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.
Attorney’s Fees for Enforcement Sans Contempt
February 14, 2018 § Leave a comment
Back 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 attorney’s fees in a contempt case where the defendant was found not to be in contempt, but the trial judge awarded fees based on the fact that his conduct had made the filing of the action necessary.
The MSSC granted cert on the sole issue of attorney’s fees.
In the case of Carter v. Davis, handed down January 25, 2018, the MSSC reversed the COA on the point and reinstated the chancellor’s decision. Judge Maxwell wrote for the court:
¶5. The chancellor did not have to find Davis in willful contempt to award her attorney’s fees. Instead, we have long held that, when there has been a default in child support, the party seeking to enforce the decree is entitled to attorney’s fees, even when nonpayment was not due to willful contempt. Mizell v. Mizell, 708 So. 2d 55, 65 (Miss. 1998); Moore v. Moore, 372 So. 2d 270, 272 (Miss. 1979), overruled on other grounds by Dep’t of Human Servs., State of Miss. v. Fillingane, 761 So. 2d 869, 871 (Miss. 2000); Pearson v. Hatcher, 279 So. 2d 654, 656 (Miss. 1973). “Otherwise, the responsibility of support would be reduced by the amount the party seeking to enforce the decree would be required to pay an attorney to enforce the decree.” Moore, 372 So. 2d at 272 (citing Pearson, 279 So. 2d at 656).
¶6. In reversing and rendering the attorney’s fees award based on no willful contempt, the Court of Appeals cited McKnight v. Jenkins, 155 So. 3d 730, 732 (Miss. 2013). But in that case, we found not only was there no willful contempt by the ex-wife who refused to pay a medical bill, we also found there was no obligation under the support order to pay the bill, which was really a litigation expense and not her child’s medical expense. Id. And we reversed both the underlying award and the attorney’s fees award connected to it. Id.
¶7. Here, by contrast, the chancellor found Davis had significant financial obligations under the divorce judgment. Though the chancellor credited Davis for his and his mother’s direct payments, the chancellor still found Davis had failed to comply fully with the terms of the judgment. As the chancellor noted in his order, Davis acknowledged the arrearage. And this arrearage required Carter to initiate this action. Therefore, the chancellor rightly recognized that Carter—just like the ex-wives in Mizell, Moore, and Pearson—was entitled to attorney’s fees, even though the chancellor did not find Davis in willful contempt based on the credits. See Mizell, 708 So. 2d at 65; Moore, 372 So. 2d at 272; Pearson, 279 So. 2d
at 656.
¶8. After finding attorney’s fees were appropriate, the chancellor then determined $7,500 to be a reasonable amount—a decision that fell within his “sound discretion.” Mizell, 708 So. 2d at 65. Because the chancellor supported his decision with record evidence, we find no abuse in his awarding Carter $7,500 in attorney’s fees. See id. (“We are reluctant to disturb a chancellor’s discretionary determination whether or not to award attorney fees and of the amount of any award.”).
¶9. For these reasons, while we affirm the Court of Appeals’ judgment on the child support-credit issues, we reverse its decision to reverse and render the attorney’s fee award. We reinstate and affirm the judgment of the chancery court, which awarded Carter $3,276.66 in past-due child support and $7,500 in attorney’s fees.
The rule is that if you have to file an action to enforce an obligation imposed by court order, the filing of the action alone is sufficient to support award of attorney’s fees if the opposing party is found to be in default, even if there is no finding of contempt.
Attorney’s Fees as Punitive Damages
January 30, 2018 § Leave a comment
May a chancellor award attorney’s fees in lieu of punitive damages?
That question was before the COA in the case of Cronier, et al. v. ALR Partners, et al., handed down December 12, 2017.
In that case, the Rainwaters (ALR Partners) sued for adverse possession of 9.75, naming the Croniers as defendants. Allen Cronier claimed ownership of the property in dispute. As the matter degenerated from discussion to litigation, Cronier erected fences and gates cutting off the Rainwaterses’ access to the contested property. Cronier even conveyed the disputed property to his twelve-year-old granddaughter, retaining a life estate. Following a trial the chancellor found in favor of the Rainwater claim of adverse possession, ordered Cronier to remove all of the fencing and gates from the property, and ordered Cronier to pay the Rainwaterses’ attorney’s fees and court costs. Cronier appealed, raising several issues, among which was that the court erred in awarding attorney’s fees.
