In the Supreme Court of Georgia



                                      Decided: November 3, 2014


                   S14A1051. MIRONOV v. MIRONOV.


      HINES, Presiding Justice.

      This Court granted the application for discretionary appeal of Marci

Mironov (“Mother”) from the trial court’s order on attorney’s fees in this child

support modification action. See OCGA § 5-6-35 (a) (2). For the reasons that

follow, we reverse and remand for further proceedings.

      On September 27, 2006, Mother and Jeff Mironov (“Father”) were

divorced; the decree directed Father to pay $3,750 per month for child support

for their two children. In 2008, through a consent order, the parties agreed to

reduce Father’s monthly child support payments to $1,700. In April 2010,

Mother petitioned to modify the child support upward, contending that Father’s

income had more than doubled since the time of the consent order. The parties,

recognizing that Father’s income fluctuated, reached an agreement setting his

child support obligation at between $1,834.27 and $2,755.00 per month,
depending on his income, and memorialized this in a 2011 consent order.

However, the parties were unable to resolve the issue of attorney’s fees and

submitted the matter to the trial court. Each party claimed to have prevailed in

the underlying action, Mother because she secured an upward modification of

child support, and Father because the settlement was less than the $2,800 a

month that Mother had sought before filing the modification action1; Mother

requested that she be awarded $7,312.50 in attorney’s fees, and Father requested

that he be awarded $7,242.26.

       The court issued an order stating that “[s]ince the parties reached an

agreement, both with the assistance of counsel, this Court finds that both parties

prevailed in this action,” and concluded that “justice does not require the award

of fees.” The court’s order cited OCGA § 19-6-15 (k) (5), under which the court

may award attorney’s fees to “the prevailing party as the interests of justice may

require.”2 However, OCGA § 19-6-15 (k) (5) specifies that the trial court may

       1
         At one point, the order states that “$2,800.00 [was ] offered by [Father] prior to the filing
of the within complaint,” but a reading of the order as a whole makes clear that this is a scrivener’s
error and that, in fact, “[Mother] initially requested $2,800.00” a month in child support.
       2
           OCGA § 19-6-15 (k) (5) reads:

       In proceedings for the modification of a child support award pursuant to the
       provisions of this Code section, the court may award attorney's fees, costs, and

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award attorney’s fees to “the prevailing party”; there is no basis for a

determination thereunder that both parties prevailed. And, as in Keeler v.

Keeler, 263 Ga. 151 (430 SE2d 5) (1993), the modification action resulted in an

increase in Father’s child support obligation, even if not to the extent Mother

first requested, and thus it is she who is the prevailing party under OCGA § 19-

6-15 (k) (5), and it is only she who can be awarded attorney’s fees under that

statutory provision. Although Father contends that Haley v. Haley, 282 Ga. 204

(647 SE2d 10) (2007), is authority for the conclusion that the trial court’s order

is correct, the award of attorney’s fees in that case was made pursuant to a

contract between the parties; here it is under the authority of a statute, and is

governed by the terms of OCGA § 19-6-15 (k) (5).

           In Shapiro v. Lipman, 259 Ga. 85, 85-86 (377 SE2d 673) (1989), this

Court stated that the Code section there at issue3 gave “the court discretion

       expenses of litigation to the prevailing party as the interests of justice may require.
       Where 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.
       3
         Worded similarly to OCGA § 19-6-15 (k) (5), then-OCGA § 19-6-19 (d), as recited in
Shapiro, read:

       In proceedings for the modification of alimony for the support of a spouse or child
       pursuant to the provisions of this Code section, the court may award attorneys' fees,

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whether to award attorney fees to a prevailing party, [but] it does not authorize

the court to designate who is the prevailing party. That determination is made

by the trier of fact, in this case, the jury.” (Emphasis in original.) However, this

passage does not mean that when, as here, a case is settled and there is no jury

or other trier of fact, the trial court is without power to determine who is the

“prevailing party.” Rather, in the context of the opinion, this passage from

Shapiro is read to mean that, while the trial court has discretion under the statute

to decline to award attorney’s fees to the prevailing party, the court cannot

award attorney’s fees to the party who did not prevail, which is a determination

made by the fact finder, if one. As there is no trier of fact in this case, there is

no potential for a conflict such as arose in Shapiro.

      Although Father notes that under OCGA § 19-6-15 (k) (5), the trial court

had the discretion to decline to award any attorney’s fees to the prevailing party,

the trial court must exercise discretion “in conformity with the governing legal

principles.” Ford Motor Co. v. Conley, 294 Ga. 530, 538(2) (757 SE2d 20)

(2014). And, to the extent that the trial court’s order is an exercise of its



      costs, and expenses of litigation to the prevailing party as the interests of justice may
      require.

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discretion not to award attorney’s fees to the prevailing party, it is in error as it

is based on the erroneous conclusion that there could be, and were, two

prevailing parties under OCGA § 19-6-15 (k) (5). Accordingly, we reverse the

trial court’s judgment and remand the case to the trial court for a determination

of whether any attorney’s fees are due Mother as the prevailing party, and if so,

in what amount.

      Judgment reversed and case remanded with direction. All the Justices

concur.




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