FOURTH DIVISION

BARNES, P. J.,

RAY and MCMILLIAN, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules

October 2, 2015

In the Court of Appeals of Georgia

A15A1541, A16A0061. SMITH v. PEARCE.

BARNES, Presiding Judge.

Melissa Kay Smith appeals the superior court’s order granting John Blake

Pearce’s petition for legitimation and custody of the parties’ minor child, T. C. F.

Smith also appeals the court’s denial of her motions to dismiss, its award of OCGA

§ 9-15-14 attorney fees to Pearce, and its order finding her in contempt for failing to

pay those fees. For reasonsthat follow, we affirmthe legitimation and custody ruling,

but we vacate the attorney fee award and remand for further proceedings. We also

vacate the contempt award.

“When reviewing a superior court’s custody ruling, we view the evidence in

the light most favorable to the trial court’s decision.” Strickland v. Strickland, 330

Ga. App. 879 (769 SE2d 607) (2015). So viewed, the record shows the following

relevant facts.
Pearce and Smith dated in high school from 2005 to 2007, but broke up in

college. Smith began dating Cole Fahey in 2009 and got engaged to himin November

of that year. The engagement soon ended, however, and in December 2009 Smith

visited Pearce and was intimate with him. Shortly thereafter, she reconciled with

Fahey. In January 2010, Smith learned that she was pregnant, and she married Fahey

the following month. T. C. F. was born in September 2010. Fahey is listed on T. C.

F.’s birth certificate as the father, and he believed that he was, in fact, T. C. F.’s

biological father. 

In early 2011, Smith, Fahey, and T. C. F. moved to Florida because Fahey, who

servesin the military, wasstationed there. The relationship between Smith and Fahey

grew rocky, culminating in a fight in June 2011 in which Fahey broke down a door

and injured Smith’s leg. After the fight, Smith left Fahey because she was afraid for

him to be around T. C. F., and she and the baby went to live with her mother. Smith

reported the fight to Fahey’s commanding officer, who ordered Fahey to take anger

management classes. Fahey later filed for divorce in Florida. 

Meanwhile, before moving to Florida with Fahey, Smith had contacted Pearce

“trying to get back together.” Smith introduced Pearce to T. C. F. and said that she

wished Pearce – rather than Fahey – had fathered the baby. After moving to Florida,

2
Smith regularly called Pearce, and after leaving Fahey, she once again sought him

out. Although Smith was still married to Fahey, she once again became intimate with

Pearce, telling him that she and Fahey were separated and that he had abused her. 

In September 2011, at Smith’s urging, Pearce took a drug-store paternity test,

which showed with 99.99% certainty that he was T. C. F.’s biological father. Pearce

eagerly accepted T. C. F. as hisson, and both Smith and Pearce told their families and

friends the news. Pearce leased a townhouse in Sandy Springs, and Smith and T. C.

F. moved in with him in what Smith described as an effort to have “a nice, happy,

normal family.” Pearce assisted with childcare and paid the rent, utilities, and food

expenses, as well as half of T. C. F.’s preschool tuition. 

Smith and Fahey’s divorce became final in March 2012. During the course of

the proceedings, Fahey had taken a paternity test that ruled him out as T. C. F.’s

biological father. Accordingly, the Florida circuit court’s divorce judgment provided

as follows:

There was one child born during the marriage, [T. C. F.], born

September 10, 2010, age 1 year. Genetic testing has revealed that the

Husband is not the biological father of the minor child. The Wife states

that John Pierce [sic] is the biological father of the minor child. By

stipulation of the parties, the Husband, Cole D. Fahey, shall have no

parental rights or responsibilities regarding the minor child, [T. C. F.]. 

3
Smith claims that her relationship with Pearce began deteriorating in March

2012 and that he raped her in June 2012, but she did not report the alleged rape to the

police or anyone else. Afterward, Smith continued to live with Pearce, texted himthat

she loved him, and proceeded with a previously-booked cruise she had bought for

Pearce as a Father’s Day present. She and Pearce discussed him legitimating T. C. F.,

and although Smith claimed to support that process, she did not cooperate with

completing the necessary paperwork. 

