Although in Division 1 we conclude that the manner in which incarceration was imposed with respect to those fees was improper, the award itself was authorized. First, as in McDonough v. O'Connor, 260 Ga. 849 ( 400 S.E.2d 310) (1991), issues other than child visitation were at issue here — also at issue was the parties' compliance with various aspects of the divorce decree. Moreover, although previously attorney fees were not recoverable in a contempt proceeding involving only child custody or visitation rights, see Smith v. Smith, 244 Ga. 230, 231(2) ( 259 S.E.2d 480) (1979); Keith v. Keith, 248 Ga. 819 ( 286 S.E.2d 434) (1982), OCGA § 19-6-2 (a)(1) has been amended to allow these fees.

Here, because the case involved an action for contempt of a divorce decree and modification of child support and was not purely an action for modification of custody, the award could have been based on OCGA § 19-6-2. See Roberts v. Tharp, 286 Ga. 579, 581 ( 690 SE2d 404) (2010); McDonogh v. O'Connor, 260 Ga. 849, 850 ( 400 SE2d 310) (1991). OCGA § 19-6-2 "authorizes a trial court in a divorce action to exercise its sound discretion and, after considering the financial circumstances of the parties, to award attorney fees as necessary to ensure the effective representation of both parties."

(1) Within the sound discretion of the court, except that the court shall consider the financial circumstances of both parties as a part of its determination of the amount of attorney's fees, if any, to be allowed against either party; . . . Therefore, the trial court had broad discretion to set the amount and terms of payment for any award of attorneys' fees. Id.; McDonogh v. O'Connor, 260 Ga. 849, 850 ( 400 SE2d 310) (1991). Contrary to Wife's argument, any alleged misconduct by Husband, including allegedly being disingenuous regarding his sources of income during discovery and at trial, is irrelevant to the award of attorney fees pursuant to OCGA § 19-6-2.

However, a review of the record shows that, after a thorough consideration of the parties' financial circumstances, the trial court denied Husband's request for attorney's fees. In doing so, the trial court did not abuse the discretion granted to it by OCGA § 19-6-2 (a) (1). McDonogh v. O'Connor, 260 Ga. 849 ( 400 SE2d 310) (1991); Wilson v. Wilson, 243 Ga. 637 ( 256 SE2d 334) (1979). Judgment affirmed. All the Justices concur.

These arguments appear to be directed to a consideration of the financial circumstances of the parties as required under OCGA § 19-6-2 (a) (1). See generally McDonogh v. O'Connor, 260 Ga. 849 ( 400 S.E.2d 310) (1991). An appellate court will affirm the denial of a motion for new trial "if at trial the evidence conflicted and some evidence supported the verdict. . . .

(Citations and punctuation omitted.) McDonogh v. O’Connor, 260 Ga. 849 , 849-850 (400 SE2d 310 ) (1991) (court had discretion to award attorney fees because action for modification of visitation and child support was joined with an action for contempt for failure to comply with the original divorce decree).

Glaza v. Morgan, 248 Ga. App. 623, 625 ( 548 SE2d 389) (2001).McDonogh v. O'Connor, 260 Ga. 849, 850 ( 400 SE2d 310) (1991). Here, the action was not for alimony or divorce, which had in fact been finalized between the parties approximately eight-and-one-half years earlier.

See Glaza v. Morgan, 248 Ga. App. 623, 624-625 ( 548 S.E.2d 389) (2001) (OCGA § 19-6-2 not a proper basis for attorney fee award in child custody modification action); In the Interest of S. K. R., 229 Ga. App. 652, 653 ( 494 S.E.2d 558) (1997) (award of attorney fees in case seeking change of custody could not be based on OCGA § 19-6-2, which only authorizes fee award "in (1) alimony cases, (2) divorce and alimony cases, and (3) contempt actions arising out of alimony or divorce and alimony cases"). Compare McDonogh v. O'Connor, 260 Ga. 849, 849-850 ( 400 S.E.2d 310 (1991) (OCGA § 19-6-2 proper basis for attorney fee award in action involving modification of visitation and contempt). The record shows that Mr. Cotting served interrogatories, requests for production, and a notice of deposition on Mrs. Cotting six days before the trial court dismissed the modification action, but it does not appear that she responded to these discovery requests.

We do not quarrel with plaintiff's argument that attorney fees can be authorized by OCGA § 19-6-2 under a petition to modify child support ancillary to a change in custody. See McDonough v. O'Connor, 260 Ga. 849 ( 400 S.E.2d 310). The fundamental obstacle to any such award in the case sub judice, however, is the want of notice to the defendant that such a claim would be pursued by plaintiff. Due process of law requires that a party in a divorce or modification action be entitled to notice of issues not raised in the complaint or by proper amendment, which are to be decided by the court, "notwithstanding the fact that no answer has been filed.

We find no abuse of discretion. See OCGA § 19-6-2 (a) (1); McDonogh v. O'Connor, 260 Ga. 849 ( 400 S.E.2d 310) (1991); compare Waller v. Waller, 237 Ga. 336, 337 (2) ( 227 S.E.2d 374) (1976). The divorce decree also authorized such an award.