory basis for a new trial and contained no citation of legal authority, in
violation of Uniform Superior Court Rule 6.1. Additionally, quoting OCGA § 9-11-
60,3 Monica’s counsel argued that McLaws had failed to identify an “intrinsic defect”
not appearing on “the face of the record or the pleadings.”
We first note that the Uniform Superior Court Rule (“USCR”) relied upon by
Monica and the trial court requires that pretrial motions “include or be accompanied
by citations of supporting authorities and, where allegations of stipulated facts relied
upon, supporting affidavits, or citations to evidentiary materials of record.” USCR
6.1. No such requirement exists with respect to a motion for a new trial. See USCR
41. Moreover, despite Monica’s claim that Jay cited no statutory basis for his motion,
OCGA § 9-11-60 (c) provides such a basis. And while motions for a new trial are
available only to challenge some “intrinsic defect” that does not appear on the face
3 That statute provides, in relevant part, that “[a] motion for new trial must be predicated upon some intrinsic defect which is not appear upon the face of the record or pleadings.” OCGA § 9-11-60 (c).
10 of the record or pleadings, “errors allegedly committed by the trial court” constitute
such an intrinsic defect. Gulledge v. State, 276 Ga. 740, 741 (1) (583 SE2d 862)
(2003). See also Parker v. Robinson, 337 Ga. App. 362, 363 (1) (787 SE2d 317)
(2016) (a motion for a new trial “is a proper vehicle . . . for challenging factual
findings made by . . . a judge in a trial-like setting” and such a motion may be used
to challenge a trial court’s finding of contempt).
Furthermore, our review of the record shows that the grounds for a new trial
set forth in Jay’s motion were not substantially frivolous, groundless, or vexatious.
First, in a contempt proceeding, which could result in a loss of the defendant’s liberty,
due process requires that a defendant be given notice that adequately informs him of
the claim or claims he must defend against. See Ford v. Ford, 270 Ga. 314, 315 (509
SE2d 612) (1998). See also Dehco, Inc v. Board of Regents of the University System
of Georgia, 350 Ga. App. 760, 762 (1) (830 SE2d 333) (2019) (under Georgia’s Civil
Practice Act, a pleading must provide a defendant with fair notice of the claim
asserted and the relief sought). Having reviewed the contempt petition filed by
Monica, we agree that it does not provide notice that she was seeking payment of
back child support. The petition sought monies owed under the parties’ divorce
decree for the child’s school tuition, extracurricular activities, and counseling
11 sessions, as well as monies owed “from checks returned by the bank.” Notably, the
petition does not specify whether the amounts sought with respect to the returned
checks are bank fees, the amount of the checks, or both. Nor does the petition specify
whether the dishonored checks represented payments for tuition, extracurricular
activities, or child support.
Additionally, the assertion that the trial court violated Jay’s due process rights
when it refused to grant a continuance following his medical emergency has support
in the law. It is well-established that the requirements of due process apply in a civil
contempt proceeding. See Ford, 270 Ga. at 315; Norred v. Moore, 263 Ga. App. 516,
518-519 (2) (b) (588 SE2d 301) (2003). And due process includes the opportunity to
be heard. Ford, 270 Ga. at 315 (“an opportunity to be heard in defense before
punishment is imposed [is] basic in our system of jurisprudence”) (citation and
punctuation omitted). As Monica conceded in her brief responding to Jay’s new trial
motion, however, she was the only party afforded an opportunity to testify before the
lunch break of the contempt hearing. Jay, therefore, had a reasonable basis for
asserting that the trial court’s failure to grant a continuance following his medical
incident violated his right to due process.
12 Finally, the remaining grounds asserted by Jay in support of his motion for a
new trial all concerned whether the amount of money awarded Monica, including the
statutory attorney fees awarded under OCGA § 19-6-2, was supported by the
evidence. These grounds were not baseless, but rather were supported by the
unrefuted affidavits of both Jay and Chin.
In light of the foregoing, we find that Monica failed to show that she was
entitled under OCGA § 19-15-14 (b) to an award of the attorney fees and expenses
she incurred in defending the motion for a new trial, and the trial court abused its
discretion in concluding otherwise. See Lee, 341 Ga. App. at 355 (1).
(b) We further find that the trial court abused its discretion in awarding Monica
the attorney fees and expenses she incurred in defending against the motion to recuse.
Under Georgia law, a motion to recuse a judge must be accompanied by an
affidavit. The affidavit, in turn, must
clearly state the facts and reasons for the belief that bias or prejudice exists, being definite and specific as to time, place, persons and circumstances of extra-judicial conduct or statements, which demonstrate either bias in favor of any adverse party, or prejudice toward the moving party in particular . . . . Allegations consisting of bare conclusions and opinions shall not be legally sufficient to support the motion or warrant further proceedings.