Smith began seeing Fahey again surreptitiously. In October 2012, she told

Pearce she was spending the weekend with college friends, but instead she traveled

to Mississippi to attend a military ball with Fahey. Pearce cared for T. C. F. while

Smith was away. Smith alleges that when she returned from the trip, T. C. F. told her,

“Dada kiss my pee-pee.” Smith claims that she immediately confronted Pearce, who

failed to allay her concerns. Pearce denies that the incident occurred or that Smith

confronted him about it. Smith did not report T. C. F.’s alleged statement to the

police, Georgia’s Department of Family and Children Services (“DFCS”), or anyone

else until eight months later. After the alleged touching, she continued to live with

Pearce and to leave T. C. F. alone with him. 

4
In November 2012, Pearce hired a lawyer and filed this petition for legitimation

and custody. Later that month, he moved out of the townhouse because he had

learned that Smith was seeing Fahey again and he and Smith were not getting along

well. Pearce moved into a house nearby and set up one of the bedrooms for T. C. F.

Smith told Pearce that she would get an apartment in Atlanta, and the two agreed to

separate on good terms and share parenting time. At one point, Smith texted Pearce,

“[I]t’s important for you to be in [T. C. F.’s] life regularly.” But in early December

2012, after Smith learned that Pearce had hired a lawyer, she emailed him that he

could have no contact with her or T. C. F. until she, too, had retained counsel. Then,

unbeknownst to Pearce, Smith withdrew T. C. F. from preschool, quit her job, left

Atlanta, and moved back to her mother’s house with T. C. F. Four weekslater – again

without telling Pearce – Smith remarried Fahey. 

For the next 18 months, Pearce did not know where Smith and T. C. F. were.

He sent her multiple email and text messages asking about T. C. F., but she did not

respond. He called the police and DFCS, to no avail. The sheriff’s department was

unable to serve Smith with the summons and complaint , so Pearce hired private

investigators and special process servers, who also were unable to find Smith and T.

C. F. Smith entered a limited appearance in this case and moved to dismiss the

5
petition, but the superior court denied her motion, finding that she had purposely

evaded service, and authorized Pearce to serve her by publication. Smith appealed

that ruling to this Court, but we dismissed the appeal as premature. See Smith v.

Pearce, Case No. A14A0298, decided August 7, 2014. Smith later filed another

motion to dismiss in the superior court, this time arguing lack of subject matter

jurisdiction, but the court also denied that motion. 

In April 2013, Smith, Fahey, and T. C. F. moved to Florida for Fahey’s job.

That July, Smith reported T. C. F.’s alleged November 2012 molestation outcry to a

family therapist, who found nothing to substantiate the molestation allegations.

Nonetheless, as a mandatory reporter, the therapist contacted Florida’s Child

Protective Services, which investigated but found no indication that T. C. F. had been

molested. The Florida agency also contacted DFCS, which apparently conducted its

own investigation and likewise found no evidence of molestation.

In January 2014, Pearce married a woman with a young daughter, whomPearce

has since adopted. The family lives in a comfortable home, and Pearce has a stable

job. Both Pearce and his wife want T. C. F. to join their family. 

Beginning in February 2014, the case proceeded to a bench trial that spanned

four days over a seven-month period. During the trial, the superior court entered

6
interim orders permitting Pearce to have contact with T. C. F. for the first time in 18

months. Pearce began communicating regularly with the boy through Skype and

Facetime, and he traveled several timesto Virginia, where Smith and Fahey now live,

for visitation, which initially was supervised at Smith’s demand and Pearce’s

expense. During their first Facetime interaction, although T. C. F. immediately

recognized Pearce and seemed happy to speak with him, T. C. F. repeatedly told

Pearce, “You’re shit”; in a later visit, he called Pearce stupid. In addition, Pearce

testified that Smith and Fahey tried to undermine his relationship with T. C. F. by

cutting communications short, sending him to planned visits exhausted and hungry,

telling him that Pearce or the police would take him away from Smith and Fahey, and

forbidding him from hugging Mrs. Pearce. 

