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.
The Price Tag for Dishonesty
April 15, 2020 § Leave a comment
An old saw among lawyers is that “It’s better to be hurt by the truth than by a lie.”
One could say that T.J. Anderson’s dishonesty cost him $14,000+ in his divorce case. In essence the COA said precisely that in its opinion affirming the chancellor’s order that he pay his ex, Carrie, that sum plus interest to replace his son Robert’s educational fund. Here’s how Judge Tindell’s March 31, 2020, opinion in Anderson v. Anderson addressed it:
¶29. On the issue regarding the depletion of Robert’s savings account, the chancery court found as follows:
During their marriage Carrie’s grandmother gave Carrie, T.J., and [Robert] $14,000 to put into a savings account for [Robert’s] college education. T.J.
placed this money in his name and in the name of the child. T.J. withdrew the money from this account. He claims that Carrie knew of the withdrawal. While the Court does not believe that Carrie knew that T.J. was withdrawing his son’s money, it would be of small consequence. Carrie knowing would not be justification for the withdrawal. T.J. withdrew and used his son’s money. T.J. will be responsible for replacing any funds he withdrew from his son’s account in the approximate amount of $14,000 together with any interest those withdrawals would have generated.
¶30. T.J. asserts that the chancery court committed manifest error when it ordered that T.J. be fully responsible for replacing the $14,000 removed from Robert’s savings account, in addition to any lost interest attributable to the missing funds. Citing McLaurin v. McLaurin, 853 So. 2d 1279, 1286 (¶24) (Miss. Ct. App. 2003), T.J. argues that the money taken from that account was used to pay marital debts, and thus Carrie “should be equally responsible for replacing the money from the account.”
¶31. We find no merit in T.J.’s assertions. As noted above, when Robert was two years old, Carrie’s grandmother gave Robert $14,000 as a college fund, and T.J. put this money into a savings account in T.J.’s and Robert’s names. The record reflects that T.J. withdrew sums of money on different occasions from this account until there was no money left in the account. At trial, T.J. testified that Carrie was “generally aware” that he had withdrawn the money. Carrie, however, testified that she did not know T.J. had taken this money until the parties separated and she found the passbook savings account showing that the money was missing. T.J. admitted at trial that he did not put the money in the couple’s joint account. He testified that he “paid bills with it,” but he could not specifically account for it.
¶32. We find relevant in this analysis that the record reflects a number of incidents reflecting T.J.’s lack of candor with the chancery court. “[T]he chancellor is vested with the sole authority and responsibility to assess witness credibility as no jury is present. The chancellor alone hears the testimony and sees the demeanor of the witnesses.” Culumber v. Culumber, 261 So. 3d 1142, 1150 (¶24) (Miss. Ct. App. 2018) (citations and internal quotation marks omitted). In this case, the chancellor stated on the record that T.J. was “among the most dishonest individuals that [he had] had on the stand” in the chancellor’s nearly thirty years as a judge. Particular incidents at trial included T.J. substantially misstating his employment history and earnings and T.J. denying that he posted messages on social media berating Carrie and calling her inappropriate names. As described in the chancery court’s opinion and final judgment,
In Exhibit 43 Carrie was berated and called vile names. T.J. swore that he knew absolutely nothing about this posting. Several months later, after Carrie’s attorney had arranged for a police computer expert to testify, T.J. confessed that he had in fact sent the posting and had lied to the Court about it.
¶33. In light of these circumstances and our limited standard of review, we find that the chancery court’s order that T.J. replace the funds withdrawn from Robert’s account, plus interest that would have been generated on those withdrawals, was based on substantial, credible evidence. We therefore find that T.J.’s assignment of error on this issue is without merit.
A point or two:
- If you really expect the chancellor believe that your client spent funds on marital debts as T.J. claimed here, you’d best come up with some credible corroborating proof such as receipts or testimony, particularly when your client has already damaged his own credibility in his testimony.
- Vague testimony, such as T.J.’s general claim about the marital debts not only lacks credibility, it also is most unhelpful to the court. What bills? When? How much was paid? To whom?
Valuation with Less than Ideal Proof
April 14, 2020 § 5 Comments
If you’re looking for the most efficient way to drain your client of all credibility in financial proof, let him submit an 8.05 financial statement that only an idiot would accept as accurate.