13 USCR 25.2.
When the trial judge assigned to the case receives a motion to recuse, he or she
must make a threshold determination as to whether the motion is timely; whether the
affidavit is legally sufficient; and whether the affidavit “sets forth facts that, if
proved, would warrant the assigned judge’s recusal from the case.” Post v. State, 298
Ga. 241, 243 (1) (779 SE2d 624) (2015). “If all three criteria are met, another judge
shall be assigned to hear the motion to recuse.” (Citation and punctuation omitted.)
Id. See also USCR 25.3. Here, the trial court found that the affidavits submitted by
McLaws and Chin were insufficient for two reasons. Specifically, the court found that
the affidavits failed to set forth allegations of bias stemming from extra-judicial
conduct or statements. Additionally, the court found that, even assuming the
statements in the supporting affidavits were true, the conduct alleged was not “of such
a nature and intensity” that would prevent Jay from receiving impartial treatment
from the court. The trial court then relied on its finding as to the insufficiency of the
affidavits to award Monica attorney fees.
Despite the trial court’s conclusion to the contrary, the mere fact that the
affidavits were insufficient, standing alone, does not justify an award of attorney fees
under OCGA § 9-15-14. See, e.g., Shoenthal, 343 Ga. App. at 30 (the mere fact that
14 a party prevails on its motion to dismiss for failure to state a claim did not a justify
granting their motion for attorney fees). Instead, for purposes of OCGA § 9-15-14 (b),
the question is whether a party’s motion lacked substantial justification. Here, we
agree that the basis of the recusal motion was not extrajudicial conduct – i.e., the
motion was not based on something other than what the trial judge “learned from
participating in the case.” Henderson v. McVay, 269 Ga. 7, 8 (494 SE2d 653) (1998).
Nevertheless, we cannot say that the motion to recuse was without substantial
justification so as to warrant an attorney fee award. See Judicial Code of Conduct
Rule 2.11 (A) (1) (“Judges shall disqualify themselves in any proceeding in which
their impartiality might reasonably be questioned,” including when “[t]he judge has
a personal bias or prejudice concerning a party or a party’s lawyer . . . .”)
The record shows that the trial court twice overlooked well-established law to
incarcerate Jay in violation of his due process rights. First, the trial court entered an
impermissible self-executing contempt order, which provided for Jay’s imprisonment
without affording him a hearing to determine whether his failure to purge contempt
was willful. As we have explained previously, “[a] hearing on a party’s compliance
(or noncompliance) with purge conditions is necessary to satisfy due process for
several reasons.” Rocker v First Bank of Dalton, 343 Ga. App. 501, 506 (2) (806
15 SE2d 884) (2017). These reasons include the fact that “the final arbiter as to whether
compliance has been achieved must be the trial court” and, if the court finds that the
contemnor has failed to comply, it must determine that this failure was deliberate
before it may order the contemnor’s incarceration. Id. See also Norred, 263 Ga. App.
at 518 (2) (b) (under due process, a trial court may not order the incarceration of a
contemnor for failure to purge himself of contempt without providing him “an
opportunity at a hearing to show that his failure to pay the amount owed was not
willful”); Steele v. Colbert, 182 Ga. App. 680, 680 (356 SE2d 736) (1987) (given the
requirements of due process, a trial court “cannot assume that [any] failure” to
comply with purge conditions “will be unjustifiable”). The trial court then
compounded its initial due process violation when it failed to recognize that Jay’s
motion for a new trial operated as a supersedeas, barring the enforcement of the
contempt order. See OCGA § 9-11-62 (b) (“[t]he filing of a motion for a new trial .
. . shall act as supersedeas unless otherwise ordered by the court”); Payne v. Myatt,
351 Ga. App. 678, 679 (2) (832 SE2d 663) (2019) (given that he had filed a motion
for new trial, a party could not be held in contempt for failure to comply with the trial
court’s order requiring payment of attorney fees). Moreover, even after McLaws
pointed out to the trial court that it was in violation of OCGA § 9-11-62, the trial
16 court failed to remedy that violation by ordering Jay’s unconditional release from
custody. Instead, the court conditioned Jay’s release on his payment of more than half
of the amount he was previously ordered to pay, despite the fact that he was
contesting that amount. Given these facts, we cannot say that the motion to recuse the
trial judge was substantially frivolous, groundless, or vexatious. See Mondy v.
Magnolia Advanced Materials, 303 Ga. 764, 767-768 (2) (815 SE 70) (2018) (the
standard for recusal under the Code of Judicial Conduct “is an objective one” and
asks “whether a fair-minded and impartial person would have a reasonable perception
of the judge’s lack of impartiality based upon objective facts set forth in the affidavit
or reasonable inferences therefrom”) (citation and punctuation omitted).
2. In light of our holding in Division 1, we need not address McLaws’s
remaining claims of error.
For the reasons set forth above, we reverse the order of the trial court granting
Monica Drew’s motion for attorney fees under OCGA § 9-14-15 (b).
Judgment reversed. Gobeil and Pipkin, J. J., concur.