Wesley Wade Wilson v. Berenice Guerrero

• Court: Court of Appeals of Georgia
• Decided: January 28, 2020
• Docket: A19A2475
• Status: Published

Opinion

FIFTH DIVISION MCFADDEN, C. J., MCMILLIAN, 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. http://www.gaappeals.us/rules

January 28, 2020

In the Court of Appeals of Georgia A19A2475. WILSON v. GUERRERO.

MCMILLIAN, Presiding Judge.

Following our grant of his application for discretionary review, Wesley Wade

Wilson appeals from the denial of his motion for new trial in this child support case,

contending that the trial court failed to comply with OCGA § 19-6-15 in calculating

the child support award and that the court erred by awarding attorney fees. As more

fully set forth below, we now vacate the award of child support and attorney fees and

remand for further proceedings.

The record shows that appellant Wilson and appellee Berenice Guerrero

(hereafter “Father” and “Mother”) are the unmarried parents of a daughter, who was

born in December 2007. In November 2009, the parties entered into a Final Consent

Order (“Consent Order”), pursuant to which the Father legitimated the child; the consent order further established primary physical custody in the Mother with

visitation granted to the Father and set the amount of child support the Father was to

pay to the Mother on a monthly basis. In 2016, the Father filed a petition for

modification of the consent order seeking to modify the provision of the Consent

Order that prohibited either parent from having unrelated members of the opposite

sex stay overnight while the child was in their custody. The Mother, who had since

married, filed an answer to the petition in which she opposed the change to the

overnight guest provision, noting that the Father’s violation of the provision had been

the subject of previous court proceedings that he did not mention in his petition; the

Mother also filed a counterclaim seeking an increase in child support.

Following an evidentiary hearing, the trial court entered a final order on April

3, 2017, in which it denied the Father’s request to remove the provision of the

Consent regarding overnight visitation.1 Additionally, the trial court granted the

Mother’s request for an increase in child support from $900 per month to $1142 per

month and her request for attorney fees in the amount of $5,000.

Father filed a “Motion for New Trial and Motion for Reconsideration,”

challenging the award of attorney fees on several grounds and challenging the

1 This portion of the trial court’s order is not challenged on appeal.

2 evidence presented to support the finding by the trial court that the Mother had paid

$4,195 a year for extracurricular activities for the child. The trial court denied the

motion for reconsideration on May 10, 2017, and following a hearing, denied the

motion for new trial on May 15, 2018. The Father filed an application for

discretionary review, which we granted, and then a timely notice of appeal.2

1. In two related enumerations of error, Wilson challenges the attorney fee

award, contending that the trial court erred in awarding attorney fees based on the

court’s inherent power to award fees. We agree that reversal of the attorney fee award

is required and that the case must be remanded for further proceedings on this issue.

The record shows that the Mother made a request for attorney fees in her

answer and counterclaim, but did not specify a basis for the award other than she had

been forced to hire counsel to defend against the modification petition. She did not

subsequently file a separate motion requesting a fee award, and although the Mother

was questioned concerning the amount she paid to retain counsel at the hearing on the

modification petition and her counsel alleged the Father, who is an attorney practicing

family law, had engaged in certain discovery abuses, the Mother never mentioned a

2 We dismissed the Father’s original appeal, which was docketed in this Court as Case No. A18A0546, on the basis that the judgment was not yet final because the trial court had not yet ruled on the pending motion for new trial.

3 statutory basis for the award. The Father’s attorney opposed the award, pointing out

that the Mother had never filed a motion to compel or request for sanctions due to the

alleged discovery abuses.

In the final order on the modification petition, the trial court outlined the

Father’s alleged discovery abuses, which it summarized as his failure to fully respond

to or supplement discovery requests despite repeated requests and controlling law and

his failure to provide a signed and notarized Domestic Relations Financial Affidavit

(“DRFA”) to the trial court or the Mother as required by the governing statute. Noting

its “broad discretion” and “inherent power” to award fees when a motion is made by

either party or on its own initiative, the trial court concluded that “[g]iven the fact that

the Father is a licensed attorney practicing family law, the Court finds his behavior

inappropriate” and ordered him to pay $5,000 to the Mother’s counsel within 30 days.