In April 2014, before his first in-person visits with T. C. F., Pearce submitted

to court-ordered psychological and psychosexual evaluations.1 After multiple days

of interviews and testing, paid for largely by Pearce, the psychosexual evaluator

concluded that there was no evidence that Pearce was sexually interested in children

1 Earlier, Smith had moved for a court order compelling Pearce to submit to a

psychosexual evaluation, but the court denied her motion without prejudice. Smith

later filed an amended motion for an evaluation, to which Pearce consented so that

he could see T. C. F. 

7
or had molested T. C. F.2

 The psychologist described Pearce as a “well-functioning

individual” with no clinical disorders and “many characteristics that are likely to

produce positive parenting including his intellect, his ability to earn an income and

provide stability, his obvious concern and caring for his son, and his desire to be a

parent.” Despite these reports, however, Smith testified that she still has concerns

about T. C. F. being alone with Pearce. She apparently has enlisted other criminal and

social services agencies to undertake further investigation, and she plans to take T.

C. F. to a hospital that specializes in testing for sexual abuse in young children. 

Following the bench trial, the superior court entered an order declaring T. C.

F. to be Pearce’s legitimate child, ordering his surname to be changed to Pearce, and

awarding Smith and Pearce joint legal custody of the boy, with Pearce having primary

physical custody. The court found that Pearce was a loving father who appeared

“sincerely hungry for the company of his child and for a chance to bond in a normal

fashion with him” and who also would “foster a loving relationship between [T. C.

F.] and the Mother.” The court stopped short of declaring that Smith had fabricated

the rape and molestation allegations, but found her “two year crusade” about the

2 The evaluator noted that Smith’s delay in reporting the alleged “pee pee”

incident was suspicious because “[a] fit mother has to report that kind of

information.” 

8
alleged molestation to be “disturbing.” The court further found that Smith had

essentially used Pearce when it was convenient for her, then pushed him away with

a “lack of appreciation for the seriousness of this matter and the amount of pain she

had caused [him].” Finally, the court worried that if Smith remained the primary

custodial parent, Pearce “will never be allowed to bond with and parent the child with

all he has to give and the child will suffer tremendously from such a loss.” Later, the

court entered a separate order awarding Pearce $68,500 in attorney fees, plus

expenses,

3

under OCGA § 9-15-14. The courtruled that Smith had engaged in various

actions for delay and harassment and had unnecessarily prolonged and expanded the

litigation. 

Smith filed a motion to set aside the legitimation and custody order, arguing

that although legitimizing T. C. F. as Pearce’s child was “the right thing to do,” the

evidence did not support the court’s custody ruling. She also filed a motion for new

trial, arguing that the court failed to consider the “best interest” factors under OCGA

§ 9-9-3 (a) (3) in issuing its custody award. The superior court denied both motions,

3These expensesincluded reimbursement for the visitation supervision,special

process servers and private investigators, and psychological and psychosexual

evaluations. 

9
and in Case No. A15A1541, Smith appeals the court’s legitimation, custody, and fee

order, as well as its prior orders denying her motions to dismiss. 

When Smith failed to pay the ordered attorney fees, Pearce filed a petition to

cite her for contempt. Following a hearing, the superior court granted the petition,

directing Smith to make payments atspecified intervals or face incarceration. In Case

No. A16A0061, Smith appeals the contempt order.4

Case No. A15A1541.

1. Smith argues that the superior court erred by denying her motion to dismiss

for lack of subject matter jurisdiction. She maintains that legitimating T. C. F. first

requiresterminating Fahey’s parental rights – something only a juvenile court can do.

We disagree.

While superior courts have subject matter jurisdiction over legitimation

petitions, see Allifi v. Raider, 323 Ga. App. 510, 511 (1) (746 SE2d 763) (2013),

juvenile courts have exclusive jurisdiction over termination of parental rights, except

in adoption cases. See OCGA § 15-11-10 (3) (D). In Brine v. Shipp, 291 Ga. 376 (729

SE2d 393) (2012), our Supreme Court noted that “the biological father’s petition to

4 Smith filed an application for discretionary appeal, which we granted. See

Case No. A150453, decided July 7, 2015.