When Michael and Lisa Dickinson were in trial over their divorce, Michael submitted a financial statement listing the value of their former residence as $500,000, unsupported by any other evidence. Lisa valued it at $126,170, supported by the tax collector’s bill and valuation. Neither party offered a professional appraisal. The chancellor found Lisa’s valuation more credible. Dissatisfied, Michael appealed.
In Dickinson v. Dickinson, decided March 31, 2020, the COA affirmed. Judge Tindell’s opinion:
¶25. Michael also argues that the chancellor erred in the valuation of the couple’s marital home. Michael concedes that neither he nor Lisa submitted formal appraisals of the home to the chancellor at trial. Rather, each party submitted their Rule 8.05 financial statements with their alleged valuations of the home. [Fn omitted] Michael submitted a $500,000 valuation of the home, which the chancellor found to be speculative and unsupported by any other evidence or documentation. Lisa submitted a valuation of $126,170 along with the Jackson County Tax Collector’s bill and valuation statement, issued on November 26, 2014, which also valued the home at $126,170. Based upon the limited evidence presented, the chancellor valued the home at $126,170 and awarded the home to Lisa.
¶26. Lisa argues that the chancellor appropriately valued the home based upon the limited available evidence, and she cites to Williams v. Williams, 264 So. 3d 722 (Miss. 2019), in support of her argument. In Williams, the Mississippi Supreme Court upheld a chancellor’s valuation of a couple’s marital property based upon limited evidence submitted by the parties. Id. at 728 (¶21). During the couple’s divorce proceedings, the wife submitted no evidence to the chancellor related to valuation other than her Rule 8.05 statement, while the husband did provide some documentation supporting his valuation of the marital property. Id. at (¶18). The chancellor ultimately valued the property based upon the husband’s documentation, which the wife appealed. Id. In upholding the chancellor’s valuation, the Supreme Court stated that it “refuse[d] to blame the chancellor for a party’s failure to present sufficient evidence of property value.” Id. at (¶20). The Supreme Court further held that “the chancellor’s duty is not to obtain appraisals of marital property.” Id. (citing Dunaway v. Dunaway, 749 So. 2d 1112, 1121 (Miss. Ct. App. 1999)). Where the parties present the chancellor with “less than ideal” proof, the Supreme Court held that the chancellor may rightfully use the available proof to arrive to the best conclusion possible. Id. at (¶21).
¶27. Here, the chancellor found Michael’s $500,000 valuation to be speculative and unsupported by any evidence, other than his Rule 8.05 financial statement. While Lisa also failed to submit an appraisal at trial, the chancellor found that her $126,170 valuation matched the Jackson County Tax Collector’s bill and valuation. Again, we cannot fault the chancellor for the parties’ lack of evidence. As such, we also cannot say that the chancellor
committed manifest error by using the best information available to value the marital home.
Thoughts:
- A common and ridiculous practice is for parties to assign high values to items they agree for the other to have, and low values to items that they want for themselves. In one case I had where the parties agreed that the husband would have ownership of a riding lawnmower, the wife valued it at $18,000, and the husband valued it at $200. There was no testimony that it was either gold-plated or rusted out, so I settled somewhere in the lower extremity of that range. The case was affirmed on appeal, so I guess I did something right.
- I think it’s malpractice if you don’t go over your client’s 8.05 in advance of trial and challenge the figures. You need to ask, among others: how did you come up with this figure?; are you really spending $700 a month on gas and oil?; why is the spinet piano valued at $10,000? If you don’t get those kinds of things straightened out in your office, you are sending your client off like a sheep to the slaughter.
- On a related note, those of you who don’t work with your clients on their 8.05’s should know that it is painfully obvious that you neglected this aspect of client representation. Figures don’t add up. Some are almost illegible. One I saw actually had a dirty footprint on the front page. Another chancellor calls those “Parking Lot 8.05’s” because they look like they were hastily scrawled in the parking lot before entering the courthouse — and they probably were.
Jointly-titled Separate Property
April 13, 2020 § 3 Comments
Carrie Anderson’s grandmother decided to give her a 59-acre parcel of land in 2013. When she went to the family lawyer’s office to pick up the deed, she found that he had added the name of her husband, T.J., to it as joint tenant. She later said that she was afraid to insist that it be titled in her sole name because of T.J.’s temper.
