A Georgia statute permits awards of legal fees to a party in divorce or alimony cases, or in actions for contempt of divorce or alimony judgments. Yet, while the statutory language imposes no different requirements for a fee award in a contempt proceeding than in an original divorce/alimony case, interpretative decisions from appellate courts have imposed an additional, seemingly-inconsistent standard for fee awards in contempt proceedings. This article explores that additional standard and its apparent contradiction of the requisites and purpose for fee awards in original divorce and alimony actions.

The fee statute in question expressly allows “[t]he 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…”(1) The statute itself specifies only one requirement for awarding legal fees in any action to which it applies: namely, that the grant of attorney’s fees in such an action “shall be: … [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)

In an original divorce or alimony case, it has become well-established that a trial court cannot predicate an award of attorney’s fees on the misconduct of a party. A court instead must examine the parties’ respective financial circumstances to satisfy the statute’s primary purpose “to ensure effective representation of both spouses so that all issues can be fully and fairly resolved.”(3)

Some published decisions of the Georgia Court of Appeals and Supreme Court have applied the above standard and statutory purpose to fee awards in proceedings for contempt of prior divorce or alimony judgments. Those appellate decisions have required trial courts to properly consider only the relative financial circumstances of the parties when awarding legal fees in such contempt actions.(4)

At least two Georgia Supreme Court decisions, however, have seemingly contradicted the statute’s established standard and purpose, by requiring a finding of contempt in order to award legal fees in a proceeding alleging contempt of a divorce or alimony judgment. The Court, while acknowledging that an award of fees under the subject statute depends on the parties’ financial circumstances and not their wrongdoing, nonetheless construed the statute as authority to award attorney’s fees only “where a finding of contempt is authorized,” and required a determination whether the party against whom fees are awarded has violated the underlying judgment.(5)

Since the accepted purpose of the fee statute is to level the playing field so that both parties have effective legal representation, it seems illogical to preclude awards to relatively poorer divorcees simply because they fail to obtain findings of contempt of prior divorce or alimony judgments. If an award of fees is needed in a contempt action to ensure that both parties can effectively litigate their claims and defenses, then why should an ultimate determination of contempt matter when determining whether to award fees and how much to award? Unfortunately though, unless and until our state Supreme Court resolves its seemingly-inconsistent approaches to the grant of attorney’s fees in proceedings for contempt of divorce or alimony judgments, the parties and trial courts in those proceedings can continue to maintain that fees in such actions may be awarded only where a finding of contempt is authorized.

(1) O.C.G.A. § 19-6-2(a). (2) O.C.G.A. § 19-6-2(a)(1). (3) See Cason v. Cason, 281 Ga. 296, 299-300(3), 637 S.E.2d 716 (2006); Reid v. Reid, 348 Ga.App. 550, 553(1), 823 S.E.2d 860 (2019); and Rogers v. Baliles, 333 Ga.App. 725, 728, 776 S.E.2d 659 (2015). (4) See Cason, supra, 281 Ga. at 299-300(3); Chatel v. Carroll, No. A22A1336, * 10-11(3) (Ga. Ct. App., February 6, 2023); and Roth v. Crafton, 363 Ga.App. 254, 257-258(3), 870 S.E.2d 804 (2022); (5) McGahee v. Rogers, 280 Ga. 750, 754(2), 632 S.E.2d 657 (2006); and Brown v. Brown, 237 Ga. 122, 124(2), 227 S.E.2d 14 (1976), overruled on other grounds, Ensley v. Ensley, 239 Ga. 860, 864, 238 S.E.2d 920 (1977). (6) Cf., McGahee, supra; and Cason, supra.