10
legitimate a child who was born in wedlock is in essence a petition to terminate the

parental rights of the legal father.” Id. at 379 (3). Accordingly, the court held that

“[w]hen a biological father’s petition to legitimate a child born in wedlock can only

be granted by first terminating the legal father’s parental rights, . . . the superior court

does not have jurisdiction over the termination decision.” Id. at 380 (3). Smith argues

that Brine controls and requires reversal of the superior court’s legitimation and

custody ruling.

But as Pearce points out, T. C. F. had no legal father when thislegitimation and

custody action was filed. A “legal father” is a man who

[w]as married to the biological mother of [a] child at the time the child

was conceived or was born, unless such paternity was disproved by a

final order pursuant to Article 3 of Chapter 7 of this title;5. . . and who

has not surrendered or had terminated his rights to his child.

(Emphasis supplied.) OCGA § 19-7-21.1 (a) (2) (B); see also Baker v. Lankford, 306

Ga. App. 327, 329 (1) (702 SE2d 666) (2010). In the judgment finalizing Smith and

Fahey’s divorce, which was entered eight months before Pearce filed thislawsuit, the

Florida court ordered that, by stipulation of the parties, Fahey had “no parental rights

5 OCGA §§ 19-7-40 et seq. concern proceedings for the determination of

paternity.

11
or responsibilities” regarding T. C. F. In light of this stipulation to the surrender of

his parental rights, Fahey was no longer T. C. F.’s legal father, and he therefore had

no parental rights for the superior court to terminate in this action.

6 Accordingly,

Brine does not apply here, and the superior court did not exceed its subject matter

jurisdiction by legitimating T. C. F.7

2. Smith contends that the superior court should have granted her motion to

dismiss for insufficient service of process. First, she asserts that service by

publication was not authorized because there was no competent evidence thatshe had

evaded personalservice. The record, however, isreplete with evidence of evasion and

concealment: Smith left town abruptly without telling Pearce where she and T. C. F.

were going and ignored his repeated emails and text messages asking where she and

the boy were, and neither the sheriff’s department nor any of the multiple

6

Indeed, the superior court did not purport to terminate Fahey’s parentalrights.

Compare Brine, supra (reversing superior court order that not only granted biological

father’s legitimation petition, but also explicitly terminated legal father’s parental

rights);Chandler v. Rohner, 323 Ga. App. 713 (747 SE2d 870) (2013) (superior court

could not take “additionalstep of terminating [biological father’s] parental rights” in

order denying his legitimation petition).

7 And because a legitimation petition may include custody claims, OCGA § 19-

7-22 (f.1), the superior court also had subject matter jurisdiction to award custody of

T. C. F. to Pearce.

12
investigators that Pearce hired were able to locate them. In light of this evidence, the

superior court was authorized to allow service by publication. See Hutcheson v.

Elizabeth Brennan Antiques & Interiors, 317 Ga. App. 123, 126-127 (1) (730 SE2d

514) (2012) (trial court did not err in ordering service by publication based on

evidence that defendant was evading personal service).

Smith also contends that, assuming service by publication was permissible,

Pearce failed to effect it properly. “Service must be properly published as set forth in

OCGA § 9-11-4 (f) (1) (C).” Ragan v. Mallow, 319 Ga. App. 443, 446 (2) (744 SE2d

337) (2012). That statute provides in relevant part:

When the court orders service by publication, the clerk shall cause the

publication to be made in the paper in which sheriff’s advertisements are

printed, four times within the ensuing 60 days, publicationsto be at least

seven days apart. The party obtaining the order shall, at the time of

filing, deposit the cost of publication. The published notice shall contain

the name of the parties plaintiff and defendant, with a caption setting

forth the court, the character of the action, the date the action was filed,

the date of the order for service by publication, and a notice directed and

addressed to the party to be thus served, commanding him or her to file

with the clerk and serve upon the plaintiff’s attorney an answer within

60 days of the date of the order for service by publication and shall bear

teste in the name of the judge and shall be signed by the clerk of the

court.