In 2015 the parties consented to an ID divorce and the chancellor found the property to be part of Carrie’s separate estate. T.J. appealed.
In Anderson v. Anderson, the COA affirmed. Judge Tindell wrote for the unanimous court:
¶18. The chancery court found that the fifty-nine acres from Carrie’s grandmother jointly titled in Carrie’s and T.J.’s names was Carrie’s separate, non-marital property, as follows:
While some coercion may have been placed on Carrie to have T.J.’s name place on the deed [to the fifty-nine acres], even if there had been no coercion, the Court would still find the 59 acres to be Carrie’s separate, non-marital property. The property came from Carrie’s grandmother debt free. The parties never improved the property or put any money into the property.
The chancery court recognized that “[i]nter vivos gifts and inheritances are considered non-marital property unless they have been commingled.” McDonald v. McDonald, 115 So. 3d 881, 885-86 (¶12) (Miss. Ct. App. 2013). The chancery court found that “[t]he fact that the 59 acres was jointly titled [in this case] did not make it a marital asset.” Id. at 886 (¶¶12-14) (finding property purchased with funds inherited by a husband was the husband’s
separate property despite the property being jointly titled in both the husband and the wife); see also Marter v. Marter, 95 So. 3d 733,737-38 (¶¶11-16) (Miss. Ct. App. 2012) (finding that property inherited by a wife prior to marriage and later jointly titled remained the wife’s separate property); Delk v. Delk, 41 So. 3d 738, 741-42 (¶17) (Miss. Ct. App. 2010) (recognizing that condominium property separately owned by a wife prior to marriage but
later jointly titled did not become marital property until the couple began using the property as their marital home, and thus the husband was not entitled to a full half of the proceeds from the condominium). The chancery court expressly noted that “[t]he parties never lived on or improved the property. There was absolutely no commingling with marital property nor was the property utilized for domestic purposes.” Continuing, the chancery court found that the fifty-nine acres did “not los[e] its status as nonmarital property,” and ordered that T.J. deed his interest in the tract of land to Carrie.
¶19. T.J. asserts that the chancery court committed manifest error in this determination because the property at issue in this case was never Carrie’s separate property in the first place, and thus the cases the chancery court relied upon in making its determination, McDonald, Marter, and Delk, are distinguishable. T.J. argues that in contrast to the circumstances in these cases, Carrie did not inherit the property, it was not purchased with inherited money, and was it not property Carrie owned prior to the marriage and later jointly titled. Rather, the property was acquired during the marriage and titled directly from Mrs. Hansberger to both T.J. and Carrie as an inter vivos gift; therefore, according to T.J., it is marital property, and he is entitled to an equitable division of that property.
¶20. Carrie, on the other hand, asserts that the evidence supports the chancery court’s determination that the fifty-nine acres from her grandmother is her separate property and that under the cases relied upon by the chancery court, the mere fact that the property is jointly titled in both her and T.J.’s names does not, standing alone, convert the property to marital property subject to equitable distribution.
¶21. In addressing this issue, we acknowledge that “[a]ssets acquired or accumulated during the course of a marriage are subject to equitable division unless it can be shown by proof that such assets are attributable to one of the parties’ separate estates prior to the marriage or outside the marriage.” Hemsley v. Hemsley, 639 So. 2d 909, 914 (Miss. 1994); see generally Deborah H. Bell, Bell on Mississippi Family Law § 6.03[1][a], at 139 (2d ed. 2011) (“Because of the presumption in favor of marital property, a spouse seeking separate classification bears the burden of proof.”). Although, as T.J. asserts, the record does contain the 2013 warranty deed from Mrs. Hansberger to both T.J. and Carrie obtained by them during their marriage, we find that the record also contains substantial, credible evidence supporting the chancery court’s determination that this property is attributable to Carrie’s separate estate.
