VANISHING ATTORNEY’S FEES IN A PATERNITY ACTION
March 21, 2013 § 2 Comments
Tash Solangi filed suit against Kasey Croney to establish paternity and to obtain custody of the parties’ minor child, Caleb. Much of the trial was devoted to the parties’ custody conflict. At the conclusion of the hearing, the court awarded Kasey physical custody, gave the parties joint legal custody, changed the child’s name, and assessed child support. The chancellor also awarded Kasey a judgment in the sum of $14,000 in attorney’s fees. Tash appealed.
Much of the COA’s opinion in Solangi v. Croney, handed down March 12, 2013, addresses the chancellor’s findings on the Albright factors, which the COA did not disturb. It is the court’s handling of the attorney’s fee issue to which we turn out attention. Judge Fair’s opinion states:
¶28. The chancellor awarded Kacey approximately $14,000 in attorney’s fees and costs. The award was based on Mississippi Code Annotated section 93-9-45 (Rev. 2004), which provides that the defendant in successful paternity actions shall pay costs and attorney’s fees. There are two problems with this award. The first is that the trial from which the award largely derives was for custody rather than paternity, with paternity being admitted by the parties in their initial pleadings. The second problem is more fundamental: the statute states that costs and fees shall be assessed against the defendant. Given that Kacey was the defendant, section 93-9-45 does not authorize an award of costs and fees against Tash.
¶29. We recognize that the issue of attorney’s fees in domestic cases is largely entrusted to the sound discretion of the chancellor. McKee v. McKee, 418 So. 2d 764, 767 (Miss. 1982). Therefore we must also consider the possibility that the award can be justified under the McKee factors. However, that would require that Kacey be unable to pay her own fees. See Dunaway v. Dunaway, 749 So. 2d 1112, 1120 (¶20) (Miss. Ct. App. 1999). No such finding was made by the chancellor, nor would the record support it given that Kacey and Tash were of similar means, with Kacey earning approximately $72,000 per year.
¶30. We conclude that the award of fees and costs to Kacey is unsupported by the record and must be reversed and rendered.
Two points: (1) if you rely solely on the paternity (parentage) statute for authority to award an attorney’s fee, you’d better be representing the plaintiff; and (2) if the case is not for contempt, you must prove inability to pay. and although Judge Fair does not mention it here, he has said recently in another opinion, that in every case you should put on proof of the Mckee factors; otherwise there is nothing in the record to show how the chancellor arrived at a decision that the dollar amount awarded was reasonable.
And another point: I would have offered proof of how much time was devoted to the custody action and how much was devoted to the paternity action. That way, if the judge finds only part allowable, she has a record on which to base a partial award.
If you will click on that category search button up there on the right side of the page and again click on “Attorney’s Fees,” you will find a slew of posts on proving attorney’s fees and protecting the award on appeal.