The Better Chancery Practice Blog

If you have practiced family law any amount of time, you will marvel at the ingenuity of parents and other family members in devising ways to warp, hurt, demoralize and destroy children.

Here are some of the most effective:

1. Use the children as pawns.  Trash the non-custodial parent’s mail to the child, or hide birthday or Christmas presents.  Use denial of visitation or contact as a tool to retaliate.  Then tell the child it’s all the other parent’s fault.
2. Use the children as spies.  Nobody makes as good a spy as an insider.  So what if it puts the children in the  middle, or makes them feel like traitors, or makes them choose sides.  As long as I get what I want, what does it matter, right?
3. Deny the other parent access to the children.  Very effective, especially when coupled with exagerrated or false claims of physical or sexual abuse.  Utilized long enough, this tactic can completely estrange the children from the non-custodial parent.  This ploy is so effective that children who grow into adults having experienced it often enjoy years of counselling.
4. Make the children feel guilty for loving the other parent.  This one is guaranteed to create maximum warpage.  “Who do you love the most, me or mommy?”  Some parents even punish the child for a “wrong” answer.
5. Use the children as messengers.  Mommy and daddy won’t talk to each other like adults, so the child is given notes, medical bills, school records, and so on.  This is an effective way to put the children right in the middle, and to let them in on adult concerns.  Gives them something more to worry about, and shifts the responsibility off of the parents.
6. Criticize the other parent to the children.  It really feels great to unload all of the hurt and anger you have toward your ex, and who is better than the children to understand exactly where you’re coming from?  It feels super to get that off your chest — right onto the children.
7. Model vindictive and spiteful behavior.  “Do as I say, not as I do” is the motto of parents who engage in this behavior.  Only problem is, that philosophy has never worked when raising children.  But who cares?  It’s worth it to take a swipe at the old ex, right?
8. Ignore the children’s stress and negative behavior brought on by the litigation.  Tell the children to quit that silly crying, or stop misbehaving or I’ll whip you, or “Quit acting like a baby.”  None of that sissy stuff like holding and reassuring them, asking them to share their concerns, or simply devoting some one-on-one attention.
9. Try to “win” the children over by relaxing discipline.  Parents who want to be the child’s best friend, not an authority figure.  Guaranteed to win the child over to that parent’s “side,” and to undermine the authority of the other “mean” parent.  The fly in this ointment is that after a while the child won’t mind you no matter what.  But that’s okay as long as you’re best buds, huh?
10. Use the children as targets to vent your own anger and frustration.  What’s wrong with lashing out at junior after a particularly frustrating conversation with your ex?  Everything.

As lawyers, you can exercise a lot of influence over your client’s behavior.  I can’t think of a more important subject about which you can influence your client than how to keep the children from being hurt in a divorce.

The usual standard in chancery court is that a party will not be entitled to an award of attorney’s fees unless the party proves an inability to pay. It’s a subject we’ve touched on before.

The exception to the rule is when the court finds a party in contempt. In that case, no inability to pay need be shown. And, when you represent the contemnor, you are wise to advise your client in advance to be prepared to get stung by those fees if the case is tried and he or she is on the losing side.

The latest manifestation of these principles is in the COA case of Rogers v. Rogers, decided July 25, 2012. In Rogers, the chancellor had found Mr. Rogers to have perpetrated a fraud on the court and assessed him with $1,605 in his ex-wife’s attorney’s fees. The COA reversed the finding of fraud (subject of another post), and Mr. Rogers complained that (a) there was no basis to assess fees absent the fraud finding, and (b) that there was insufficient evidence to support the award. Here’s the pertinent part of Judge Carlton’s decision:

¶29. Our jurisprudence generally provides that “[a]n award of attorney’s fees is appropriate in a divorce case where the requesting party establishes an inability to pay.” Gray v. Gray, 745 So. 2d 234, 239 (¶26) (Miss. 1999) (citations omitted). Additionally, a chancellor may also award attorney’s fees based on a party’s wrongful conduct, as stated in Chesney v. Chesney, 849 So. 2d 860, 863 (¶12) (Miss. 2002), as follows:

There have been a number of prior decisions upholding the award of attorney’s fees to one party where the other party has been found to be in contempt of court or where that party’s actions caused additional legal fees to be incurred. See A & L, Inc. v. Grantham, 747 So. 2d 832, 844-45 [(¶60)] (Miss. 1999) (holding that awarding attorney’s fees under certain circumstances, regardless of the party’s ability to pay, is not a reward, but reimbursement for the extra legal costs incurred as a result of the opposing party’s actions); Douglas v. Douglas, 766 So. 2d 68, [72 (¶14)] ((Miss. Ct. App. 2000) (where a party who is entitled to the benefits of a previous judicial decree is forced to initiate further proceedings to gain compliance with the previous order of the court, an award of attorney’s fees is appropriate).

See also McCarrell v. McCarrell, 19 So. 3d 168, 172-73 (¶¶18-19) (Miss. Ct. App. 2009). Further, the issue of whether to award attorneys’ fees in a divorce case constitutes a discretionary matter left to the chancellor, and this Court is “reluctant to disturb” such a finding. Young v. Young, 796 So. 2d 264, 268 (¶11) (Miss. Ct. App. 2001).

¶30. Chancellors are instructed to apply the McKee factors in granting or denying attorney’s fees. See McKee v. McKee, 418 So. 2d 764, 767 (Miss. 1982). However, the chancellor’s September 28, 2010 final judgment, where the chancellor awarded Julianne $1,605 in attorney’s fees, shows no mention of, nor specific findings on, the McKee factors. The chancellor stated only that “evidence reflected that [Julianne’s] attorney’s fees and court costs totaled $1,605.”

¶31. Our supreme court has held where there is substantial evidence in the record supporting the chancellor’s award of attorney’s fees, the omission of specific findings cannot be deemed reversible error. See Varner v. Varner, 666 So. 2d 493, 498 (Miss. 1995) (no McKee findings); Prescott v. Prescott, 736 So. 2d 409, 416 (¶31) (Miss. Ct. App. 1999) (no finding of inability of recipient to pay). We further note that a specific, on-the-record finding of inability to pay is not necessary where attorney’s fees are awarded due to the other party’s failure to comply with discovery requests. Russell v. Russell, 733 So. 2d 858, 863 (¶16) (Miss. Ct. App. 1999). A specific finding of inability to pay is also not required when attorneys’ fees are assessed against a party found to be in contempt. Mount v. Mount, 624 So. 2d 1001, 1005 (Miss. 1993).

¶32. In the case before us, the chancellor recognized Charles’s continued failure and refusal to comply with the divorce decree, including his failure to make alimony payments, failure to provide medical-insurance coverage, and failure to pay Julianne’s uncovered medical expenses. The chancellor also found Charles in contempt of court for his failure to provide adequate medical-insurance coverage for Julianne. For these reasons, we affirm the chancellor’s award of attorney’s fees to Julianne. This assignment of error is without merit.

The significance of Rogers with respect to attorney’s fees awards is two-fold: (1) it reiterates the rule that the inability-to-pay test is inapplicable when the assessment of fees is due to contempt or misconduct; and (2) it clarifies that the amount of proof and documentation necessary to support the award for contempt or misconduct is not as great as in an inability-to-pay case.

Notwithstanding the more relaxed standard for contempt and misconduct cases, I encourage you to put on proof of the McKee factors and 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.