A Contempt Potpourri
May 18, 2017 § 5 Comments
[NOTE: The MSSC reversed the COA’s decision on attorney’s fees on January 25, 2018, in Carter v. Davis.]
Every now and then a case wafts its way down from the exalted appellate stratosphere to us mortals down here at ground level and blesses us with a veritable potpourri of legal points that we can use in our mundane chancery existence.
A recent example is the case of Carter v. Davis, handed down by the COA on April 4, 2017.
Deveaux Carter had sued her ex-husband, Allen Davis, for contempt based on non-payment of child support. She contended that he owed $23,682 in child support arrearage, plus interest in the amount of $35,599, plus $88,664 for the children’s college expenses, plus $13,703 for unpaid medical expenses of the children, plus one-half the cost of the children’s vehicles, plus attorney’s fees and costs.
Following a trial, the chancellor determined that Allen owed $201,187, but the chancellor gave him credit for: (1) direct payments to the children during their time in college; (2) amounts paid to Deveaux and the children even after their emancipation; and (3) amounts paid by Allen’s mother. All three categories of payments combined totalled $197, 911, leaving a difference of $3,276, for which Deveaux was awarded a judgment. Allen was assessed a $7,500 attorney’s fee and costs.
Deveaux appealed, complaining about the credits. Allen cross-appealed, unhappy with the attorney’s fee award.
Judge Fair wrote the opinion for a unanimous court. Here are the points you can use:
- It’s discretionary with the chancellor whether to grant credit for direct payments to the children (¶13).
- It is proper to allow credit for direct payments to the children where to hold otherwise would unjustly enrich the other parent (¶13).
- The credit may only be allowed when the payments by the payor were for matters contemplated by the original support order, such as food, shelter, or clothing (¶13).
- Payments made by a grandparent may properly be credited to a parent if they are not restricted to some non-support purpose (¶11-12).
- In order to support an award of attorney’s fees against a party, that party must be found in “willful” contempt. It is not enough to find that the action was made necessary by the conduct of that party (¶15).
- The appellate court will not award appellate attorney’s fees when the trial court award of attorney’s fees is reversed (¶16).
The COA affirmed as to the chancellor’s credits, but reversed on the award of attorney’s fees, finding that the chancellor specifically held that Allen was not in willful contempt, but assessed the attorney’s fee solely because Deveaux was forced to bring the action. Since the attorney’s fee award at trial was reversed, the COA refused Deveaux’s request that she be awarded the customary one-half of the trial court’s award as an appellate attorney’s fee.
[…] on May 18, 2017, I posted here about the COA’s decision in Carter v. Davis, in which the COA decided, among several issues raised, that the chancellor erred in awarding […]
Got it. Thanks
On Thursday, May 18, 2017, The Better Chancery Practice Blog wrote:
> Larry posted: “Every now and then a case wafts its way down from the > exalted appellate stratosphere to us mortals down here at ground level and > blesses us with a veritable potpourri of legal points that we can use in > our mundane chancery existence. A recent example i” >
Additionally, it has also been held that where a court does not find one party in contempt, attorney fees are also properly awarded if the party requesting contempt “gains enforcement of a previous order”. Russell v. Russell, 724 So. 2d 1061, 1066 (24)(Ms. Ct. App. 1998). The power to award an appropriate attorney’s fee serves to make the plaintiff whole. Rogers v. Rogers, 662 So. 2d 1111, 1116 (Miss. 1995).
but what about this………………
“…..the purpose of an award of attorney fees is to compensate the prevailing party for losses sustained by reason of a defendant’s noncompliance with the judicial decree.” Jurney v. Jurney, 931 So. 2d 372 (Miss. Ct. App. 2006), citing Hinds County Bd. of Supervisors v. Common Cause of Miss., 551 So. 2d 107, 125 (Miss. 1989). “A party who is forced to seek the intervention of the chancellor to enforce a decree is entitled to recover the reasonable expenses associated with that action. “ Strange v. Strange, 43 So. 3d 1169 (Miss. Ct. App. 2010), citing Chasez v. Chasez, 935 So. 2d 1058, 1063 (Miss. Ct. App. 2005).
The cases on attorney’s fees are all over the ball park, even in the area of contempt. You can cite authority going in every direction.