O.C.G.A. § 19-6-2 (2019)

Annotations

Law reviews. For article, “Attorney’s Fees in Alimony and Divorce Cases,” see 19 Ga. B.J. 23 (1956). For survey of Georgia cases dealing with domestic relations from June 1977 through May 1978, see 30 Mercer L. Rev. 59 (1978). For survey article on domestic relations, see 34 Mercer L. Rev. 113 (1982). For article, “Domestic Relations Law,” see 53 Mercer L. Rev. 265 (2001).

For annual survey of domestic relations law, see 56 Mercer L. Rev. 221 (2004). For annual survey of domestic relations law, see 58 Mercer L. Rev. 133 (2006). For survey article on domestic relations law, see 59 Mercer L. Rev. 139 (2007). For survey article on domestic relations law, see 60 Mercer L. Rev. 121 (2008). For annual survey on domestic relations, see 65 Mercer L. Rev. 107 (2013). For annual survey on domestic relations, see 69 Mercer L. Rev. 83 (2017). For annual survey on domestic relations, see 71 Mercer L. Rev. 83 (2019). For article with annual survey on domestic relations, see 73 Mercer L. Rev. 89 (2021).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION ATTORNEY’S FEES CONTEMPT General Consideration Law was constitutional and any modification or repeal must necessarily be made by the General Assembly of Georgia and not by the court. Murphy v. Murphy, 232 Ga. 352, 206 S.E.2d 458, 1974 Ga. LEXIS 947 (1974), cert. denied, 421 U.S. 929, 95 S. Ct. 1656, 44 L. Ed. 2d 87, 1975 U.S. LEXIS 1392 (1975). Court must consider financial circumstances. - When the trial court did not consider the financial circumstances of both parties as part of the court’s determination of the amount of attorney fees, if any, to be allowed in a contempt proceeding, there was no evidence that the exwife was able to pay the attorney fees ordered. Thus, if she failed to pay the awarded fees, the failure would not necessarily be a refusal to abide by the court’s order, but might simply arise from an inability to pay, tantamount to imprisonment for debt. Thedieck v. Thedieck, 220 Ga. App. 764, 470 S.E.2d 265, 1996 Ga. App. LEXIS 334 (1996). Attorneys’ fees award to the creditor (the debtor’s former spouse) that was related to the debtor’s unsuccessful efforts

to obtain modifications to the divorce decree was not a domestic support obligation (DSO) as defined in the Bankruptcy Code and, thus, was not a priority claim because there was no express determination by the Georgia state court that the fees were awarded as support based upon the relative financial circumstances of the parties rather than as a sanction for frivolous litigation. Mosely v. Mosely (In re Mosely), 577 B.R. 419, 2017 Bankr. LEXIS 3763 (Bankr. N.D. Ga. 2017). Court’s express reservation of jurisdiction. - Fact that court may expressly reserve jurisdiction to make additional award does not mean such reservation is mandatory. Richardson v. Richardson, 237 Ga. 830, 229 S.E.2d 641, 1976 Ga. LEXIS 1411 (1976). Court jurisdiction over matter of attorney fees. - Trial court does not lose jurisdiction of matter of attorney fees simply because term of court ended. Richardson v. Richardson, 237 Ga. 830, 229 S.E.2d 641, 1976 Ga. LEXIS 1411 (1976). O.C.G.A. § 19-6-2(a) is inapplicable to child custody modification actions. Wilson v. Perkins, 344 Ga. App. 869, 811

General Consideration (Cont’d) S.E.2d 518, 2018 Ga. App. LEXIS 152 (2018). No application to child custody and support dispute. - In a child custody and support contempt proceeding, the trial court did not err in finding the mother in contempt but erred in awarding the father attorney’s fees under O.C.G.A. § 9-15-14 without holding a hearing regarding reasonable and necessary fees, and erred in awarding fees under O.C.G.A. § 19-6-2, because that section applied only to cases of divorce and alimony. Dingle v. Carter, 350 Ga. App. 255, 829 S.E.2d 604, 2019 Ga. App. LEXIS 284 (2019). Fee award modifiable while suit pending. - Although the grant of attorney fees is a final judgment which may be enforced by attachment or by writ notwithstanding reconciliation of the parties, this does not necessarily mean that the fee award, like other elements of temporary alimony, may not be modified by the court at any time while the suit is pending and is within the jurisdiction of the court. Haim v. Haim, 251 Ga. 618, 308 S.E.2d 179, 1983 Ga. LEXIS 929 (1983). Words “on account” need not appear in temporary order to prevent the award of attorney fees from being final and complete. Richardson v. Richardson, 237 Ga. 830, 229 S.E.2d 641, 1976 Ga. LEXIS 1411 (1976). Oral pronouncement of fees must be reduced to writing. - Husband’s concern about the interest rate of 11.25 percent imposed on an award of attorneys fees was justified under circumstances in which the husband asserted that the date of the judgment was October 1, 2007, and the applicable prime rate was 7.75 percent, while the wife argued that the applicable prime rate was 8.25 percent, the rate on July 20, 2007, the day the trial court orally pronounced the court’s judgment; however, an oral pronouncement was not a judgment. It had to have been reduced to writing and entered as a judgment to have been effective. Mongerson v. Mongerson, 285 Ga. 554, 678 S.E.2d 891, 2009 Ga. LEXIS 314 (2009), overruled in part, Simmons v. Simmons, 288 Ga. 670,

