This appeal concerns attorney fees assessed against Rita Williams under OCGA § 9-15-14 b based on her conduct as counsel for a party in a domestic relations case. In a motion for contempt based on the failure of Williams’s client, Mr. Cooper, to pay support, Ms. Cooper sought attorney fees incurred “as a result of Mr. Cooper’s willful failure and refusal to comply with” a support order, and prayed she “be awarded costs and expenses of litigation, including reasonable attorneys’ fees, that she incurred as a result of bringing this Motion for Contempt.” The trial court ruled in Ms. Cooper’s favor on the issue of contempt in September 2004 and reserved the question of attorney fees. Williams was given notice by the court on March 9, 2005, of a March 31 hearing on Ms. Cooper’s request for attorney fees. The transcript of that hearing shows Williams contested the claim Ms. Cooper made against Mr. Cooper for attorney fees relating to bringing the contempt action. After calculating the allowable attorney fees at $10,557 based on affidavits submitted by Ms. Cooper’s attorneys, the trial court considered the financial circumstances of the parties and awarded Ms. Cooper $500 in attorney fees against Mr. Cooper pursuant to OCGA § 19-6-2, then held without elaboration that half the fees were attributable to Williams’s conduct expanding the scope of the litigation, pursuing defenses lacking substantial justification, and delaying the contempt hearing, and awarded Ms. Cooper $5,278.53 against Williams under OCGA § 9-15-14 b. 1. Williams complains first that the award against her is invalid because there was no motion for attorney fees pursuant to OCGA § 9-15-14 b. Under that statute, an award of attorney fees may be based “upon the motion of any party or the court itself . . . .” In the present case, previous to the order which is the subject of this appeal, the record contains no motion by a party seeking attorney fees under OCGA § 9-15-14 b, no motion by a party seeking attorney fees from Williams, and no mention by the trial court that it was considering an award under OCGA § 9-15-14 b or an award on any basis against Williams. The notice of the hearing contained no reference either to OCGA § 9-15-14 b or to the possibility Williams could be assessed attorney fees for her conduct. In Glass v. Glover , 241 Ga. App. 838 528 SE2d 262 2000, where the Court of Appeals held that a claim for attorney fees under OCGA § 9-15-14 b could not be asserted in a counterclaim, the award in that case was reversed because there was no motion in the record and no indication that a sua sponte motion for such fees was before the trial court. That situation exists in the present case, as well. Similarly, in Rowan v. Reuss , 246 Ga. App. 139 1 539 SE2d 241 2000, the Court of Appeals reversed an award of attorney fees in part because the record did not demonstrate that the attorney against whom fees were assessed “received adequate notice of the court’s intention to impose attorney fees . . . .” There, as here, the trial court acted sua sponte in making the award and gave no notice that such an award was under consideration, i.e., made no motion of its own.
One against whom an award of attorney fees is sought “is entitled to an evidentiary hearing upon due notice permitting him an opportunity to ‘confront and challenge the value and the need for the legal services claimed.’ Cit.” Wehner v. Parris , 258 Ga. App. 772 1 574 SE2d 921 2002. Without notice that the trial court was considering an award of fees pursuant to OCGA § 9-15-14 b, the hearing conducted in this case on a claim for attorney fees that would be authorized under OCGA § 19-6-2 cannot be considered a realistic opportunity to contest the need for the legal services forming the basis of the award under § 9-15-14 b. This is so because the basis for an award of fees under the two statutes is different: The purpose of an award of attorney fees pursuant to § 19-6-2 is “to ensure effective representation of both spouses so that all issues can be fully and fairly resolved.” Cit. The damages authorized by § 9-15-14 “are intended not merely to punish or deter litigation abuses but also to recompense litigants who are forced to expend their resources in contending with abusive litigation.” Cit. Moon v. Moon , 277 Ga. 375 6 589 SE2d 76 2003. Thus, an award under OCGA § 19-6-2 depends on the financial circumstances of the parties, not their wrongdoing Gomes v. Gomes , 278 Ga. 568, 569 604 SE2d 486 2004, and for an award under OCGA § 9-15-14 b, the conduct of the party against whom an award is sought, and the conduct of that party’s counsel, are considered along with the impact of that conduct on the attorney fees incurred by the opposing party. Mills v. Parker , 267 Ga. App. 334 2 599 SE2d 301 2004.
