Modification and Ability to Pay Attorney’s Fees
June 25, 2018 § 1 Comment
Adam and Karen Lewis were divorced in 2002, ending a 13-year marriage. Their PSA, incorporated into the judgment, provided that Adam would pay Karen $15,000 a month in permanent, periodic alimony.
In 2015, Adam filed a petition to terminate alimony because Karen was in a de facto marriage. Following a trial, the chancellor dismissed his case under MRCP 41(b) for failure to meet his burden of proof. The chancellor also awarded Karen one-half of her attorney’s fees, or $13,935.50, for being required to defend herself in the case. The proof in the record was that Karen had substantial assets. Adam appealed.
In Lewis v. Lewis, handed down March 20, 2018, the COA affirmed the dismissal, but reversed and rendered on the award of attorney’s fees. Judge Wilson wrote for the majority in this 6-4 case:
¶31. As discussed above, the chancellor found that Karen “is of a financial standing in the court system that is not often seen and is capable of providing some of her own defense costs,” so she denied Karen’s request for attorney’s fees in part. However, the chancellor awarded Karen half of her fees ($13,935.50) because she found that Karen was “entitled to receive compensation for the requirement that she come in and defend herself.” Adam argues that this award was an abuse of discretion and should be reversed and rendered, and we are compelled to agree.
¶32. Adam’s complaint to terminate alimony was not frivolous or subject to sanctions under the Litigation Accountability Act or Rule 11, nor was he found to be in contempt of court. Therefore, the only possible basis for an award was Karen’s own inability to pay the fees. Karen is not entitled to an award of attorney’s fees just because Adam “is more capable of paying her attorney’s fees.” Rhodes v. Rhodes, 52 So. 3d 430, 449 (¶79) (Miss. Ct. App. 2011). Rather, Karen must “show that she is unable to pay [her fees]” as “a prerequisite to an award of attorney’s fees.” Id.; accord, e.g., Watson v. Watson, 724 So. 2d 350, 357 (¶30) (Miss. 1998) (holding that a chancellor may not award attorney’s fees to a spouse who “is
financially able to pay for her own attorney’s fees”).
¶33. Karen failed to show that she is unable to pay her attorney’s fees. Karen continues to receive alimony of $15,000 per month from Adam, and she has substantial assets. At the time of trial, Karen already had paid more than half of the fees that she requested, and she only testified vaguely that she thought her mother “might have helped” her make one payment because “that particular month” she could not pay the entire bill. It is clear that Karen is financially able to pay her own attorney’s fees. Therefore, we hold that the chancellor abused her discretion by ordering Adam to pay Karen’s attorney for her.
This is a pretty predictable outcome. The law is fairly clear as it applies in this case.
Only thing is, anyone who has done much domestic work will recognize the leverage that this gives to an ex-spouse who can vindictively take the other ex back to court repeatedly, carefully avoiding frivolous and vexatious actions, the result being that the ex is wiped out financially. I have seen it in custody cases, where there are repeated charges of material change and adverse effect. So long as there is an arguable basis in fact, no judge is going to deny a parent access to the courts to determine the best interest of children.
So I get the logic behind the rule. It just seems like it opens the door for some abuse.
An earlier post discussing the court’s ruling on the termination of alimony issue is at this link.
The Better Chancery Practice Blog 
Great observation about the abuse! That is exactly what the case was about, in my opinion. Also, the CA was too quick to conclude the case was not frivolous or subject to the LAA or Rule 11. Adam’s case was dismissed for failure to make a prima facie case. How much more frivolous or “without substantial justification” does the case need to be to warrant attorneys fees?