706 S.E.2d 456, 2011 Ga. LEXIS 153 (2011). Reversal required when inaccurate income statement relied upon. - Final judgment and decree of divorce had to be partially reversed as to alimony and attorney’s fees because the judgment relied on an inaccurate statement of the husband’s income. Lutz v. Lutz, 302 Ga. 500, 807 S.E.2d 336, 2017 Ga. LEXIS 924 (2017). Findings in order awarding attorney fees not clear. - Award of attorney fees to a mother in a child custody and support proceeding was vacated because although in the modification order the trial court made references to factors that indicate that the award was being made under O.C.G.A. § 9-15-14(b) due to sanctionable conduct, the trial court also referred to the relative financial position of the parties, which would indicate the award was being made under O.C.G.A. § 19-6-2; thus, further proceedings on the issue of attorney fees was required. Wilson v. Guerrero, 353 Ga. App. 501, 838 S.E.2d 588, 2020 Ga. App. LEXIS 27 (2020). Attorney’s Fees Georgia law permits award of attorney fees in original action for temporary or permanent alimony in an amount sufficient to ensure proper legal representation. Hilsman v. Hilsman, 245 Ga. 555, 266 S.E.2d 173, 1980 Ga. LEXIS 853 (1980). Purpose of allowing attorney fees. - Allowance of attorney’s fees in applications for divorce or alimony is a necessary provision to enable the wife to properly protect her interests. Brady v. Brady, 228 Ga. 617, 187 S.E.2d 258, 1972 Ga. LEXIS 865 (1972). In the allowance of attorney’s fees, while the financial condition of the husband must have due weight with the court, still, except in cases where the husband is unable to pay a fee, or more than merely nominal compensation, the allowance for attorney’s fees should be sufficient to insure to the wife proper legal representation by a competent attorney. Brady v. Brady, 228 Ga. 617, 187 S.E.2d 258, 1972 Ga. LEXIS 865 (1972).

Purpose of allowing attorney fees to the wife is to enable her to contest issues between herself and her husband, and the amount of such fees is to be set in accord with this purpose. Richardson v. Richardson, 237 Ga. 830, 229 S.E.2d 641, 1976 Ga. LEXIS 1411 (1976). Purpose of allowing attorney fees is to ensure effective representation of both spouses so that all issues can be fully and fairly resolved. Johnson v. Johnson, 260 Ga. 443, 396 S.E.2d 234, 1990 Ga. LEXIS 332 (1990). Pursuant to Georgia law, when awarded, attorney fees under O.C.G.A. § 19-6-2 are awarded as an intrinsic part of temporary alimony. Vakharwala v. Vakharwala, 301 Ga. 251, 799 S.E.2d 797, 2017 Ga. LEXIS 331 (2017). Attorney fees are part of alimony. McClain v. McClain, 237 Ga. 80, 227 S.E.2d 5, 1976 Ga. LEXIS 1157 (1976). Award of attorney fees in divorce proceedings constitutes alimony and therefore is nondischargeable in bankruptcy. Westmoreland, Patterson & Moseley v. Painter, 21 B.R. 846, 1982 Bankr. LEXIS 3710 (Bankr. M.D. Ga. 1982). Attorney fees are considered temporary alimony. Ford v. Ford, 245 Ga. 569, 266 S.E.2d 183, 1980 Ga. LEXIS 858 (1980). Attorney fees improperly awarded in modification action when original proceedings arose out of divorce action. - Attorney fees improperly awarded in action to set aside paternity and modification of child support, as the proceedings did not arise out of the original divorce case, as required by O.C.G.A. § 19-6-2, but arose instead out of a paternity and modification action. Cothran v. Mehosky, 286 Ga. App. 640, 649 S.E.2d 838, 2007 Ga. App. LEXIS 831 (2007). Award not authorized in legitimation proceeding. - In a proceeding to legitimate a child, the trial court erred in awarding the custodial parent attorney’s fees under O.C.G.A. § 19-6-2(a) as the statute only permitted such an award in alimony and divorce cases. Appling v. Tatum, 295 Ga. App. 78, 670 S.E.2d 795, 2008 Ga. App. LEXIS 1146 (2008). Trial court has authority to exercise sound discretion in awarding or denying

