Attorney’s Fees Sans McKee

April 18, 2017 § Leave a comment

It’s fundamental that the chancellor is required to consider the McKee factors in making an award of attorney’s fees.

But it’s not always fatal if the judge doesn’t. The latest incarnation of that principle is in the case of Baswell v. Baswell, handed down by the COA January 31, 2017. In that case, Bobby Baswell had been ordered to pay his ex, Elizabeth, attorney’s fees of $1,500, in the final divorce judgment. On appeal the COA affirmed. Judge Carlton wrote for the court:

¶21. Bobby also asserts that the chancellor erred by awarding Elizabeth attorney’s fees up to the amount of $1,500 because Elizabeth never submitted evidence of her attorney’s fees. With regard to attorney’s fees, this Court recently stated:

An award of attorney’s fees is appropriate in a divorce case where the requesting party establishes an inability to pay. However, if a party is financially able to pay her attorney, an award of attorney’s fees is not appropriate. As the issue of whether to award attorney’s fees in a divorce case is a discretionary matter left to the chancellor, this Court is reluctant to disturb such a finding.

Williams v. Williams, 179 So. 3d 1242, 1254 (¶42) (Miss. Ct. App. 2015) (internal citations and quotation marks omitted). “Unless the chancellor is manifestly wrong, his decision regarding attorney[’s] fees will not be disturbed on appeal.” Gaiennie v. McMillin, 138 So. 3d 131, 137 (¶15) (Miss. 2014) (citation omitted).

¶22. “In order to determine the amount of attorney’s fees, a chancellor must look to the factors enumerated in McKee v. McKee, 418 So. 2d 764, 767 (Miss. 1982).” Branch v. Branch, 174 So. 3d 932, 945 (¶57) (Miss. Ct. App. 2015). In Branch, this Court recognized:

The court in McKee stated: We are also of the opinion the allowance of attorney’s fees should be only in such amount as will compensate for the services rendered. It must be fair and just to all concerned after it has been determined that the legal work being compensated was reasonably required and necessary. The specific factors include[:]

[T]he 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. Further, where the record shows an inability to pay and a disparity in the relative financial positions of the parties, there is no error in awarding attorney’s fees.

Branch, 174 So. 3d at 945-46 (¶58) (internal citations and quotation marks omitted).

¶23. In Branch, the chancellor found that the ex-wife lacked the ability to pay her attorney’s fees. Id. at 946 (¶59). This Court stated that, although the chancellor never “explicitly consider[ed] the individual McKee factors, the chancellor found the [ex-wife’s attorney’s] fees reasonable in accordance with McKee.” Id. Despite some omissions in the chancellor’s findings and the lack of a factor-by-factor analysis under McKee, we concluded that the chancellor accurately relied on the ex-wife’s financial position and correctly awarded attorney’s fees. Id. at (¶¶59, 61). We therefore found no manifest error in the chancellor’s decision to award reasonable attorney’s fees. Id. at (¶61).

¶24. In the present case, Elizabeth testified as to the severity of her overall financial situation. Like in Branch, the record here fails to reflect that the chancellor explicitly considered the McKee factors or conducted a factor-by-factor analysis under McKee. Instead, based on the evidence and testimony before him, the chancellor appears to have simply concluded that Elizabeth had proven her inability to pay her attorney’s fees. The chancellor stated in his order that Elizabeth had incurred attorney’s fees but that she had a “gross inability” to pay the fees. As a result, the chancellor ordered Bobby to pay Elizabeth’s reasonable attorney’s fees not to exceed $1,500 at an hourly rate of $175 an hour, plus actual, necessary, and reasonable expenses. The chancellor further stated that, “[I]f challenged in regard to the issue of attorney’s fees and expenses, [Elizabeth’s] attorney shall submit an itemized bill for same at the hourly rate he did charge, not to exceed that set by the [c]ourt . . . .” However, the record reflects no evidence that Bobby ever requested, or that Elizabeth’s attorney ever provided, an itemized bill for attorney’s fees.

¶25. Upon review, we find no abuse of discretion in the chancellor’s conclusion that Elizabeth lacked the ability to pay her attorney’s fees based on the evidence and testimony of her overall financial situation. We therefore find no manifest error in the chancellor’s decision to award Elizabeth reasonable attorney’s fees. Accordingly, this issue lacks merit.

If there’s one thing that is hard and fast … it’s that there is no hard and fast rule when it comes to award of attorney’s fees in a divorce and need to make a McKee record. You can never go wrong by addressing the McKee factors in your proof, and asking the court to make findings, either in the course of the trial or via R 59.

Here, there was a waiver issue that probably had some influence on the ultimate outcome, and the modest amount of the award likely influenced it as well.


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