2020 Georgia Code
Title 19 - Domestic Relations
Chapter 6 - Alimony and Child Support
Article 1 - General Provisions
§ 19-6-2. Attorney's Fees; When and How Granted; Enforcement

Universal Citation: GA Code § 19-6-2 (2020)
  1. The grant of attorney's fees as a part of the expenses of litigation, made at any time during the pendency of the litigation, whether the action is for alimony, divorce and alimony, or contempt of court arising out of either an alimony case or a divorce and alimony case, including but not limited to contempt of court orders involving property division, child custody, and child visitation rights, shall be:
    1. Within the sound discretion of the court, except that the court shall consider the financial circumstances of both parties as a part of its determination of the amount of attorney's fees, if any, to be allowed against either party; and
    2. A final judgment as to the amount granted, whether the grant is in full or on account, which may be enforced by attachment for contempt of court or by writ of fieri facias, whether the parties subsequently reconcile or not.
  2. Nothing contained in this Code section shall be construed to mean that attorney's fees shall not be awarded at both the temporary hearing and the final hearing.
  3. An attorney may bring an action in his own name to enforce a grant of attorney's fees made to him pursuant to this Code section.

(Code 1933, § 30-202.1, enacted by Ga. L. 1967, p. 591, § 1; Ga. L. 1976, p. 1017, § 1; Ga. L. 1977, p. 312, § 1; Ga. L. 1979, p. 466, § 8; Ga. L. 1985, p. 877, § 1.)

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).

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), cert. denied, 421 U.S. 929, 95 S. Ct. 1656, 44 L. Ed. 2d 87 (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 ex-wife 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).

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 Bankr. 419 (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).

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).

O.C.G.A. § 19-6-2(a) is inapplicable to child custody modification actions. Wilson v. Perkins, 344 Ga. App. 869, 811 S.E.2d 518 (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).

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).

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).

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), overruled on other grounds, 288 Ga. 670, 706 S.E.2d 456 (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).

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).

Cited in Roberts v. Roberts, 226 Ga. 203, 173 S.E.2d 675 (1970); Margeson v. Givens, 231 Ga. 552, 203 S.E.2d 186 (1974); Mullinax v. Mullinax, 234 Ga. 553, 216 S.E.2d 802 (1975); Evans v. Evans, 242 Ga. 57, 247 S.E.2d 857 (1978); Swinson v. Swinson, 242 Ga. 305, 248 S.E.2d 675 (1978); Kight v. Kight, 242 Ga. 563, 250 S.E.2d 451 (1978); Griffin v. Griffin, 243 Ga. 149, 253 S.E.2d 80 (1979); Atkins v. Zachary, 243 Ga. 453, 254 S.E.2d 837 (1979); Ford v. Ford, 243 Ga. 763, 256 S.E.2d 446 (1979); Stitt v. Stitt, 243 Ga. 730, 256 S.E.2d 461 (1979); Kaufmann v. Kaufmann, 246 Ga. 266, 271 S.E.2d 175 (1980); Griffin v. Griffin, 248 Ga. 743, 285 S.E.2d 710 (1982); Keith v. Keith, 248 Ga. 819, 286 S.E.2d 434 (1982); Reno v. Reno, 249 Ga. 855, 295 S.E.2d 94 (1982); Easler v. Fuller, 169 Ga. App. 110, 311 S.E.2d 534 (1983); Norman v. Norman, 255 Ga. 32, 334 S.E.2d 687 (1985); Cotting v. Cotting, 261 Ga. App. 370, 582 S.E.2d 527 (2003); Cotting v. Cotting, 261 Ga. App. 370, 582 S.E.2d 527 (2003); Page v. Baylard, 281 Ga. 586, 642 S.E.2d 14 (2007); Stanley v. Stanley, 281 Ga. 672, 642 S.E.2d 94 (2007); Wood v. Wood, 283 Ga. 8, 655 S.E.2d 611 (2008); Mongerson v. Mongerson, 285 Ga. 554, 678 S.E.2d 891 (2009), overruled on other grounds, 288 Ga. 670, 706 S.E.2d 456 (2011); Harris v. Williams, 304 Ga. App. 390, 696 S.E.2d 131 (2010); Baars v. Freeman, 288 Ga. 835, 708 S.E.2d 273 (2011); Avren v. Garten, 289 Ga. 186, 710 S.E.2d 130 (2011); Blumenshine v. Hall, 329 Ga. App. 449, 765 S.E.2d 647 (2014); Bankston v. Warbington, 332 Ga. App. 29, 771 S.E.2d 726 (2015); Islamkhan v. Khan, 299 Ga. 548, 787 S.E.2d 731 (2016); Brooks v. Hayden, 355 Ga. App. 171, 843 S.E.2d 594 (2020); Spirnak v. Meadows, Ga. App. , 844 S.E.2d 482 (2020); Spirnak v. Meadows, Ga. App. , 844 S.E.2d 482 (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).

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).

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).

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).

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).

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).

Attorney fees are part of alimony. McClain v. McClain, 237 Ga. 80, 227 S.E.2d 5 (1976).

Award of attorney fees in divorce proceedings constitutes alimony and therefore is nondischargeable in bankruptcy. Westmoreland, Patterson & Moseley v. Painter, 21 Bankr. 846 (Bankr. M.D. Ga. 1982).

Attorney fees are considered temporary alimony. Ford v. Ford, 245 Ga. 569, 266 S.E.2d 183 (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).

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).

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).

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).

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).

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).

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).

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 proceedings was irrelevant to the inquiry whether attorney fees should be awarded. Jackson v. Jackson, 282 Ga. 459, 651 S.E.2d 92 (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).

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).

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).

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).

In an appeal pursuant to Ga. S. 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).

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).

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).

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).

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), cert. denied, No. S19C0832, 2019 Ga. LEXIS 689 (Ga. 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 regarding their 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).

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. § 19-6-2(a) because attorney fees under § 19-6-2(a) were precluded by the parties' settlement agreement waiving alimony. Dovel v. Dovel, 352 Ga. App. 423, 834 S.E.2d 918 (2019).

Attorney's fees award proper.

- There was no abuse of discretion in the trial court's award of $50,000 in attorney's fees to the wife in a divorce case; the trial court considered evidence of the financial circumstances of the parties and evidence that the wife incurred over $75,000 in litigation expenses in her efforts to obtain necessary financial documents and to effectively present the complicated financial issues raised in the case.

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), cert. denied, No. S19C1535, 2020 Ga. LEXIS 156 (Ga. 2020).

Contempt

Contempt for refusing to allowing fiance 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 fianc to attend therapy sessions. Sullivan v. Harper, 352 Ga. App. 427, 834 S.E.2d 921 (2019).

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