The Father challenged the fee award in his motion for new trial/motion for

reconsideration, arguing as he does on appeal that the evidence was insufficient to

support the fee award; that the Mother’s counsel did not identify with particularity

what conduct he was being sanctioned for; the trial court failed to provide a statutory

basis for the award; and he was not put on notice as to the statutory basis for the

award. In its order denying the Father’s motion for new trial, the trial court stated that

4 the attorney fee award “reflects both the relative financial position of the parties and

was reflective of Plaintiff’s inappropriate litigation tactics during the case[,]” but

again did not reference any particular statutory basis authorizing the award.

“Generally, an award of attorney fees is not available in Georgia unless

authorized by statute or contract.” (Citation and punctuation omitted.) Ward v. Ward,

289 Ga. 250, 251 (2) (710 SE2d 555) (2011). Here, the Mother requested fees in her

counterclaim because she had been forced to hire an attorney to defend against the

modification petition, but she has never referenced any particular statute as

authorizing attorney fees in this case. The trial court also did not cite to any statute

authorizing the award in either the initial order on the modification petition or in the

order denying the Father’s motion for new trial; in fact, the only reference to a statute

in relation to the fee award was the Father’s attorney’s passing reference to OCGA

§ 9-15-14 in arguing against the award at the modification petition hearing.

We agree with the Father that the attorney fee award cannot stand under these

circumstances. Although in the modification order the trial court made references to

factors that indicate that the award was being made under OCGA § 9-15-14 (b) due

to sanctionable conduct, the court also referred to the relative financial position of the

parties in the order denying the Father’s motion for new trial, which would indicate

5 the award was being made under OCGA § 19-6-2. However, an award under OCGA

§ 19-6-2 based on the financial circumstances of the parties is not applicable here

because it only applies to proceedings for alimony, divorce and alimony, or contempt

of actions arising out of same, including contempt actions involving child custody or

visitation rights in divorce and alimony cases. Suarez v. Halbert, 246 Ga. App. 822,

825 (1) (543 SE2d 733) (2000) (OCGA § 19-6-2 “applies exclusively to litigation

derived from divorce and alimony disputes[.]”).3 Accordingly, the fee award must be

vacated and the case remanded for further proceedings on the issue of attorney fees.

Id.

2. The Father next argues that the trial court erred by including $4,195 in child

care expenses on Schedule D of the child support worksheet because the Mother did

not present any documentary evidence which would support an award of work related

child care expenses. The Father also argues that those expenses, if any, should have

been listed as extracurricular expenses on Schedule E of the child support worksheet

instead and that because the expenses should have been treated as expenses for

3 Although OCGA § 19-6-15 (k) (5) authorizes an award of fees in cases involving modification of child support, neither party makes any argument that fees were awarded under that section, and the trial court gave no indication the award was made pursuant to that section.

6 extracurricular activities, the trial court was required to enter findings of fact to

support a deviation from the basic child support obligation as mandated by OCGA

§ 19-6-15 (c).

To resolve these issues and address the Mother’s contention on appeal that at

least some of these issues have been waived, we must set out the relevant testimony

and argument from the hearing on the modification petition, the motion for new trial,

and the hearing on the motion for new trial. Turning first to the hearing on the

modification petition, the transcript shows that the Mother testified that she was

seeking an increase in child support because the Father’s income had increased and

because she believed that the Father should pay for part of the child’s extracurricular

activities. On cross-examination, the Mother admitted that she did not have

documentary evidence of the specific costs of the extracurricular activities with her

at the hearing, and on redirect examination she testified that she had provided the

Father proof that the costs of the child’s extracurricular activities, summer care, and

school care amounted to approximately $4,195. At the conclusion of the evidence, the

Father objected on the basis that the Mother did not present any evidence regarding

the child’s extracurricular activities or child care costs. In the modification order, the

trial court appeared to reject this contention, finding that the Mother testified without

7 objection that she incurred $4,195 in expenses for extracurricular activities and

annotated those costs in her timely filed DRFA.