¶22. In particular, although neither Mrs. Hansberger nor the attorney who prepared the deed testified at trial, Carrie testified that it was her grandmother’s intent that she (Carrie) have the property. [Fn omitted] Moreover, there was ample evidence presented at trial that Carrie legitimately feared for her safety and welfare if she did not have the land jointly titled, and thus she was essentially coerced into doing so. [Fn 9] Cf. Estate of Langston v. Williams, 57 So. 3d 618, 620-21 (¶10) (Miss. 2011) (describing the analogous concept of undue influence in the will context as using “undue methods for the purpose of overcoming the free and unrestrained will of the testator so as to control his acts and to prevent him from being a free agent”); Bailey v. Estate of Kemp, 955 So. 2d 777, 783 (¶23) (Miss. 2007) (discussing the analogous concept of duress as requiring “(1) that the dominant party threatened to do something which he had no legal right to do; and (2) that the wrongful threat overrode the volition of the victim and caused him to enter an agreement against his free will”).
[Fn 9] As detailed in the statement of facts, Carrie testified that she was too afraid of T.J. to have title placed in her name alone. Regarding this fear, the record reflects that T.J. had attacked Carrie, punched numerous holes in the walls and doors in both their Tupelo and Senatobia homes, killed several of their dogs, and frequently threatened and verbally abused Carrie. As noted, the chancery court granted Carrie a divorce on the statutory ground of habitual cruel and inhuman treatment.
¶23. In short, there is substantial, credible evidence that the property was intended to be Carrie’s property and that her fear of T.J. prevented her from having it titled in her name. The chancery court therefore was correct in relying on McDonald, 115 So. 3d at 885-86 (¶¶12-14), in determining that “[t]he fact that the 59 acres was jointly titled [in this case] did not make it a marital asset.” See also Marter, 95 So. 3d at 737-38 (¶¶11-16); Delk, 41 So. 3d at 741-42 (¶17). The record reflects that the property was debt-free, the parties made no financial contribution toward the property or its maintenance during the marriage, and the parties did not use it. We find no manifest error in the chancery court’s determination on this issue, and we therefore find that T.J.’s first assignment of error is without merit.
April 8, 2020 § Leave a comment
R.I.P. Attorney Les Prichard of Meridian, of complications from covid.
Les was retired many years and was in his 90’s. He was formerly a partner in the firm of Deen, Cameron, Prichard, and Young.
The Phantom Motion for Continuance
April 8, 2020 § 1 Comment
Aside from the facts that it involves an all-pro se contested divorce, with all-pro se post trial motions, followed by an all-pro se appeal, the case of McChester v. McChester, handed down March 10, 2020, from the COA, is a powerful illustration of the noxious phenomenon known as the “phantom motion for continuance.”
Hold on. No need to reach for Black’s Law Dictionary or begin searching Westlaw; the term is my own, and you won’t find any legal authority for it. I apply it to the situation that arises when one side has a matter set for trial or other hearing, and the other side files a motion for continuance, not set for hearing, not otherwise presented to the court, and sometimes even on the eve of the trial setting, claiming that urgent and necessitous circumstances prevent the lawyer’s attendance. There is usually no documentation or even an affidavit. We are apparently expected to take the lawyer’s word for it.
As I mentioned, McChester involved pro se litigants, but the dilemma the judge faces is the same as when lawyers are involved. Here is how Judge Jack Wilson’s opinion described what transpired:
¶3. In December 2016, Willie McChester filed a pro se complaint for divorce against his wife, Dorothy, in the Harrison County Chancery Court. Willie alleged that he had been a resident of Harrison County for at least six months, though Dorothy remained a resident of Hinds County, where the couple resided prior to their separation. Willie sought a divorce based on irreconcilable differences. He did not allege any fault-based ground for divorce. In January 2017, Dorothy filed a pro se “response” to the complaint. Dorothy confirmed that she was a resident of Hinds County, and she requested a divorce based on irreconcilable differences and Willie’s desertion of her. In February 2017, without leave of the court, Willie filed a pro se amended complaint for divorce, alleging both irreconcilable differences and desertion. In March 2017, Dorothy filed another pro se response in which she again
requested a divorce based on irreconcilable differences and Willie’s desertion of her. She denied that she had deserted Willie.
¶4. In August 2017, the court entered an order addressing a discovery dispute. The court ruled that venue and jurisdiction in Harrison County were proper based on Willie’s residence. The court also stated that it would consider transferring the case to Hinds County, where the marital property was located and Dorothy still resided, if a written motion to transfer venue was filed. No such motion was filed, and the court administrator attempted to work with the pro se litigants to set a trial date. The case eventually was set for trial on March 13, 2018. Willie did not appear in court on that date. The court did not proceed with trial but instead entered an order on March 13, 2018, resetting the trial for May 30, 2018.
