When Spanking Becomes More

June 7, 2017 § Leave a comment

In the course of the divorce trial between Bridget and Scott Holman, Bridget was testifying about Scott’s treatment of one of their children:

“I mean it wasn’t just a spanking on the butt. We’re talking about up and down the back, red marks, and had I been smart enough, I would have taken a picture of that.”

The chancellor, construing her testimony to be an allegation of child abuse, stopped the trial and appointed a guardian ad litem (GAL). After an investigation, the GAL found that the allegations were without foundation. The chancellor ordered Bridget to pay Scott’s attorney’s fees related to the child-abuse allegation.

Bridget appealed, contending among other claims that the chancellor erred in deciding to appoint a GAL, and in his award of attorney’s fees. The COA affirmed as to the appointment of the GAL, but reversed and remanded for a recalculation of the fees awarded. The unanimous decision in Holman v. Holman, handed down April 4, 2017, was penned by Judge Griffis:

¶23. Bridget claims she did not make an abuse allegation “but merely talked about Scott’s bad parenting” and “an incident of excessive spanking.” Pursuant to Mississippi Code Annotated section 43-21-105(m) (Rev. 2016), “physical discipline, including spanking, performed on a child by a parent, guardian or custodian in a reasonable manner shall not be deemed abuse under this section.”

¶24. Bridget asks that we find the chancellor erred in construing Bridget’s allegation of excessive spanking and her testimony that Scott spanked the child up and down his back, leaving red marks, as an allegation of child abuse. We disagree. Based on Bridget’s testimony, it was not manifestly wrong or clearly erroneous for the chancellor to have concerns since, under Mississippi Code Annotated section 43-21-105(m) (Rev. 2015), spanking must be reasonable.

¶25. Moreover, neither Bridget nor her former trial counsel objected to the chancellor’s interpretation of Bridget’s testimony, or attempted to clarify Bridget’s statements. Bridget had the opportunity to advise the chancellor at that time what she now asserts to this Court on appeal—that she did not intend to allege child abuse, but was simply discussing Scott’s bad parenting.

On the issue of attorney’s fees, Judge Griffis wrote:

¶26. Bridget next argues “the chancellor had no legal authority to award attorney’s fees.” Bridget further argues that even if it was proper for the chancellor to award Scott attorney’s fees, the attorney’s fees should have been limited to those fees actually incurred in defending the abuse allegation.

¶27. “An award of attorney’s fees will not be disturbed unless the chancellor abused his discretion or committed manifest error.” Stuart v. Stuart, 956 So. 2d 295, 299 (¶20) (Miss. Ct. App. 2006). Attorney’s fees may be properly awarded “where one party’s actions have caused the opposing party to incur additional legal fees.” Id.

¶28. The chancellor ordered Scott’s counsel to present an accounting of attorney’s fees incurred in the defense of the abuse allegation. However, Scott’s counsel submitted an affidavit and an attached itemization, which included charges for all work performed since June 2015, when the allegation of abuse was made by Bridget.

¶29. The chancellor awarded Scott $15,135 in attorney’s fees, which represented all work performed by Scott’s counsel since the child-abuse allegation was made. The chancellor explained his decision as follows:

This matter was tried almost to its conclusion as [Scott’s counsel] correctly stated, in day one, and then a revelation by [Bridget] comes about alleging abuse by [Scott]. The [chancery court], pursuant to the appropriate statute, halted the proceedings and appointed a guardian ad litem. In doing so, that not only increased the attorney[’s] fees for both parties, but also, of course, incurred the fees of the guardian ad litem. We tried the matter then on yet another day, again to its conclusion . . . . I think in all fairness and in all equity, because of the additional attorney[’s] fees incurred because of the revelation from the stand and not anywhere prior . . . in any deposition, discovery, or otherwise, it’s only proper that the party who causes another party to incur those fees should be assessed.

¶30. As the chancellor noted, at no point prior to the June 2015 trial had Bridget alleged child abuse. Indeed, the abuse allegation was made for the first time after approximately two and one-half years of litigation. Such an allegation caused additional delay and costs. Thus, we do not find the chancellor abused his discretion or committed manifest error in awarding attorney’s fees.

¶31. However, we do find the chancellor erred in failing to determine what portion of the submitted fees was actually incurred by Scott in responding to the abuse allegation. “The fees ‘should be fair and should only compensate for services actually rendered after it has been determined that the legal work charged for was reasonably required and necessary.’” Martin v. Stevenson, 139 So. 3d 740, 752 (¶40) (Miss. Ct. App. 2014) (citing Dunn v. Dunn, 609 So. 2d 1277, 1286 (Miss. 1992)). Accordingly, we reverse and remand in order for the chancellor to determine the amount of attorney’s fees associated with Scott’s defense of the abuse allegation.

It seems sometimes that witnesses get carried away hearing their own voices on the witness stand, not really paying much attention to the import of what they are saying until they get hit in the face with it. It’s beyond question that the chancellor in this case was under a duty to stop the proceedings and appoint a GAL based on what Bridget said. Red marks up and down the back from a spanking are not reasonable.

As for the amount of attorney’s fees awarded, I am willing to bet that the chancellor had no proof in the record to support a finding as to how to allocate the attorney’s fees incurred in resisting the child-abuse claim.

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