Karma is a B****, or What Goes Around Comes Around
April 7, 2015 § 1 Comment
John Bowen got into the habit around 2005 of not paying his child support. His ex, Patricia, had to retain an attorney to file repeated petitions for contempt. When he did begin complying — more or less — with the court’s child support orders, he did so by paying the child support into the registry of the court, which required Patricia to retain an attorney to get a judge to sign a court order authorizing the Chancery Clerk to disburse the funds to her.
In 2009, the chancellor found John in contempt and slapped him with $10,000 in attorney’s fees. John appealed, and the COA, in Bowen v. Bowen, 107 So.3d 166 (Miss. App. 2012), affirmed the finding of contempt, but remanded for the chancellor to make findings on the McKee factors.
On remand, the chancellor awarded Patricia $7,350 in attorney’s fees. John again appealed.
In Bowen v. Bowen, handed down March 24, 2015, the COA affirmed. Judge Roberts, hitting the nail on the head, wrote for the unanimous court:
¶5. John’s sole issue on appeal is that the chancery court erred in awarding Patricia $7,350 in attorney’s fees. On appeal, we employ the abuse-of-discretion standard when reviewing a trial court’s grant or denial of attorney’s fees. Proctor v. Proctor, 143 So. 3d 615, 623 (¶34) (Miss. Ct. App. 2014) (citing Miss. Power & Light Co. v. Cook, 832 So. 2d 474, 478 (¶7) (Miss. 2002)). In McKee v. McKee, 418 So. 2d 764, 767 (Miss. 1982), the Mississippi Supreme Court provided factors for consideration when determining the proper amount of attorney’s fees to award:
The fee depends on consideration of, in addition to the relative financial ability of the parties, the skill and standing of the attorney employed, the nature of the case and novelty and difficulty of the questions at issue, as well as the degree of responsibility involved in the management of the cause, the time and labor required, the usual and customary charge in the community, and the preclusion of other employment by the attorney due to the acceptance of the case.
¶6. Following this Court’s mandate, the chancery court held a hearing on the issue of attorney’s fees. Nancy Liddell, Patricia’s attorney, submitted into evidence an itemized bill for her work related to the case. She testified that in any instance where modification was mentioned in the bill, she halved the fee charged; thus, only the time spent working on the contempt action remained. Liddell additionally submitted an affidavit from a local attorney confirming that the range of $150-$200 per hour was the usual and customary rate for DeSoto County. John’s attorney did not dispute that these were the customary rates for DeSoto County. Patricia testified that she believed Liddell’s rate was reasonable, and that she “probably worried [Liddell] to death” with her constant communication. Patricia further elaborated that without Liddell’s aid, she would have been unable to get the owed child support from John. Liddell also testified that she expended many hours on this case, as it was more than just an average contempt action, and she had to turn away potential clients to handle this particular case.
¶7. In addressing the McKee factors in its oral ruling, the chancery court noted that the case was a novel case for a contempt action and had been ongoing since 2005. According to the chancery court, Patricia had to repeatedly file petitions for contempt because John would not obey court orders to pay child support. The chancery court explained that each time John failed to pay child support, Patricia “would have to talk to her attorney, have a petition filed, and after the petition [was] filed, after [John or his attorney were] served, then before [they] actually would have a trial, [John] would pay that child support. But he would not pay it directly to [Patricia].” When John did pay the child support, he would pay it to the chancery court, which required a signed order to release the check to Patricia, again requiring Liddell to prepare a motion for release of funds and an order to release the funds. The chancery court further stated that John, “by his repeated intentional misconduct[,] caused [Patricia] to incur attorney[’s] fees that she did not have money to pay[, o]ver and over and over again[,]” and Liddell successfully obtained relief for Patricia each time John failed to pay. The chancery court also found that Liddell was a skilled lawyer with over twenty years of experience, who missed other employment opportunities due to the constant work and preparation of this case. According to the chancery court, while this amount of attorney’s fees appeared high for an average contempt action, the $150-$200 per hour was a reasonable fee, and the bill would not have been as high if it were not for John’s repeated misconduct.
Patricia’s lawyer did a nice job of addressing the McKee factors with substantial proof. That gave the chancellor an adequate basis to support her ruling.
Remember that proof of McKee factors is not, strictly speaking, required to support an award of attorney’s fees in a contempt action; however, there must be some evidence of reasonableness. In other words, the chancellor has to have some basis to say that the award is reasonable. The best and most expeditious way to do that is via the McKee factors, as the COA ordered in this case.
Oh, and getting back to our starting point, did you notice how spiteful and intransigent John appeared to be in how he responded to the court’s orders to pay child support? Well, that’s where karma comes into play. Judge Roberts addressed the karma factor:
¶8. Based upon the evidence presented, we find that the chancery court did not abuse its discretion in awarding Patricia $7,350 in attorney’s fees. As the supreme court noted in Mabus v. Mabus, 910 So. 2d 486, 489 (¶8) (Miss. 2005), in contempt actions, “[w]here a party’s intentional misconduct causes the opposing party to expend time and money needlessly, then attorney[’s] fee and expenses should be awarded to the wronged party.” The chancery court found that the itemized expensed entered into evidence were reasonably incurred due to John’s repeated misconduct.
Karma is, indeed, a B****. Or, as we say in chancery court: Who seeks equity must do equity.