The COA reversed and remanded only for the court to state specifically whether the award of attorney’s fees in lieu of punitive damages. Judge Barnes wrote the 9-1 decision, Judge Tindell concurring and dissenting in part:
¶35. The chancellor ordered the Croniers to pay the Rainwaterses’ attorney fees and court costs because the “actions of Allen in erecting a fence around the property were in clear disregard of the Rainwaterses’ rights.” Additionally, the chancellor stated that Allen “knew at the time he built the fence and conveyed the property to his minor granddaughter that there was a serious claim” to the disputed parcel.
¶36. At trial, the Rainwaterses submitted a statement for attorney fees of $9,790.05, not including ten hours spent at trial. The chancellor added ten hours of fees to this figure, but deducted five hours, because she did not find in favor of the Rainwaterses’ adverse possession claim for the southern portion of the property. Therefore, a total of $10,790.05 in attorney fees was awarded to the Rainwaterses.
¶37. Allen argues that attorney fees are not allowed in the absence of contractual provisions, statutory authority, or an award of punitive damages.
¶38. Mississippi follows the American rule for awards of attorney fees. “[A]bsent some statutory authority or contractual provision, attorneys’ fees cannot be awarded unless punitive damages are also proper.” Fulton v. Miss. Farm Bureau Cas. Ins., 105 So. 3d 284, 287-88 (¶16) (Miss. 2012). Punitive damages are only proper when the plaintiff shows by clear and convincing evidence the defendant acted with actual malice. Miss. Code Ann. § 11-1-65 (Rev. 2014). “[T]he plaintiff must demonstrate a willful or malicious wrong, or the gross, reckless disregard for the rights of others.” Wise v. Valley Bank, 861 So. 2d 1029, 1034 (¶15) (Miss. 2003).
¶39. Here, while there is no contractual provision, statutory authority, or specific award of punitive damages, the chancellor awarded attorney fees for the same reason the Rainwaterses requested punitive damages in their amended complaint (for the “Defendants’ reckless disregard of the Plaintiffs’ rights in this case”). The Mississippi Supreme Court has held that attorney fees may be awarded instead of punitive damages. Pursue Energy Corp. v. Abernathy, 77 So. 3d 1094, 1102 (¶26) (Miss. 2011) (citing Aqua-Culture Tech. Ltd. v. Holly, 677 So. 2d 171, 184 (Miss. 1996)). Here, the chancellor did not specify in her order that she was awarding attorney fees in lieu of punitive damages. However, as the trier of fact she
could have found Allen acted with actual malice in removing boundary markers, and constructing gates and a fence. Accordingly, we reverse and remand for clarification of whether punitive damages were awarded in the form of attorney fees.
So, the award of attorney’s fees will stand if on remand the chancellor finds that Cronier’s conduct was with actual malice, justifying punitive damages, and she specifies that the fee award is in lieu of punitive damages.
The language quoted above is a nice summary of the law of attorney-fee awards in Mississippi. You can recite pretty readily, I am sure, some other avenues for fee awards in chancery, among them contempt, divorce, and as a sanction for discovery misconduct.
Reprise: The Reasonable Attorney’s Fee in a Contempt Case
December 19, 2017 § 1 Comment
REASONABLENESS AND ATTORNEY’S FEES IN CONTEMPT
September 17, 2012 § 1 Comment
In the COA case of Bowen v. Bowen, decided September 11, 2012, the court reversed and remanded the chancellor’s award of $10,000 fees in a case where the judge found the defendant in contempt. It was not the award of fees that the COA questioned, but rather the amount and reasonableness.
As we have mentioned here before, inability to pay is not a threshhold issue to an award of attorney’s fees based on contempt. In a contempt case, attorney’s fees may be awarded where a party’s intentional conduct causes the opposing party to spend time and money needlessly.