13
OCGA § 9-11-4 (f) (1) (C). Smith maintains that Pearce failed to follow this statute

exactly because, according to his lawyer’s certificate of compliance, the lawyer –

rather than the clerk of the superior court – mailed the publication notice to the Fulton

County Daily Report. 

Smith relies upon Jahanbin v. Rafieishad, 292 Ga. 806 (741 SE2d 648) (2013),

in which the Supreme Court ruled that a plaintiff failed to comply with the statutory

requirements for serving a person in a foreign country because the plaintiff, instead

of the clerk of court, completed the registered mail receipt and accomplished the

mailing to the defendant in Iran. See OCGA § 9-11-4 (f) (3) (B) (iii) (II) (providing

for service upon a person in a foreign country by “[a]ny form of mail requiring a

signed receipt, to be addressed and dispatched by the clerk of the court to the party

to be served”). The court held that

the plain language of this provision requires the clerk of court to be the

person who addresses and dispatches the mail containing the summons,

thus ensuring that an officer of the court disinterested in the proceedings

is able to verify both the contents of the mailing and the address to

which it is sent.

14
Jahanbin, 292 Ga. at 807 (1). Smith argues that Jahanbin prohibits an attorney from

doing the clerk’s job of mailing out a publication notice. We disagree with this

analysis.

Unlike the statutory provision for service upon a person in a foreign country,

the provision for service by publication provides only that the clerk must “cause the

publication to be made”; it neither specifiesthe manner in which the clerk must cause

the publication to be made nor requires the clerk to accomplish the task personally.

See OCGA § 9-11-4 (f) (1) (C). In any event, the rationale for Jahanbin’s holding –

the need for a disinterested party to verify a registered mailing to a foreign country

– is not present here, where publication in a readily-accessible domestic newspaper

may be easily substantiated. Smith’s challenges to the sufficiency of service are

without merit.

3. Smith maintains that the superior court erred by denying her motion to set

aside the judgment “[f]or all of the reasons provided” in the motion. In the motion,

Smith argued that the factual findings in the court’s legitimation and custody order

were “based on fiction” and “fail[ed] to portray the actual evidence in this case.” This

was a bitter, protracted custody battle in which the parties presented sharply divergent

accounts of the events. “We are mindful that the Solomonic task of making custody

15
decisions lies squarely upon the shoulders of the judge who can see and hear the

parties and their witnesses, observe their demeanor and attitudes, and assess their

credibility.” (Citation and punctuation omitted.) Bankston v. Warbington, 332 Ga.

App. 29, 30 (771 SE2d 726) (2015). We will not disturb the superior court’s exercise

of discretion if there is any evidence to support its decision. Arthur v. Arthur, 293 Ga.

63, 64 (1) (743 SE2d 420) (2013); King v. King, 284 Ga. 364, 365 (667 SE2d 30)

(2008). Our review of the record, summarized above, shows that the court’s ruling in

this case was supported by evidence in the record. Thus, the court did not err by

denying Smith’s motion to set aside.

4. Smith argues that the superior court erred by failing to consider all factors

relevant to custody decisions under OCGA § 19-9-3 (a) (3). Thatstatute providesthat

“[i]n determining the best interests of the child, the judge may consider any relevant

factor, including but not limited to” a list of 17 such factors. By the plain language

of the statute, the list issuggestive only, and the superior court need not mechanically

analyze every enumerated factor, regardless of its relevance. See Bankston, supra at

33 (1). The legitimation and custody order shows that the court considered a broad

range of factors, including Pearce’s love for T. C. F., financial and residential

stability, and commitment to hisfamily; the strong bond between Pearce and T. C. F.;

16
and Smith’srelational and residential instability, relentless and unproven allegations

of rape and molestation, and withholding of T. C. F. from Pearce. Accordingly, this

enumeration of error is without merit.

5. Finally, Smith contends that Pearce was not entitled to attorney fees under

OCGA § 9-15-14, and that even if he was, the amount awarded was not related to any

sanctionable conduct. Although we find no abuse of discretion in the superior court’s

determination that a fee award wasjustified, we agree that the award must be properly

apportioned. 