attorney’s fees. Wilson v. Wilson, 243 Ga. 637, 256 S.E.2d 334, 1979 Ga. LEXIS 1016 (1979). Attorney fees in an action for nonpayment of alimony and child support are within the discretion of the trial court. Aycock v. Aycock, 251 Ga. 104, 303 S.E.2d 456, 1983 Ga. LEXIS 735 (1983). Attorney’s fees in child custody proceeding. - In a child custody proceeding, the trial court’s award of attorney fees to the father pursuant to O.C.G.A. § 19-6-2 was in error because the statute only applied to attorney’s fees in alimony and divorce cases. Dingle v. Carter, 350 Ga. App. 255, 829 S.E.2d 604 (2019). Although attorneys fees were improper under O.C.G.A. § 9-15-14 in the child custody case as the trial court did not state which subsection the award was made under and it failed to specify the conduct upon which the award was based, the trial court did not err in awarding attorney fees to the mother pursuant to O.C.G.A. § 19-6-2 because it properly considered the relative financial circumstances of both parties; it was not required to make any findings as to the reasonableness of fees; and, in the absence of a transcript of the hearing, the appellate court had to presume that the evidence supported the trial court’s findings. Roth v. Crafton, 363 Ga. App. 254, 870 S.E.2d 804, 2022 Ga. App. LEXIS 149 (2022). Discretion of judge as to amount of allowance will not be controlled, unless there is an abuse of discretion. Brady v. Brady, 228 Ga. 617, 187 S.E.2d 258, 1972 Ga. LEXIS 865 (1972). Appellate court may not control the discretion of a trial judge in awarding temporary alimony and attorney fees, unless it can be clearly shown by an appellant that the trial court committed grievous error or a gross abuse of discretion. Bowman v. Bowman, 242 Ga. 259, 248 S.E.2d 654, 1978 Ga. LEXIS 1167 (1978). In a divorce action wherein both parties presented evidence regarding each parties’ respective financial conditions, the trial court did not err by denying the wife’s claim for attorney fees pursuant to O.C.G.A. § 19-6-2; additionally, contrary to the wife’s argument, the husband’s alleged unwillingness to settle the divorce

Attorney’s Fees (Cont’d) proceedings was irrelevant to the inquiry whether attorney fees should be awarded. Jackson v. Jackson, 282 Ga. 459, 651 S.E.2d 92, 2007 Ga. LEXIS 594 (2007). Consideration of parties’ financial circumstances. - In a divorce action, in the absence of a transcript, an appellate court had to presume that, in accordance with O.C.G.A. § 19-6-2(a)(1), the trial court had considered the parties’ financial circumstances and did not abuse the court’s discretion in not ordering one spouse to pay the other spouse’s attorney’s fees. Dasher v. Dasher, 283 Ga. 436, 658 S.E.2d 571, 2008 Ga. LEXIS 245 (2008). In a divorce action, a trial court properly considered the parties’ financial circumstances under O.C.G.A. § 19-6-2(a)(1) in awarding a former wife $16,000 in attorney’s fees. Arkwright v. Arkwright, 284 Ga. 545, 668 S.E.2d 709, 2008 Ga. LEXIS 848 (2008). In a divorce proceeding, there was no merit to a husband’s contention that the trial court actually based the court’s award of attorney’s fees to a wife on O.C.G.A. § 9-15-14 merely because the court noted the impact of the husband’s litigious conduct on the reasonableness of the attorney fees the wife incurred because the trial court expressly awarded the wife attorney fees pursuant to O.C.G.A. § 19-6-2 and explicitly stated that the court was looking solely at the parties’ financial circumstances and disregarding the husband’s conduct in making the court’s award. Kautter v. Kautter, 286 Ga. 16, 685 S.E.2d 266, 2009 Ga. LEXIS 632 (2009). In a divorce proceeding, a trial court’s failure to award attorney’s fees to a former spouse under O.C.G.A. § 19-6-2 was not an abuse of discretion as the trial court properly considered the relative financial positions of the parties. Hunter v. Hunter, 289 Ga. 9, 709 S.E.2d 263, 2011 Ga. LEXIS 268 (2011). In an appeal pursuant to Ga. Sup. Ct. R. 34(4), a trial court did not abuse the court’s discretion by considering evidence that the husband and wife received financial assistance from a close relative (their respective mothers) since there was no