Judge Ishee’s opinion in Bowen points out that the determination whether a fee is reasonable depends on consideration of Mississippi Rule of Professional Conduct 1.5(a) and the McKee factors. He said:
” … even in contempt actions, “[t]he reasonableness of attorney’s fees [is] controlled by the applicable [Rule] 1.5 factors and the McKee factors.” …
¶25. When awarding Patricia attorney’s fees, the chancery court stated:
‘Although [John] has attempted to purge himself of his contempt by bringing the child support and medical insurance payments current, . . . the [c]ourt is going to assess [John] with attorney’s fees incurred by [Patricia]. If not for [John’s] repeated, willful refusal to abide by the orders of this court, [Patricia] would not have incurred the attorney’s fees, which the court finds to be reasonable and [to] meet all of the McKee factors.
There is no indication the chancery court adequately considered the McKee factors when assessing the reasonableness of the attorney’s fees. There was no consideration regarding the parties financial abilities, the novelty and difficulty of the question at issue, or the assessment of the charges.
¶26. The case at hand appears to be a routine contempt action. While large awards for attorney’s fees may still be awarded in contempt actions, they are not typical for a routine contempt action. … Here, an award of $10,000 appears excessive for a routine contempt action in which only $135 in child support remains unpaid. Furthermore, upon a review of the fees incurred, some charges relate to matters outside of the contempt action, such as modification of child support. Because the attorney’s fees were awarded based on John’s ‘repeated, willful refusal to abide by the orders of [the chancery court],’ fees not related to the contempt action should not have been included in the award amount awarded.”
I’ve made the point here before that …
Notwithstanding the more relaxed standard for contempt and misconduct cases, I encourage you to put on proof of the McKee factorsand documentation of your time in the case, so that it is in the record if you need it. A post on what you need to prove attorneys fees is here.
Most attorneys in my opinion do not devote much attention or care to making a record on attorney’s fees. That’s ironic, because you would think it would be a subject of sublime importance to the trial attorney.
Here’s a post about how to prove attorney’s fees in a divorce case. It’s more elaborate than the minimum required in a contempt, but it will give you an idea of what is involved in making a record that won’t spring a fatal leak.
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.
Attorney’s Fees Sans McKee
April 18, 2017 § Leave a comment
It’s fundamental that the chancellor is required to consider the McKee factors in making an award of attorney’s fees.
But it’s not always fatal if the judge doesn’t. The latest incarnation of that principle is in the case of Baswell v. Baswell, handed down by the COA January 31, 2017. In that case, Bobby Baswell had been ordered to pay his ex, Elizabeth, attorney’s fees of $1,500, in the final divorce judgment. On appeal the COA affirmed. Judge Carlton wrote for the court:
¶21. Bobby also asserts that the chancellor erred by awarding Elizabeth attorney’s fees up to the amount of $1,500 because Elizabeth never submitted evidence of her attorney’s fees. With regard to attorney’s fees, this Court recently stated:
An award of attorney’s fees is appropriate in a divorce case where the requesting party establishes an inability to pay. However, if a party is financially able to pay her attorney, an award of attorney’s fees is not appropriate. As the issue of whether to award attorney’s fees in a divorce case is a discretionary matter left to the chancellor, this Court is reluctant to disturb such a finding.
Williams v. Williams, 179 So. 3d 1242, 1254 (¶42) (Miss. Ct. App. 2015) (internal citations and quotation marks omitted). “Unless the chancellor is manifestly wrong, his decision regarding attorney[’s] fees will not be disturbed on appeal.” Gaiennie v. McMillin, 138 So. 3d 131, 137 (¶15) (Miss. 2014) (citation omitted).
