Gomes v. Gomes

The wife did not have to cite the statute authorizing a grant of attorneys' fees in divorce actions since her brief requesting such fees clearly showed her intent to make financial circumstances the basis for any fee award.

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Frances Gomes Wife sought attorney’s fees from Mario Gomes Husband pursuant to their divorce decree. The trial court denied Wife attorney’s fees because she failed to cite statutory or case law support for her request. Wife appeals, contending that the statutory basis for her request was clear. We agree, and therefore remand to the trial court to consider Wife’s request for attorney’s fees on the merits. Wife sued Husband for divorce. On July 24, 2003 Husband and Wife entered into a settlement agreement which reserved the issue of attorney’s fees until “presented by brief and oral argument to the Court . . . .” The same day, the trial court incorporated the settlement agreement into its “Final Judgment and Decree of Divorce.” Wife filed a “Motion for Attorney’s Fees” which included her legal bill and a request for oral hearing, and Wife’s attorney filed an Affidavit in support of Wife’s Motion. On January 20, 2004 the trial court denied Wife’s Motion for the sole reason that she “fails to cite a code section or case law that would authorize such an award.” We granted Wife’s application for discretionary appeal.1

We agree with Wife that, under the circumstances of this case, it was unnecessary to cite OCGA § 19-6-2, the specific statute that authorizes the grant of attorney’s fees in a divorce action.2 Under this statute, an award of attorney’s fees depends on the parties’ financial circumstances, not their wrongdoing.3 Wife’s Motion and supporting materials show her intent to make financial circumstances the basis for any attorney’s fees award.4 Thus, it is clear that Wife sought attorney’s fees pursuant to OCGA § 19-6-2 a 15

Gomes v. Gomes

The wife did not have to cite the statute authorizing a grant of attorneys' fees in divorce actions since her brief requesting such fees clearly showed her intent to make financial circumstances the basis for any fee award.

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