A QUESTION OF ATTORNEY’S FEES ON APPEAL

August 17, 2011 § 5 Comments

Ed McDonald filed for divorce from his wife, Cindy. Cindy counterclaimed for separate maintenance. The ultimate result was that the chancellor denied Ed a divorce and granted Cindy separate maintenance.

Ed did not pay as the court ordered, and he filed a motion to terminate the obligation. Cindy responded with a petition to hold Ed in contempt for non-payment of six months of separate maintenance. The chancellor rejected Ed’s plea to terminate the payments, found him in contempt, awarded Cindy a judgment for the arrearage, and ordered Ed to pay Cindy $1,000 in attorney’s fees based on the finding of contempt.  In making the attorney fee award, the trial judge stated:

“The finding of contempt in this matter as to the separate maintenance payments permits the Court to require the party in contempt to pay reasonable attorney’s fees to the innocent party. The award is based on the contempt and not the inability to pay. Therefore, the Court orders [Ed] to pay $1,000 to [Cindy] as attorney’s fees for his failure to pay the monthly separate maintenance as ordered by this Court.”

Ed appealed both from the denial of termination of separate maintenance, and from the adjudication of contempt. In the case of McDonald v. McDonald, decided August 16, 2011, the COA affirmed the chancellor on the refusal to terminate separate maintenance and the adjudication of contempt.

Cindy, then, was the prevailing party in the appeal, and she asked the COA to award her an attorney’s fee for having to defend the appeal. Indeed, there is a long line of cases holding that the appellate court will award the prevailing party an appeal attorney’s fee in an amount equal to one-half that awarded by the trial judge. See, e.g., Quin v. Quin, 215 So.2d 414, 415 (Miss. 1968); Smith v. Smith, 293 So.2d 466, 469 (Miss. 1974); and Poole vs. Poole, 701 So.2d 813, 819 (Miss. 1997).

Based on the chancellor’s ruling on the attorney’s fee, Cindy would reasonably expect the COA to award her an attorney’s fee in the sum of $500 for prevailing in the appeal.

In this case, though, the COA brushed aside Cindy’s request with this language (at ¶17): “The chancellor specifically held that the attorney’s fees awarded to Cindy are based on the fact that Ed was in contempt ‘and not on the inability to pay.’ Because precedent dictates that attorney’s fees are based on ‘necessity and not entitlement,’ and the chancellor did not find that attorney’s fees awarded to Cindy were based on an inability to pay her attorney, we decline to award Cindy any attorney’s fees on appeal.”

The opinion cites Monroe v. Monroe, 745 So.2d 249, 253 (Miss. 1999) at ¶ 17, as authority for its statement that “attorney’s fees are based on necessity rather than entitlement.” Monroe is the only case cited by the court. Monroe was a divorce case in which the MSSC reversed and rendered on a finding that Mrs. Monroe had been denied alimony improperly. It was not a contempt case. The court found that Mrs. Monroe was not entitled to attorney’s fees on appeal because she did not prove inability to pay. I’ve posted here before about the necessity to prove inability to pay to support an award of attorney’s fees in non-contempt actions.

The rule is different in contempt actions, however. A finding of inability to pay is not necessary to an award of attorney’s fees in a contempt action.  Bounds v. Bounds, 935 So.2d 407, 411 (Miss. App. 2006). It is not even necessary for the McKee factors to be proven in a contempt case. Mixon v. Mixon, 724 So.2d 956, 964 (Miss. App. 1998). Attorney’s fees are properly assessed against a party found to be in contempt, Mount v. Mount, 624 So.2d 1001, 1005 (Miss. 1993), to compensate the party wronged for having to retain counsel.

In Bounds, the COA spelled out the distinction:

Sam’s argument fails to differentiate awarding attorney’s fees in a divorce action as compared to a contempt action. In Mabus v. Mabus, 910 So.2d 486 (Miss.2005), the court addressed this issue. The trial court held a mother in contempt for failure to return the children to the father’s custody. Like Sam, the mother contended that the attorney’s fees the court awarded to the father for the contempt action were unreasonable because the court did not use the McKee factors. The general rule in divorce and child custody actions is that appropriate attorney’s fees should be awarded in an amount to secure a competent attorney. Id. at 490(13). However, in contempt actions, attorney’s fees are awarded “to make the plaintiff whole.” Id. (citing Rogers v. Rogers, 662 So.2d 1111, 1116 (Miss.1995)). “When a party is held in contempt for violating a valid judgment of the court, then attorney’s fees should be awarded to the party that has been forced to seek the court’s enforcement of its own judgment.” Elliott, 775 So.2d at 1290(25).

It looks to me like the chancellor in McDonald properly assessed attorney’s fees based on the sanction for contempt, as he was permitted to do under the great weight of authority. The chancellor was not required to find inability to pay. Why, then, was the customary appellate fee disallowed under a standard different than that which applied in the trial court? Ed appealed from the contempt finding and Cindy prevailed on the appeal. Should she not have been entitled to the customary one-half attorney fee award to the prevailing party?

I hope this decision does not mean that in contempt actions parties will have to put on proof of inability to pay purely in anticipation of an appeal, since that finding is not necessary for the trial judge to assess a fee on a finding of contempt. It’s irrational to me for one standard to apply at trial and another on appeal.

Cindy is only out $500 in this case, but what if the fees had been $12,500? Something else to think about as you go about making your trial court record in a contempt case.

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§ 5 Responses to A QUESTION OF ATTORNEY’S FEES ON APPEAL

  • […] I’ve talked here before about some confusion (in my opinion) on the part of the COA as to the criteria to award attorney’s fees in contempt cases as opposed to other cases. The question that gave rise to the confusion was whether proof of the McKee factors and/or inability to pay would be required to support an award of attorney’s fees in a contempt action. […]

  • Larry says:

    The problem is that these anomalous cases ripple through our jurisprudence and cause all manner of mischief as they go careening through later briefs and opinions.

    I wonder what ever happened to the per curiam affirmance. Is that not available to the COA? Our body of decisions seems to multiply geometrically every year. And every opinion increases the odds of some mutant strain of law being introduced. Many appeals in my opinion don’t merit an opinion.

    Anyway, my post does not intend any disrespect for Judge Roberts, a long-time colleague for whom I have high regard. The problem as I see it is systemic.

  • Anderson says:

    What? The COA overlooking basic precedents? Shocking.

    (I realize they have twice the workload, but this just looks like lazy research … and, perhaps, lazy briefing?)

    • Larry says:

      The problem is that these anomalous cases ripple through our jurisprudence and cause all manner of mischief as they go careening through later briefs and opinions.

      I wonder what ever happened to the per curiam affirmance. Is that not available to the COA? Our body of decisions seems to multiply geometrically every year. And every opinion increases the odds of some mutant strain of law being introduced. Many appeals in my opinion don’t merit an opinion.

      Anyway, my post does not intend any disrespect for Judge Roberts, a long-time colleague for whom I have high regard. The problem as I see it is systemic.

      • Anderson says:

        MRAP 35-B(d) gives ’em the same power as the MSSC to issue per curiam affirmances, but it seems all 10 judges would have to agree. There may be one judge who has a philosophical objection to that practice, or it may just not’ve occurred to ’em.

        Agreed the issue isn’t a particular judge, but simply the workload and the resources. (Judicial pay raises are much needed, but so are law-clerk pay raises.)

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