ATTORNEY’S FEES REVISITED
January 15, 2013 § Leave a comment
I sometimes quip that our body of case law is reaching biblical proportions, meaning that one can find authority to support opposite sides of most issues, and sometimes three or more sides.
Take the matter of attorney’s fees. It used to be fairly clear that in all but contempt you had to prove inability of the party to pay and the claim had to be proven reasonable via the McKee factors. In contempt actions proof of inability to pay is not relevant because the award is punitive.
Last September I posted here about the COA’s Bowen case, which reiterated the contempt rule, and remanded for proof of reasonableness under McKee. That post includes links to other posts on the subject of attorney’s fees.
In Brown v. Weatherspoon, decided by the COA on November 6, 2012, Kenyader Weatherspoon had produced DNA results proving conclusively that he was not the father of a child born to Serhonda Brown. Weatherspoon filed an MRCP 60(b) action seeking to set aside a prior judgment, to which he had agreed, establishing child support. Brown contested the 60(b) petition, and she persisted in a collection effort for unpaid child support. She also testified that she knew the identity of the natural father, and that she had no intention of suing him for child support. Based on Brown’s position, the chancellor assessed Brown $9,210 in attorney’s fees incurred by Weatherspoon in the case. Brown appealed.
In her appeal, Brown argued that she had the right to defend against the 60(b) action, and further that Weatherspoon would have incurred the fees anyway in the prosecution of his petition. She also argued that Weatherspoon failed to prove either inability to pay or the McKee factors.
Judge Roberts, writing for the COA, said:
¶22. The award of attorney’s fees is generally left to the discretion of the chancellor. Arthur v. Arthur, 691 So. 2d 997, 1004 (Miss. 1997) (citations omitted). “We are reluctant to disturb a chancellor’s discretionary determination whether or not to award attorney[’s] fees and of the amount of any award.” Id. (citation and internal quotation omitted). The chancellor based her decision to award Weatherspoon attorney’s fees on Brown’s vigorous insistence that Weatherspoon pay child support when, based on the DNA test results, Brown knew Weatherspoon was not M.B.’s father. The chancellor also noted that Brown knew the identity and whereabouts of the man she believes to be M.B.’s biological father, but she chose not to pursue paternity testing or child support from him. In her order, the chancellor referenced the fact that when Brown was asked why she had not sought child support from M.B.’s biological father, Brown responded that “she just did not want to.”
¶23. Furthermore, in McKee, the supreme court held that an award of attorney’s fees based on an estimated 850 hours worked on the case was too speculative to support the award. McKee, 418 So. 2d at 766-67. But when a chancellor bases an award of attorney’s fees on an itemized bill, there is substantial evidence to support the chancellor’s award. Dobbins v. Coleman, 930 So. 2d 1246, 1252 (¶27) (Miss. 2006). Weatherspoon submitted itemized bills from his attorney. The chancellor based her award on those itemized bills. Consequently, we do not find that the chancellor abused her discretion.
This was not an award of attorney’s fees based on contempt, so it is unclear why inability to pay was not a factor. The award was, however, in the nature of a sanction, since the chancellor was clearly punishing Sheronda for pursuing the futile action and thereby, I suppose, inflating both sides’ legal bills.
As for reasonableness, it would appear that either McKee proof or itemized bills will accomplish the same purpose. In other words, there must be something substantial in the record to support the chancellor’s finding that the fee award is reasonable. As I have said here before, my suggestion is that you put on proof of both the McKee factors and documentation of your time in the case, so that both are in the record if you need them.