¶22. “In order to determine the amount of attorney’s fees, a chancellor must look to the factors enumerated in McKee v. McKee, 418 So. 2d 764, 767 (Miss. 1982).” Branch v. Branch, 174 So. 3d 932, 945 (¶57) (Miss. Ct. App. 2015). In Branch, this Court recognized:
The court in McKee stated: We are also of the opinion the allowance of attorney’s fees should be only in such amount as will compensate for the services rendered. It must be fair and just to all concerned after it has been determined that the legal work being compensated was reasonably required and necessary. The specific factors include[:]
[T]he relative financial ability of the parties, the skill and standing of the attorney employed, the nature of the case and novelty and difficulty of the questions at issue, as well as the degree of responsibility involved in the management of the cause, the time and labor required, the usual and customary charge in the community, and the preclusion of other employment by the attorney due to the acceptance of the case. Further, where the record shows an inability to pay and a disparity in the relative financial positions of the parties, there is no error in awarding attorney’s fees.
Branch, 174 So. 3d at 945-46 (¶58) (internal citations and quotation marks omitted).
¶23. In Branch, the chancellor found that the ex-wife lacked the ability to pay her attorney’s fees. Id. at 946 (¶59). This Court stated that, although the chancellor never “explicitly consider[ed] the individual McKee factors, the chancellor found the [ex-wife’s attorney’s] fees reasonable in accordance with McKee.” Id. Despite some omissions in the chancellor’s findings and the lack of a factor-by-factor analysis under McKee, we concluded that the chancellor accurately relied on the ex-wife’s financial position and correctly awarded attorney’s fees. Id. at (¶¶59, 61). We therefore found no manifest error in the chancellor’s decision to award reasonable attorney’s fees. Id. at (¶61).
¶24. In the present case, Elizabeth testified as to the severity of her overall financial situation. Like in Branch, the record here fails to reflect that the chancellor explicitly considered the McKee factors or conducted a factor-by-factor analysis under McKee. Instead, based on the evidence and testimony before him, the chancellor appears to have simply concluded that Elizabeth had proven her inability to pay her attorney’s fees. The chancellor stated in his order that Elizabeth had incurred attorney’s fees but that she had a “gross inability” to pay the fees. As a result, the chancellor ordered Bobby to pay Elizabeth’s reasonable attorney’s fees not to exceed $1,500 at an hourly rate of $175 an hour, plus actual, necessary, and reasonable expenses. The chancellor further stated that, “[I]f challenged in regard to the issue of attorney’s fees and expenses, [Elizabeth’s] attorney shall submit an itemized bill for same at the hourly rate he did charge, not to exceed that set by the [c]ourt . . . .” However, the record reflects no evidence that Bobby ever requested, or that Elizabeth’s attorney ever provided, an itemized bill for attorney’s fees.
¶25. Upon review, we find no abuse of discretion in the chancellor’s conclusion that Elizabeth lacked the ability to pay her attorney’s fees based on the evidence and testimony of her overall financial situation. We therefore find no manifest error in the chancellor’s decision to award Elizabeth reasonable attorney’s fees. Accordingly, this issue lacks merit.
If there’s one thing that is hard and fast … it’s that there is no hard and fast rule when it comes to award of attorney’s fees in a divorce and need to make a McKee record. You can never go wrong by addressing the McKee factors in your proof, and asking the court to make findings, either in the course of the trial or via R 59.
Here, there was a waiver issue that probably had some influence on the ultimate outcome, and the modest amount of the award likely influenced it as well.
Attorney’s Fees in a Related Case
March 1, 2017 § 1 Comment
In the midst of their long-running property-line feud with the McDonalds, about which we have previously posted here and here, Kenneth and Carolyn Moore filed for bankruptcy, making it necessary for the McDonalds to file adversary proceedings in bankruptcy court. After the case returned to chancery from its bankruptcy detour, the case was heard on the merits and the chancellor ruled against the Moores, assessing them $13,336.55 in actual damages, $10,000 in punitive damages, expert expenses of $1,700, and attorney’s fees of more than $65,000. The attorney’s fee award included legal work by the McDonalds’ attorneys in the bankruptcy case.