(a) Under OCGA § 9-15-14 (b), the trial court may award

reasonable and necessary attorney fees upon a finding that an action or

any part thereof lacked substantial justification, was interposed for delay

or harassment, or an attorney or party unnecessarily expanded the

proceeding by other improper conduct. 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. An award of fees under OCGA § 9-

15-14 (b) is discretionary and the standard of review is abuse of

discretion.

(Citations and punctuation omitted.) Abt v. Abt, 289 Ga. 166, 167 (709 SE2d 806)

(2011). 

17
The superior court found that Smith unnecessarily prolonged the proceedings,

expanded the litigation, harassed Pearce, and increased his litigation costs by (1)

insisting that Pearce submit to a paternity test even though he had already done so and

she had stipulated in her divorce action that he was the father; (2) playing “games”

to evade service and filing multiple unsuccessful motionsto dismiss based upon lack

of service; (3) hiding T. C. F. from Pearce for 18 months and then insisting upon

supervised visitation; (4) seeking a psychological evaluation of Pearce two weeks

before the original trial date; and (5) making dubious allegations that Pearce had

sexually molested T. C. F. and refusing to back down even after psychological and

psychosexual evaluations, as well as multiple official investigations, cleared him of

suspicion. Our review of the record, as summarized above, shows that there was

ample evidence to support these findings. Accordingly, the superior court did not

abuse its discretion by awarding fees to Pearce under OCGA § 9-15-14 (b). See Abt,

289 Ga. at 167; Taylor v. Taylor, 282 Ga. 113, 115 (3) (646 SE2d 238) (2007)

(evidence of husband’s conduct during litigation justified fee award for unnecessarily

expanding litigation and harassing wife); Wrightson v. Wrightson, 266 Ga. 493, 496-

497 (467 SE2d 578) (1996) (similar). 

18
(b) An award of attorney fees under OCGA § 9-15-14, however, must be

limited “to those feesincurred because of the sanctionable conduct.” Brewer v. Paulk,

296 Ga. App. 26, 31 (2) (673 SE2d 545) (2009). Pearce sought $86,050.17 in attorney

fees, and his motion attached itemized billing statements from his lawyers.

Ultimately, the superior court awarded him $68,500 in attorney fees, but it did not

indicate how it apportioned this award to fees that were generated in relation to

Smith’s sanctionable conduct. See Fedina v. Larichev, 322 Ga. App. 76, 81 (5) (744

SE2d 72) (2013). Moreover, counsel’s bills included time spent on Smith’s appeal to

this Court in Case No. A14A0298, but “[a]ttorney fees incurred in connection with

appellate proceedings are not recoverable under OCGA § 9-15-14.” Kautter v.

Kautter, 286 Ga. 16, 19 (4) (c) (685 SE2d 266) (2009).

The trial court’s award of $[68,500] may have been reasonable, but the

trial court’s order, on its face[,] fails to show the complex decision

making process necessarily involved in reaching a particular dollar

figure and fails to articulate why the amount awarded was $[68,500] as

opposed to any other amount. Accordingly, we must vacate the award

and remand for appropriate factfinding with respect to the amount of

attorney fees to be assessed.

19
(Citation and punctuation omitted.) Fedina, 322 Ga. App. at 81 (5).8

Case No. A16A0061.

6. Smith appeals the superior court’s order finding her in contempt for failing

to pay the ordered attorney fees and expenses. Because we vacate the attorney fee

award for the reasons discussed in Division 5 (b), we also vacate the related contempt

order.

Judgment in Case No. A15A1541 affirmed in part and vacated in part, and

case remanded with direction. Judgment in Case No. A16A0061 vacated. Ray and

McMillian, J.J., concur.

8 We reject Smith’s argument that the superior court improperly awarded fees

to Pearce’s attorney, rather than to Pearce. Although the order specified that the fees

were “payable by the Mother to the Father’s attorney,” the award plainly was made

“to the Father.” “It follows that there was no error.” In re Singleton, 323 Ga. App.

396, 407 (7) (744 SE2d 912) (2013).

20