¶5. On May 22, 2018, Willie filed a motion to postpone the trial. Willie stated that he was scheduled to be admitted to the hospital for unspecified “treatment on his pre-existing health issues on May 25, 2018.” He stated that his treatment was expected to require three to five days in the hospital followed by one to two weeks of recovery. Willie asked the court to provide him with potential trial dates in June or July. Willie did not attempt to notice his motion for a hearing prior to the trial date.
¶6. On May 30, 2018, Willie did not appear in court. The chancellor noted that Willie had failed to submit any documentation or medical evidence to support his request for a postponement. The chancellor asked Dorothy if she had any response to Willie’s motion. Dorothy stated that she was prepared for trial and desired to move forward on her counterclaim for divorce based on desertion. She stated that it was a hardship for her to continue to have to travel from Jackson to Gulfport for court only to have Willie fail to appear. The chancellor then denied Willie’s motion for a postponement based on the lack of supporting evidence and Willie’s prior failure to appear. The chancellor ruled that Dorothy could proceed on her counterclaim for divorce based on desertion.
If you predicted that Dorothy would get her divorce in Willie’s absence, you win.
As I said, this scenario is not unique to pro se litigants. I see it with lawyers, too.
The most objectionable situation in which this arises is where one party has a motion for temporary relief set by R81 process. A lawyer files a Motion for Continuance alleging that she needs a continuance because she is scheduled to be in another court far, far away at the appointed time. The motion is not set for hearing; it’s just there, staring at everyone from the MEC screen. When the case is called, as promised, the moving lawyer is far, far away, or says she is.
To be fair, in most cases the appearing lawyer graciously agrees to hold off, and the matter fades from the judge’s radar screen.
But sometimes the lawyer in court objects, arguing how unfair it is that his client travelled all the way from Southaven to Meridian and needs relief like right now. How to be fair? As you probably can guess, chancellors hate to be put in this predicament.
On a related, but side, note: why did that lawyer sign on to represent that client knowing full well that she could not make the temporary hearing? Back in the Stone Age when I represented clients I would call the attorney on the other side and ask if she would agree to a continuance in view of my conflict. Nine times out of ten the matter was resolved in that conversation. If the attorney demurred — usually because of exigent circumstances that we could not resolve — I would then have two options:
- I could ask the attorney to agree to hear a motion to continue on short notice. This was almost always agreed, and our judges would accommodate us, usually in a brief 5-minute appearance in chambers.
- If the preceding would not work, I would decline to represent the client and send them on to someone competent whose calendar was open.
I’m not sure when or why that fell into disuse. Maybe lawyers nowadays are so pressed for retainers that they can’t afford to send anyone away. Whatever the reason, it did seem at the time that it was a civilized way to handle business.
Finally, I need to remind you that a motion filed without a notice of hearing or R81 summons setting it has the same legal effect as not filing a motion.
Tell us What You’re Really Thinking
April 7, 2020 § 4 Comments
We all know that it’s some times better just to keep your thoughts to yourself. And we all know, too, how difficult that may be.
Imagine then what a mighty struggle it can be for a chancellor to suppress the urge to expound on the folly on parade in her court room. Exasperation can overwhelm the best intentions of self control.
When that intemperate outburst is a statement that varies from the legal standard the court is supposed to apply, is that error?
In a recent COA case, the court held that it did not. In Smith v. Bellville, decided March 24, 2020, Judge Greenlee wrote the majority opinion:
¶14. Tiffany does not dispute that there was a material change in circumstances, but she claims that the chancellor applied an erroneous legal standard in awarding sole physical custody to Nathan. Specifically, Tiffany argues that the chancellor did not make the custody determination based on the child’s best interest but instead on who “lived up to” the initial custody agreement. Tiffany cites to Bell v. Bell, 572 So. 2d 841 (Miss. 1990), for the proposition that a custody agreement that requires a parent to live in a certain location is unenforceable. And she argues that the chancellor imputed such a term into the initial custody agreement and punished her for moving by awarding sole physical custody to Nathan.