The Moores appealed, contending that it was error for the chancellor to assess bankruptcy attorney’s fees against them in the chancery contempt proceeding. The COA affirmed in Moore v. McDonald, et al., handed down February 7, 2017. Judge Wilson wrote the opinion on the point:
¶4. On May 16, 2014, the McDonalds filed a motion for summary judgment supported by exhibits and affidavits. Eleven days later, the Moores filed for bankruptcy. As a result, all proceedings in the chancery court were stayed and the impending trial was cancelled. Counsel for the McDonalds entered an appearance in the bankruptcy case and filed an adversary complaint to preserve the McDonalds’ claim against the Moores. See 11 U.S.C. § 523(a)(6) (2012) (providing that a debt for “willful and malicious injury” to the person or property of another is not dischargeable in bankruptcy). The McDonalds’ counsel also attended the meeting of creditors and filed a motion for sanctions based on the Moores’ alleged misrepresentations in the bankruptcy case. In response to hearing notices in the McDonalds’ adversary proceeding, the Moores appeared before the bankruptcy court and asked that their bankruptcy petition be dismissed. The court granted their request, which permitted the chancery case to proceed.
¶5. The chancellor found “that the Moores intentionally stalled [the chancery] action by filing [a petition for] bankruptcy which was dismissed after considerable time and effort by [counsel for the McDonalds].” The chancellor therefore found that “attorney time and expenses expended . . . in the Moore bankruptcy case were properly incurred on behalf of the McDonalds and should be awarded as part of the fees and costs awarded in this case.” On appeal, the Moores do not challenge the chancellor’s factual basis for awarding attorneys’ fees incurred in connection with the bankruptcy case. The Moores’ only argument is that “[t]he Pearl River County Chancery Court was not the appropriate forum to request attorneys’ fees for work related to the bankruptcy.” They argue that approximately $3,975 in fees that the McDonalds incurred related to the bankruptcy proceeding could only be recovered in the bankruptcy court.
¶6. The Moores’ argument is without merit. The Moores do not dispute that the McDonalds were entitled to an award of attorneys’ fees, and they cite no authority for their argument that such fees are not recoverable simply because they were incurred in a related bankruptcy proceeding. Although not directly on point, our Supreme Court recently held that a state court can award fees incurred in federal court in connection with a motion to remand the case to state court. See O.D. v. Dillard, 177 So. 3d 175, 189 (¶44) (Miss. 2015). In addition, other courts have held that a state court may award attorneys’ fees incurred in connection with a related bankruptcy proceeding. See Chinese Yellow Pages Co. v. Chinese Overseas Mktg. Serv. Corp., 170 Cal. App. 4th 868, 882 (Cal. Ct. App. 2009); Gill Sav. Ass’n v. Chair King Inc., 797 S.W.2d 31, 32 (Tex. 1990). Accordingly, we hold that the chancellor did not err by awarding attorneys’ fees related to the bankruptcy case.
In the absence of other Mississippi authority on point, then, the law in Mississippi is as stated above until the MSSC rules otherwise. On the particular facts in this case, I can’t disagree. The judge ruled that the detour “intentionally stalled” the chancery proceeding, so its connection with and direct relation to the chancery case is pretty clear. Still, I would hope we can have some parameters on how closely connected and related that other litigation needs to be to justify awarding attorney’s fees in another case.
How Many Attorneys Does it Take to …
February 21, 2017 § 3 Comments
… Okay, I’ll spare us all the rest of the joke. But the question does arise from time to time as to how many attorneys can be compensated in an award of attorney’s fees. The oft-heard formula is ” … a fee to compensate one competent attorney …” or words to that effect.
That was one issue in the recent case of Moore v. McDonald, et al., decided by the COA on February 7, 2017. The appellants argued that the chancellor erred by granting attorney’s fees for more than one attorney. The COA rejected the argument in an opinion by Judge Wilson:
¶7. The Moores next assert that the chancellor “erred by assessing attorneys’ fees . . . that cover the costs of more than one attorney.” The Moores argue that Mississippi Supreme Court precedent “clearly sets forth that . . . only a sufficient fee to secure one competent attorney may be granted.” In fact, however, our Supreme Court has rejected this very argument. Coleman & Coleman Enters. Inc. v. Waller Funeral Home, 106 So. 3d 309, 318 (¶27) (Miss. 2012) (“We do not interpret [McKee v. McKee, 418 So. 2d 764 (Miss. 1982),] as having held that attorneys’ fees in Mississippi are limited to the fees of only one lawyer.”); see also Upchurch Plumbing Inc.v. Greenwood Utils. Comm’n, 964 So. 2d 1100, 1116 (¶40) (Miss. 2007) (affirming an award of attorneys’ fees for the work of two attorneys); Mabus v. Mabus, 910 So. 2d 486, 490 (¶13) (Miss. 2005) (same). The Moores do not identify any duplicative time entries or excessive charges. They make only a broad argument that fees for the work of more than one attorney are not recoverable. This argument is contrary to Supreme Court precedent and thus without merit.
