CLARIFYING ATTORNEY’S FEES IN CONTEMPT ACTIONS
January 19, 2012 § Leave a comment
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.
In Williamson v. Williamson, decided January 10, 2012, the COA set the record straight. Judge Carlton’s opinion sets it out at ¶ 28:
Furthermore, we find no merit to Will’s contention that the chancellor erred in awarding attorney’s fees to Mary due to a lack of consideration of the McKee analysis. Will’s argument fails to differentiate the chancellor’s award of attorney’s fees in a divorce action as compared to a contempt action. In Mabus v. Mabus, 910 So. 2d 486, 490 (¶13) (Miss. 2005), the Mississippi Supreme Court explained that, generally, in divorce actions, appropriate attorney’s fees are awarded in an amount to secure a competent attorney. However, in contempt actions, attorney’s fees are awarded “to make the plaintiff whole.” Id.; see also Patterson, 20 So. 3d at 73 (¶26) (stating that an award of attorney’s fees is appropriate when there is a finding of contempt, and “[n]o showing as to the McKee factors is required”); Bounds v. Bounds, 935 So. 2d 407, 412 (¶18) (Miss. Ct. App. 2006). As stated, Mary introduced an itemization of attorney’s fees into evidence at trial. Will failed to provide sufficient evidence showing that the attorney’s fees testified to by Mary were unreasonable. Therefore, we find no abuse of discretion by the chancellor in finding Will in contempt and in awarding Mary the attorney’s fees she incurred in bringing her petition for contempt. See Mabus, 910 So. 2d at 489 (¶8) (“Where a party’s intentional misconduct causes the opposing party to expend time and money needlessly, then attorney[’s] fees and expenses should be awarded to the wronged party.”).
I think that language pretty well clarifies the law on the point. In contempt cases, contrary to other cases such as divorce, proof of the McKee factors is not required, nor is proof of inability of the wronged party to pay; however, you must put on proof to show the fees incurred and the reasonableness so that the trial judge has some objective standard to apply.
There is one often overlooked avenue for establishing the reasonableness of attorney’s fees. It’s set out in MCA 9-1-41, which reads as follows:
In any action in which a court is authorized to award reasonable attorneys’ fees, the court shall not require the party seeking such fees to to put on proof as to the reasonableness of the amount sought, but shall make the award based on the information already before it and the court’s own opinion based on experience and observation; provided, however, a party may, in its discretion, place before the court other evidence as to the reasonableness of the amount of the award, and the court may consider such evidence in making the award.
In my opinion, the statute is something you can use to your advantage in a contempt case, since McKee proof is not required. But be careful in trying to apply it in other kinds of cases. In Doe v. Doe, 644 So.2d 1199, 1209 (Miss. 1994), the supreme court said:
It is true that Miss.Code Ann. § 9-1-41 (1972) allows an award of attorney fees based “on the information already before it and the court’s own opinion.” However, such discretion still requires some guidelines. Guidelines help to insure that the chancellor’s award is based on factual information and is not arbitrary. This Court accordingly holds that chancellors should grant attorney fees under Miss.Code Ann. § 9-1-41 (1972) after considering the factors for attorney fees as stated in McKee v. McKee, 418 So.2d 764, 767 (Miss.1982).
Doe was not a contempt case. It was an action for termination of visitation rights based on allegations of sexual abuse. In non-contempt actions the rule is that you will need to put on the proof required by the case law. In divorce cases, for example, that means proof of the client’s inability to pay as well as McKee proof.