¶15. A review of the record shows that during the trial the chancellor was reluctant to modify custody. She explained that she had encountered too many parties who agreed to joint custody “just to get what they need[ed,] when they want[ed] it.” The chancellor asked why Nathan and Tiffany initially agreed to joint physical custody, and Tiffany’s attorney responded that there were “a lot of reasons.” However, Nathan’s attorney stated that when the divorce on the grounds of uncondoned adultery was pending, Nathan was “pursuing full custody” of B.B. The chancellor then stated, “I know that when I have a divorce on grounds and the parties come in and they agree and they do it – – and I don’t know why they do it because they feel they might lose or whatever. Then they come back within five years wanting to change it, I have difficulties with that.” The chancellor further stated, “[T]his [c]ourt does not like it when people . . . enter into an agreement to keep one party from getting paramount physical custody . . . without anticipating what your ages are[,] . . . what your jobs are, [and] your abilities to move. And then you come back to me and say, oh, well, I moved and I want to change things.”
¶16. From the bench, the chancellor discussed enforcing the initial custody agreement until B.B. was in the first grade and repeatedly stated that Nathan and Tiffany would have to “figure out how to make [joint custody] work.” [Fn omitted] However, when the chancellor entered her written “Opinion and Final Judgment,” the chancellor found that the move was a material change in circumstances and, after conducting an Albright analysis, found that it would be in B.B.’s best interest to award sole physical custody to Nathan.
¶17. At the hearing on Tiffany’s post-trial motion, the chancellor expressed her belief that joint physical custody “is impossible in today’s society.” Additionally, she stated that joint physical custody was not in a child’s best interest because children become “victims” who “live with the backpack[s] on their back[s].” But the chancellor noted that Nathan and Tiffany initially agreed to joint physical custody and that she would have to determine how to make them “live up to” that agreement. But later, the chancellor stated several times that it was her responsibility to determine the best interest of the child, and she declined to enforce the initial joint physical-custody agreement. Rather, the final judgment, which awarded sole physical custody to Nathan, remained in place.
¶18. Although the chancellor made various remarks throughout the proceedings, the chancellor ultimately concluded that her decision must be based on the best interest of the child and conducted an Albright analysis before finding that it was in B.B.’s best interest to award sole physical custody to Nathan. Accordingly, we conclude that the chancellor did not apply an erroneous legal standard in awarding sole physical custody to Nathan.
I’m with the judge that too often joint custody is an easy way out for the lawyers. They can sell the idea that their client isn’t really “losing” on the custody issue, particularly in fractious cases. The problem comes after the divorce when the already-combatant parties concoct innovative, devilishly clever, and creative way to obstruct, antagonize, and frustrate each other using the child as bait, pawn, and cudgel. After a few years of this mutual agony, with several trips back before the judge for contempts, one party has to make an employment-related move to another state, and then the real fun begins.
Attorney’s Fees in Lieu of Punitive Damages
April 6, 2020 § Leave a comment
Allen Cronier got into a property dispute with two businesses owned by the Rainwater brothers. The dispute spilled into chancery court, and, following a trial, in which the chancellor ruled against him and awarded attorney’s fees, Cronier appealed. The COA affirmed in part, but reversed in Cronier v. ALR Partners L.P., 248 So. 3d 861, 864 (¶1) (Miss. Ct. App. 2017), cert. denied, 247 So. 3d 1264 (Miss. 2018). The court remanded for a determination by the chancellor whether the award of attorney’s fees against Cronier was in lieu of punitive damages.
Here is a recap of the case from Cronier v. ALR Partners, et al., decided by the COA on March 10, 2020:
¶2. Cronier purchased a parcel of land in Jackson County in July 2012. Id. at 865 (¶¶2-3). [Fn omitted] At the time, Cronier believed that the parcel comprised eighty acres, though he did not have the property surveyed before he purchased the property to verify that understanding. Id. Cronier had the property surveyed later. Id. at (¶3). The survey revealed that the parcel he had purchased was only about seventy acres and that there was a boundary issue with the adjoining property owned by the Rainwaterses. Id. at (¶¶3-5). The survey also indicated that the property corners and boundaries were marked with posts, the remains of old fences, and yellow paint blazes on trees. Id. At a post-survey meeting between Cronier and the Rainwaterses, before Cronier abruptly left, Cronier announced that “he had paid for eighty acres and said, ‘by God I’m going to get eighty acres . . . . I know what I’ve got to do.’” Id. at 866 (¶6). Following this meeting, the Rainwaterses went to inspect the property and found that certain old boundary markers were missing. Id. at (¶7). In March 2013, Cronier informed the Rainwaterses that he had conveyed the disputed property to his minor granddaughter. Id. at (¶8). The Rainwaterses visited the property again and discovered that more boundary markers had been removed or defaced. Id. at (¶9). Cronier later built a fence and gate around the perimeter of the property, including the disputed ten-acre parcel. Id. at (¶11).