You may well question how the above squares with the express language of McKee, wherein the Supreme Court stated, “In determining an appropriate amount of attorneys fees, a sum sufficient to secure one competent attorney is the criterion by which we are directed. Rees v. Rees, 188 Miss. 256, 194 So. 750 (1940).” Well, if you read the Mabus case, cited above, you will see that the MSSC said that the “one competent attorney” language is more about non-duplication than about the number of attorneys involved to produce the result.
You are going to see more of this Moore case in some future posts. Not only is the fact situation interesting, but so are the observations of the chancellor and some of the other holdings.
Attorney’s Fees in Contempt Actions
October 4, 2016 § Leave a comment
It’s pretty much a given that, if you are found to be in contempt of a court order, you will be assessed with the other side’s reasonable attorney’s fees.
The point was brought home again recently in the COA case of Dupree v. Pafford, decided September 6, 2016.
In that case, Stephanie Dupree had been found in contempt of court orders for discovery in a contempt/modification action, and for her denial of visitation. Unhappy with the trial court’s rulings, Stephanie appealed. Two of her contentions were (1) that there was no proof that the father of her child, Patrick, was unable to pay his attorney’s fees, and (2) that the court did not adequately address the reasonableness of the fees that were assessed. Judge Fair wrote for the majority:
¶8. Next, Stephanie contends that the chancellor erred in finding the fees to be reasonable. She makes two distinct arguments here, and the first is easily disposed of: Stephanie contends that the chancery court was required to find that Patrick was unable to pay his own attorney’s fees. This is simply not required when a finding of contempt has been made:
When 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. The award may be assessed against
the offending party without regard to the recipient’s inability to pay.
Caldwell v. Atwood, 179 So. 3d 1210, 1217 (¶26) (Miss. Ct. App. 2015) (citations and
internal quotation marks omitted).
¶9. Stephanie next contends that the chancellor failed to adequately determine the
reasonableness of the fees claimed by Patrick’s attorney. The record reflects that the
chancellor expressly found the fees to be reasonable. While Stephanie faults the chancellor for not going into detail, detailed findings are not required if the award of fees is, in fact, reasonable. West v. West, 88 So. 3d 735, 747 (¶¶57-58) (Miss. 2012). On that point, Stephanie offers nothing other than her assertion that many of the fees were “generated by totally needless litigation” resulting from Patrick’s motion for custody modification, which, according to Stephanie, delayed the hearing on the contempt issue and resulted in multiple contempt motions being filed.
¶10. “An award of attorney’s fees in domestic cases is largely a matter entrusted to the
sound discretion of the trial court. Unless the chancellor is manifestly wrong, his decision regarding attorney[’s] fees will not be disturbed on appeal .” Gaiennie v. McMillin, 138 So. 3d 131, 137 (¶15) (Miss. 2014) (internal citation and quotation marks omitted). Stephanie has failed to show an abuse of discretion regarding the reasonableness of the attorney’s fee awards.
That’s pretty straightforward. As a practical matter, however, it may just be a lot of sound and fury signifying nothing, because the COA sent the case back to the trial court because the chancellor had found Patrick not to be in contempt despite a history of non-payment of child support. The COA held that Patrick’s history of non-payment and late payments should have resulted in a contempt adjudication. That will likely cost him something in attorney’s fees, which will offset — in whole or in part — the award against Stephanie.
The Better Chancery Practice Blog 