statutory limitation on the type of evidence of financial circumstances a trial court may consider when a trial court makes an attorney’s fee award under O.C.G.A. § 19-6-2 and because the award of fees under § 19-6-2 was within the trial court’s discretion. Jarvis v. Jarvis, 291 Ga. 818, 733 S.E.2d 747, 2012 Ga. LEXIS 851 (2012). Trial court did not abuse the court’s discretion by awarding the husband attorney fees under O.C.G.A. § 19-6-2, despite the award not being sustainable under O.C.G.A. § 9-15-14(b), because the record showed that the court carefully considered the parties’ relative financial positions, their obligations under the final decree, and the substantial costs incurred by both parties, and the husband was awarded substantially less than the total amount of fees claimed to have been incurred in the litigation. Hoard v. Beveridge, 298 Ga. 728, 783 S.E.2d 629, 2016 Ga. LEXIS 197 (2016). Fact that a party in a divorce proceeding was able to pay for a portion of their fee obligation during the course of a lengthy and contentious divorce proceeding did not deprive the trial court of the court’s statutory authority to award fees under O.C.G.A. § 19-6-2. Hoard v. Beveridge, 298 Ga. 728, 783 S.E.2d 629, 2016 Ga. LEXIS 197 (2016). Trial court did not abuse the court’s discretion by denying the wife’s request for attorney’s fees because the record reflected that the trial court considered the relative financial positions of the parties and some evidence supported the decision. Frost v. Frost, 299 Ga. 278, 787 S.E.2d 693, 2016 Ga. LEXIS 430 (2016). Award of attorney fees to ex-wife under O.C.G.A. § 19-6-2 was affirmed as the trial court’s order contained sufficient factual findings as to the parties’ finances and the ex-husband’s disagreement with that conclusion was not the basis for reversal. Reid v. Reid, 348 Ga. App. 550, 823 S.E.2d 860, 2019 Ga. App. LEXIS 46 (2019), cert. denied, No. S19C0832, 2019 Ga. LEXIS 689 (Ga. Oct. 7, 2019). Trial court was not precluded from awarding attorney fees to the ex-wife pursuant to O.C.G.A. § 19-6-2 because she remarried and her entitlement to and ability to seek

alimony discontinued as the trial court considered both parties financial circumstances at the hearing, made specific findings concerning the ex-husband’s assertions regarding his inability to pay his court-ordered obligations and overall financial circumstances, and his contempt. McCarthy v. Ashment, 353 Ga. App. 270, 835 S.E.2d 745, 2019 Ga. App. LEXIS 643 (2019), cert. denied, No. S20C0707, 2020 Ga. LEXIS 628 (Ga. Aug. 10, 2020). Since the court considered the financial circumstances of both parties presented at trial, including the financial affidavits, documents and exhibits, testimony, relative income of the parties, and each party’s separate property, the court did not abuse the court’s discretion in awarding attorney fees to the wife. Johnson v. Johnson, 358 Ga. App. 638, 856 S.E.2d 17, 2021 Ga. App. LEXIS 107 (2021). Property settlement agreement precluded award of attorney fees to spouse. - In a divorce action, the trial court erred by awarding $5,000 in attorney fees to the wife pursuant to O.C.G.A. § 196-2(a) because attorney fees under § 19-62(a) were precluded by the parties’ settlement agreement waiving alimony. Dovel v. Dovel, 352 Ga. App. 423, 834 S.E.2d 918, 2019 Ga. App. LEXIS 580 (2019). Attorney’s fees award proper. - Trial court did not err in awarding the ex-husband attorney fees as the court awarded fees incurred during the litigation and properly considered the parties’ relative financial positions in awarding

