A Nice Attorney’s Fees Package

May 4, 2020 § Leave a comment

It’s nice and helpful when an appellate court decision gives us a concise, authoritative statement of the law.

That’s what the COA did in the case of Krohn v. Krohn, decided April 21, 2020, on the issue of attorney’s fees, particularly in contempt cases. Here is what Judge McDonald wrote for the majority:

¶20. In assessing an award of attorney’s fees, the chancery court first determines the type of action brought and then uses the appropriate method for a calculation of any attorney’s fees to award. Regarding contempt actions, “[w]hen a party is held in contempt for violating a valid judgment of the court, attorney’s fees should be awarded to the party that has been forced to seek the court’s enforcement of its own judgment.” Garner v. Garner, 283 So. 3d
120, 142 (¶98) (Miss. 2019). “Fees awarded on this basis, though, should not exceed the [attorney’s time and] expenses incurred as a result of the contemptuous conduct.” Heisinger v. Riley, 243 So. 3d 248, 259 (¶45) (Miss. Ct. App. 2018). The court “shall make the award [for contempt actions] based on the information already before it and the court’s own opinion based on experience and observation[.]” Taylor v. Timmons (In re C.T.), 228 So. 3d 311, 319 (¶21) (Miss. Ct. App. 2017) (quoting Miss. Code Ann. § 9-1-41 (Rev. 2014)). A successful party in a contempt action need not show that he or she was unable to pay their attorney. Wilkinson v. Wilkinson, 281 So. 3d 153, 167 (¶52) (Miss. Ct. App. 2019).

¶21. In other matters, e.g., motions for modifications, an award of attorney’s fees is based only on the successful party’s inability to pay; in such cases, “the Mississippi Supreme Court established several factors [in McKee, infra,] to determine the proper amount of attorney’s fees to award in domestic cases.” Chism v. Chism, 285 So. 3d 656, 667 (¶39) (Miss. Ct. App. 2019). “The McKee factors state that an award of attorney’s fees ‘should be fair, should
compensate only work actually performed, and should be based upon a finding that the work was reasonably required and necessary.’” Id. (quoting Deborah H. Bell, Bell on Mississippi Family Law § 12.02[l], at 359 (1st ed. 2005) (discussing McKee v. McKee, 418 So. 2d 764 (Miss. 1982))). The McKee factors include the following:

(1) relative financial ability of the parties; (2) the skill and standing of the attorney employed, (3) novelty and difficulty of issues in the case, (4) the
responsibility required in managing the case, (5) time and labor required, (6) the usual and customary charge in the community, and (7) whether the attorney was precluded from undertaking other employment by accepting the case. Baumbach v. Baumbach, 242 So. 3d 193, 208-09 (¶54) (Miss. Ct. App. 2018) (Fair, J., concurring in part and dissenting in part). This Court permits an award of attorney’s fees “in a divorce case where the requesting party establishes an inability to pay.” Stewart v. Stewart, 2 So. 3d 770, 776 (¶18) (Miss. Ct. App. 2009) (quoting Gray v. Gray, 745 So. 2d 234, 239 (¶26) (Miss. 1999)). “However, if a party is financially able to pay her attorney, an award of attorney’s fees is not appropriate.” Id. (citation omitted).

¶22. In Wilkinson, we acknowledged that although both parties were found in contempt, the court can still award one party attorney’s fees. Wilkinson, 281 So. 3d at 167 (¶55). There, Rod and Stephanie Wilkinson were both found in contempt for making derogatory remarks; therefore, the court declined to award attorney’s fees to either party on that issue. Id. at (¶53). However, Rod argued Stephanie could not receive any attorney’s fees because she was found in contempt on one issue (the unclean hands doctrine [Fn omitted]), but this court was not persuaded by Rod’s argument. Id. at (¶55). In addition to the contempt for derogatory remarks, the court found Rod in contempt regarding child support and visitation. Id. at 159 (¶5). We affirmed the award to Stephanie of $3,700.00 in attorney’s fees for Rod’s contempt of child support and visitation requirements. Id. at 169 (¶62).

¶23. In Wilkinson, we also found the chancery court properly analyzed the attorney’s fees for the contempt actions and other actions separately. For matters other than contempt, the court used the inability to pay standard to determine attorney’s fees, which incorporated McKee factors in determining Stephanie’s inability to pay. Id. at (¶58). Therefore, we affirmed the award of $4,933.00 in attorney’s fees not attributable to the contempt actions.
Id. at 169 (¶62).

¶24. In this case, like Wilkinson, we find no error in the chancery court’s award of attorney’s fees for Karen, even though she was found in contempt on a minor issue. Here, the chancery court found Melvin in willful, wanton, and contumacious contempt for his failure to pay child support and failure to pay alimony. The court also found Melvin in contempt for his failure to immediately obtain life insurance in the amount of $50,000.00. The court only found Karen in contempt for her failure to produce a copy of the child’s shot records upon Melvin’s request. Therefore, the court did not err in awarding Karen attorney’s fees. However, the court did err in the amount of attorney’s fees it awarded Karen.

¶25. The record shows attorney’s fees based on the cumulative amount of time spent on the contempt actions and modifications matters. Karen’s pleadings involved issues other than contempt, such as modification of custody and visitation. Prior to the final hearing, the parties went to court on these matters and resolved all but the contempt matters.

¶26. The chancery court erred in awarding Karen attorney’s fees for her representation in all these matters. The only factor that the chancery court addressed in ruling to award all attorney’s fees to Karen was the number of times the parties have been to the court. Without more, we find that the chancery court’s decision to award attorney’s fees should be reversed and remanded for proper determination of the amount of attorney’s fees attributable to the contempt actions and the amount of attorney’s fees owed, if any, for the other matters.

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