Inability to Pay Attorney’s Fees

April 20, 2020 § 1 Comment

In the divorce action between Morgan and Melanie Ewing, on remand, one of the issues presented to the chancellor was whether Melanie was entitled to an award of attorney’s fees, and, if so, how much.

Following a trial, the chancellor ordered Morgan to pay Melanie an attorney’s fee of $11,807.57. Morgan again appealed.

In Ewing v. Ewing, decided April 7, 2020, the COA affirmed. Chief Judge Barnes wrote for the unanimous court:

¶16. Morgan claims that the chancery court also erred in awarding Melanie attorney’s fees in the amount of $11,808.57. “Attorney’s fees may only be awarded to a party who has shown an inability to pay his or her own fees . . . [, and] chancellors are instructed to make specific findings regarding the recipient’s ability to pay.” Evans v. Evans, 75 So. 3d 1083, 1089 (¶22) (Miss. Ct. App. 2011). Addressing the factors in McKee v. McKee, 418 So. 2d
764, 767 (Miss. 1982), the chancery court found that Melanie had “incurred $11,808.57 in attorney’s fees by a skilled attorney as a result of litigation spanning three (3) years which required a large degree of responsibility in management and time and precluded the prior legal counsel from other employment.” The court expressly determined that Melanie had an inability to pay her attorney’s fees, noting that Melanie’s 2015 financial declaration from the trial indicated a net monthly income (before child support) of $851.70 and net monthly expenses of $2,830.00, leaving her with a monthly deficit of $1,978.30.

¶17. Morgan claims that the chancery court erred in failing to take into account his inability to pay attorney’s fees as evidenced by his Rule 8.05 financial declarations. This Court has held that “[w]here neither party is able to pay more than his or her own fees, an award of attorney’s fees is inappropriate.” Evans, 75 So. 3d at 1089 (¶24) (citing Sarver v. Sarver, 687 So. 2d 749, 755 (Miss. 1997), overruled on other grounds by Pearson v. Pearson, 761 So.
2d 157, 163 (¶17) (Miss. 2000)). We find that the record indicates the chancery court did consider Morgan’s ability to pay in its order, stating:

Currently, Morgan’s net monthly income after payment of child support is $2,629.52. Morgan[’s] net income before payment of child support as of the date of divorce was $2,579.35. Morgan is directed to pay periodic alimony in the amount of $500.00 per month and $250.00 per month towards Melanie’s attorney’s fee, then he would still net $1,629.52 each month based upon his current income, which is sufficient considering Melanie has [four] children living with her and he only has himself.

Reviewing Morgan’s 2018 financial declaration, we note a minor discrepancy between the court’s calculation and ours—we find that Morgan would actually have a net monthly income of $1,879.53 (after taxes, insurance, child support, alimony, and attorney’s fees are deducted from his monthly income). Nevertheless, this amount is greater than the chancery court’s determination, and Morgan’s net monthly income has increased since 2015. Therefore, we find no merit to his argument and affirm the chancery court’s award of attorney’s fees to Melanie.

This is a good arrow to have your quiver if you have to argue for an award of attorney’s fees for a low-income client.

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