Another Deference Decision with an Appellate Attorney’s Fees Point

February 5, 2014 § 2 Comments

The COA’s decision in Proctor v. Proctor, handed down January 28, 2014, is one of those cases where the appellate court deferred to the chancellor’s discretion, both on application of the Ferguson factors in equitable distribution, and on the Armstrong factors vis a vis alimony.

I talked about deference in a previous post. Proctor is an illustration of how stout the trial judge’s judgment can be when she invokes the applicable factors and her decision is supported by substantial evidence in the record. You might want to pay particular attention to Judge Barnes’ opinion at ¶ 19, where she points out that equitable division need only be equitable, not equal. That seems to be a concept that many lawyers and litigants do not grasp.

Another point that bears mention is at ¶ 36, where Judge Barnes addresses Ms. Proctor’s request for an award of attorney’s fees on appeal:

Donna makes a cursory request that this Court award her attorney’s fees on her appeal, in an amount equal to one-half of the amount that was awarded by the chancery court, according to Grant v. Grant, 765 So. 2d 1263, 1268 (¶19) (Miss. 2000), and Durr v. Durr, 912 So. 2d 1033, 1041 (¶30) (Miss. Ct. App. 2005). The distinguishing feature of these cases, however, is that the appellee was requesting attorney’s fees for defending the case on appeal, not the appellant prosecuting the appeal, unsuccessfully. Therefore, we deny Donna’s request. 

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§ 2 Responses to Another Deference Decision with an Appellate Attorney’s Fees Point

  • Bob Wolford says:

    Judge- talking about equitable distribution, do you see a time down the road when Mississippi morphs into a community property state, either through legislative mandate or otherwise? I don’t do a lot of chancery work, but it seems to me that a lot of chancery judges, notwithstanding the concept of equitable distribution, simply try to split the baby equally in dividing marital assets. Would Hemsley have to first be overruled before we even get to the question of community property, since Hemsley apparently is the starting point in determine what constitutes marital property subject to equitable distribution under Ferguson? In some cases, I think community property is the best way to go, because that would, in theory, encourage parties to plan ahead for a potential divorce. Or is that exactly what Mississippi is trying to avoid- a man and a woman contemplating a divorce at the same time they plan their wedding?

    • Larry says:

      I don’t see any reason to believe that we are morphing into community property. In fact, the COA cases lately are hammering home the point that equitable disrtibution does not mean equal division.

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