The general rule in Georgia holds that parties to legal proceedings must pay their own attorney’s fees and litigation expenses, absent a contract or statute providing otherwise.(1) In various domestic actions, however, Georgia statutes explicitly authorize awards of legal fees and expenses. This article will summarize the principal domestic matters in which fees may be awarded, and the statutory bases and grounds for such awards.
In actions for alimony, divorce and alimony, or contempt of court arising out of such cases, a Georgia statute permits a “grant of attorney's fees as a part of the expenses of litigation … [w]ithin 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…”(2) That grant of attorney’s fees and expenses of litigation is construed as alimony paid to the recipient.(3) Its purpose “is to ensure effective representation of both spouses so that all issues can be fully and fairly resolved.”(4)
Another Georgia statute permits awards of attorney’s fees and litigation expenses in proceedings to modify child custody.(5) That statute grants a trial judge wide discretion to “order reasonable attorney's fees and expenses of litigation, experts, and the child's guardian ad litem and other costs of the child custody action and pretrial proceedings to be paid by the parties in proportions and at times determined by the judge.”(6) Unlike a divorce and alimony fee award, the grant of legal fees in a modification of custody action does not require a court’s consideration of the parties’ financial circumstances.(7)
As with modification of child custody, actions for modification of child support or alimony also feature explicit authority for fee awards. Trial courts may award attorney’s fees, costs, and expenses of litigation in proceedings for modification of child support or modification of alimony for the support of a spouse “to the prevailing party as the interests of justice may require.”(8) Additionally, “[w]here a custodial parent prevails in an upward modification of child support based upon the noncustodial parent's failure to be available and willing to exercise court ordered visitation, reasonable and necessary attorney's fees and expenses of litigation shall be awarded to the custodial parent.”(9) As with actions for modification of child custody, a court presumably does not have to consider the parties’ financial circumstances before awarding fees and expenses in actions for modification of alimony or child support. No published appellate decision has specifically addressed this issue yet, however.
In every domestic case, Georgia law permits awards of legal fees and expenses, for frivolous litigation, in amounts which are reasonable and necessary for defending or asserting the rights of a party.(10) “[R]easonable and necessary attorney's fees and expenses of litigation shall be awarded to any party against whom another party has asserted a claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position.”(11) In the alternative, a court “may assess reasonable and necessary attorney's fees and expenses of litigation in any civil action in any court of record if, upon the motion of any party or the court itself, it 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, including, but not limited to, abuses of discovery procedures available under Chapter 11 of this title, the ‘Georgia Civil Practice Act.’ As used in this Code section, ‘lacked substantial justification’ means substantially frivolous, substantially groundless, or substantially vexatious.”(12) In making awards under the frivolous litigation statute, a trial court must limit its award to those fees incurred because of sanctionable conduct within the statute’s purview.(13)
Whatever the asserted basis for granting attorney’s fees, a party requesting an award must prove the actual costs of his/her attorney and the reasonableness of those costs.(14)
(1) Cole v. Cole, 333 Ga.App. 753, 754(3), 777 S.E.2d 39 (2015).
(2) O.C.G.A. § 19-6-2(a)(1).
(3) See Scott v. Scott, 251 Ga. 619, 620 (3), 308 SE2d 177 (1983).
(4) Rogers v. Baliles, 333 Ga.App. 725, 728, 776 S.E.2d 659 (2015); Johnson v. Johnson, 260 Ga. 443, 396 S.E. 2d 234 (1990), citing Blanchet v. Blanchet, 251 Ga. 379, 380-381, 306 S.E.2d 907 (1983).
(5) O.C.G.A. § 19-9-3(g).
(6) O.C.G.A. § 19-9-3(g). See also Moore v. Hullander, A18A0592 (Ga. Ct. App., April 25, 2018).
(7) Viskup v. Viskup, 291 Ga. 103, 107(3), 727 S.E.2d 97 (2012).
(8) O.C.G.A. § 19-6-15(k)(5); O.C.G.A. § 19-6-19(d).
(9) O.C.G.A. § 19-6-15(k)(5).
(10) O.C.G.A. § 9-15-14(d) (emphasis added).
(11) O.C.G.A. § 9-15-14(a) (emphasis added).
(12) O.C.G.A. § 9-15-14(b).
(13) Harkleroad v. Stringer, 231 Ga. App. 464, 472(6), 499 S.E.2d 379 (1998).
(14) Harris v. Williams, 304 Ga.App. 390, 696 S.E.2d 131, 136(3) (2010).