The Father challenged this finding in his motion for new trial, arguing again

that the only evidence presented as to the costs was the Mother’s testimony at the

hearing, and that the Mother did not specify what activities the child participated in

or how much each activity cost. At the hearing on the motion, the Father elaborated

on these arguments and also asserted that there was no evidence presented at the

hearing to determine the breakdown of the amount spent on extracurricular activities,

after school activities, and summer programs; the Mother had placed the activities

under Schedule D child care, not Schedule E extracurricular activities on the child

support worksheet; and extracurricular activities would require a deviation from the

child support guidelines while childcare expenses would not. The Mother’s attorney

argued that the expenses were properly listed as child care expenses because the child

engaged in these activities while the Mother is at work, and that no deviation was

required because the expenses did not meet the threshold amount at which a deviation

is required. The trial court denied the motion for new trial, finding that the child

support calculation was based on the evidence presented at the hearing and was

appropriate.

8 Turning to the Father’s contentions on appeal, we first note that our Supreme

Court has found that testimony alone about the amount incurred for child care

expenses may be sufficient proof of those expenses under the “any evidence”

standard of review of the trial court’s findings of fact. See Taylor v. Taylor, 293 Ga.

615, 617 (2) (748 SE2d 873) (2013). But see OCGA § 19-6-15 (h) (1) (D) (“If child

care is or will be provided by a person who is paid for his or her services, proof of

actual cost or payment shall be shown to the court before the court includes such

payment in its consideration.”). However, even if the Mother’s testimony was

sufficient to prove that the expenses were incurred and paid, we believe the remainder

of the Father’s contentions have merit. Although the Mother argued at the hearing on

the motion for new trial and now argues on appeal that the expenses were incurred

to provide activities for the child while the Mother was at work, and thus were

properly categorized as child care, the Mother’s testimony does not fully support that

contention. At the hearing, she testified that the $4,195 was the amount expended for

summer care, school care, and extracurricular activities, drawing no distinction

between expenses that were necessary for the child’s “care” and her extracurricular

activities. Because it is not altogether clear from the record which categories of

expenses were included in the $4,195, or whether all of the child’s extracurricular

9 activities that were included as child care on the worksheet occurred while the Mother

was working and thus were properly included as child care expenses on Schedule D,

instead of extracurricular activity expenses on Schedule E, the trial court’s

modification of child support must also be vacated and this case remanded for further

proceedings consistent with this opinion. Further, even if the Father did not make the

same precise argument that he now makes on appeal concerning the trial court’s

compliance with the written findings requirement of OCGA § 19-6-15,4 because this

case must be remanded for further proceedings and a new order issued, this deficiency

can be remedied as necessary depending on the outcome of the proceedings upon

remand. See Kennedy v. Kennedy, 309 Ga. App. 590, 592-93 (1) (a) & (b) (711 SE2d

103) (2011) (concerning the need for written findings when a deviation is ordered).

3. Lastly, the Father contends that the trial court erred by finding that he failed

to file an answer to the Mother’s counterclaim because he was not required to file an

answer unless the court first ordered him to do so. The Father is correct that OCGA

§ 9-11-12 specifically provides that an answer to a counterclaim is not required unless

4 See Winchell v. Winchell, 2019 Ga. App. LEXIS 564, *6-7 (1) (Case No. A19A1531, decided October 16, 2019) (discussing waiver of compliance with the written findings requirement of OCGA § 19-6-15).

10 ordered by the trial court. The Father is also correct that in its final order on

modification, the trial court noted that “[t]he Father failed to timely file an Answer

or Objection on [the] counter-claim[.]” However, it does not appear that the trial court

imposed any penalty or otherwise ruled against the Father on the basis that he failed

to answer the counterclaim. Accordingly, this enumeration provides no basis for

reversal.

Judgment vacated and case remanded with direction. McFadden, C. J., and

Senior Appellate Judge Herbert E. Phipps concur.