the fees. Rowles v. Rowles, 351 Ga. App. 246, 830 S.E.2d 589, 2019 Ga. App. LEXIS 422 (2019), cert. denied, No. S19C1535, 2020 Ga. LEXIS 156 (Ga. Feb. 28, 2020). Contempt Contempt for refusing to allow fiancé to attend therapy sessions. - Attorney fee award to the father was vacated and the case remanded to the trial court for reconsideration of the issue based on the appellate court concluding that the trial court erred in finding the mother in contempt for refusing to allow the father’s fiancé to attend therapy sessions. Sullivan v. Harper, 352 Ga. App. 427, 834 S.E.2d 921, 2019 Ga. App. LEXIS 582 (2019), cert. denied, No. S20C0478, 2020 Ga. LEXIS 433 (Ga. June 1, 2020). Award of fees was improper when no contempt. - In a post divorce proceeding, the award of $10,050.47 in attorney fees to the ex-wife was not adequately supported by statutory authority and factual findings because the order made no factual findings to support the award, nor did the order specify a statutory basis. Rose v. Clark, 360 Ga. App. 440, 859 S.E.2d 137, 2021 Ga. App. LEXIS 286 (2021). Attorney’s fees award improper. - Because the evidence did not support the trial court’s findings of contempt as to the mother, the award of attorney fees to the father was erroneous. Wall v. James, 358 Ga. App. 121, 853 S.E.2d 881, 2021 Ga. App. LEXIS 15 (2021).

RESEARCH REFERENCES Am. Jur. 2d. 24A Am. Jur. 2d, Divorce and Separation, §§ 618 et seq., 634, 640, 643, 649 et seq. C.J.S. 27B C.J.S., Divorce, § 542 et seq. ALR. Right to alimony, counsel fees, or suit money in case of invalid marriage, 4 A.L.R. 926; 110 A.L.R. 1283. Liability of husband in independent action for services rendered by attorney to wife in divorce suit, 25 A.L.R. 354; 42 A.L.R. 315. Validity and effect of agreement by

which attorney’s right to compensation or the amount thereof is contingent upon divorce or amount of alimony, 30 A.L.R. 188. Financial condition of parties as affecting allowance of suit money in divorce suit, 35 A.L.R. 1099. Right to attorney’s fees in suit or proceeding to enforce payment of past due alimony awarded by decree of divorce a vinculo or a mensa et thoro, 82 A.L.R. 726. Validity of statutory provision for attorney’s fees, 90 A.L.R. 530. Allowance against husband in suit for divorce, of amount for expense of taking

deposition of wife or paying cost of her transportation to place of trial, 111 A.L.R. 1098. Order in divorce suit for payment of counsel fees to attorney for wife, rather than to wife, 118 A.L.R. 1138. Right to allowance of counsel fees to wife in action for divorce or separation, as affected by misconduct or lack of good faith of her attorney, 150 A.L.R. 1181. Order granting or refusing motion for temporary alimony or suit money in divorce action as appealable, 167 A.L.R. 360. Wife’s misconduct or fault as affecting her right to temporary alimony or suit money, 2 A.L.R.2d 307. Right of former wife to counsel fees upon application after absolute divorce to increase or decree alimony, 15 A.L.R.2d 1252. Enforcement of claim for alimony or support, or for attorneys’ fees and costs incurred in connection therewith, against exemptions, 54 A.L.R.2d 1422. What constitutes ‘‘trial,’’ ‘‘final trial,’’ or ‘‘final hearing’’ under statute authorizing allowance of attorneys’ fees as costs on such proceeding, 100 A.L.R.2d 397. Necessity and sufficiency of notice and

hearing as to allowance of suit money or counsel fees in divorce or other marital action, 10 A.L.R.3d 280. Divorce: wife’s right to award of counsel fees in final judgment of trial or appellate court as affected by the fact that judgment was rendered against her, 32 A.L.R.3d 1227. Validity of statute allowing attorney’s fee to successful claimant but not to defendant, or vice-versa, 73 A.L.R.3d 515. Right of party who is an attorney and appears for himself to award of attorney’s fees against opposing party as element of costs, 78 A.L.R.3d 1119. Authority of divorce court to award prospective or anticipated attorneys’ fees to enable parties to maintain or defend divorce suit, 22 A.L.R.4th 407. Court’s authority to award temporary alimony or suit money in action for divorce, separate maintenance, or alimony where the existence of a valid marriage is contested, 34 A.L.R.4th 814. Excessiveness or adequacy of attorney’s fees in domestic relations cases, 17 A.L.R.5th 366. Alimony or child-support awards as subject to attorneys’ liens, 49 A.L.R.5th 595.