NUCKOLS v. NUCKOLS (1997)

After this Court's grant of authority to appeal under OCGA § 5-6-35(a)(10), Juanita L. Nuckols appeals the trial court's award of $1,500 in attorney fees to Jon Nuckols in a change of custody case.   The record shows that the trial court dismissed Juanita Nuckols' petition to change custody and immediately awarded attorney fees upon an adjudication of the counterclaim for attorney fees contained in Jon Nuckols' answer.   Jon Nuckols has not filed a brief in this appeal.   Held:

Although Jon Nuckols' answer did not specify the basis for seeking attorney fees, as a defendant he was not entitled to fees under OCGA § 13-6-11 and his request did not satisfy the requirements of OCGA § 51-7-81.   Therefore, it must have been an attempt to seek relief under OCGA § 9-15-14.   A request by a prevailing party for attorney fees under OCGA § 9-15-14, however, must be brought by motion and no later than 45 days after the entry of final judgment.  OCGA § 9-15-14(e).   As the request was not in the proper form, the trial court should not have entertained it.   Further, the order violates OCGA § 9-15-14, because it fails to specify the conduct upon which the award of attorney fees was based.  Aycock v. Re/Max of Ga., 221 Ga.App. 587, 472 S.E.2d 137.

Accordingly, the award of attorney fees is vacated and the case remanded to the trial court for further proceedings on the issue of attorney fees.   Porter v. Felker, 261 Ga. 421, 405 S.E.2d 31.

Judgment vacated with direction.

BIRDSONG, Presiding Judge.

RUFFIN and ELDRIDGE, JJ., concur.