¶3. This litigation ensued. Id. at (¶¶10-11). The Rainwaterses asserted claims against Cronier for trespassing, compensatory and punitive damages, and attorney’s fees. Id. In March 2016, the chancellor ruled in favor of the Rainwaterses on their claim of adverse possession of the 9.57 acres at issue, and the court entered a final judgment to this effect in April 2016. Id. at 868 (¶19). On December 12, 2017, we affirmed the court’s judgment regarding adverse possession, but we reversed and remanded in part “for clarification of whether punitive damages were awarded in the form of attorney fees.” Id. at 871-72 (¶39) (citing Pursue Energy Corp. v. Abernathy, 77 So. 3d 1094, 1102 (¶26) (Miss. 2011); AquaCulture Tech. Ltd. v. Holly, 677 So. 2d 171, 184 (Miss. 1996)).
¶4. On January 29, 2018, before the mandate issued from this Court, [Fn omitted] the chancery court entered a final judgment on remand, finding that “Cronier acted with actual malice” and ordering Cronier to “pay the Rainwaters[es’] attorney’s fees in the amount of $10,790.00 in lieu of punitive damages.” Cronier filed a motion to set the judgment aside based on the chancery court’s lack of jurisdiction pending the final disposition of his appeal. On February 14, 2018, the chancery court entered an agreed order setting aside its January 29, 2018 final judgment.
¶5. On October 1, 2018, after the appeal was final, the chancery court entered its final judgment. In it, the chancellor adopted and incorporated the findings contained in the January 29, 2018 final judgment. Specifically, the chancellor found that Cronier had “acted with actual malice, and [Cronier] shall pay the Rainwaters[es’] attorney’s fees in the amount of $10,790.00 in lieu of punitive damages.” Relying on Pursue Energy and Holly, the chancellor clarified that attorney’s fees were awarded in lieu of punitive damages “due to [Cronier’s] actions, which included erecting a fence around the property in clear disregard of the Rainwaters[es’] rights and conveying property to his minor granddaughter when he knew there was a serious claim for the subject property.” Cronier now appeals from this judgment.
In his second appeal, Cronier argued that the chancellor erred in awarding attorney’s fees in lieu of punitive damages, and that the evidence was insufficient to support the judge’s findings. Judge Greenlee wrote for the 9-1 court:
¶7. On appeal, Cronier contends that the chancellor erred in awarding attorney’s fees in lieu of punitive damages. Specifically, he contends that the evidence is insufficient to support the chancellor’s finding that he acted with “actual malice,” such that the award of attorney’s fees in lieu of punitive damages was improper.
¶8. “Mississippi follows the general rule that, in the absence of a contractual agreement or statutory authority, attorney’s fees may not be awarded except in cases in which punitive damages are proper.” Tunica County v. Town of Tunica, 227 So. 3d 1007, 1027 (¶49) (Miss. 2017) (citing Grisham v. Hinton, 490 So. 2d 1201, 1205-06 (Miss. 1986)). Generally, punitive damages may only be awarded when a plaintiff proves “by clear and convincing evidence that the defendant against whom punitive damages are sought acted with actual malice, gross negligence which evidences a willful, wanton or reckless disregard for the safety of others, or committed actual fraud.” Miss. Code Ann. § 11-1-65(1)(a) (Rev 2014); see also Wise v. Valley Bank, 861 So. 2d 1029, 1034 (¶15) (Miss. 2003) (“[T]he plaintiff must demonstrate a willful or malicious wrong, or the gross, reckless disregard for the rights of others.”). “[A]n actual award of punitive damages is not a prerequisite for an award of attorney’s fees; rather, attorney’s fees are warranted where ‘the awarding of punitive damages would have been justified,’ even if punitive damages are not awarded.” Tunica County, 227 So. 3d at 1029 (¶54) (quoting Holly, 677 So. 2d at 185). Thus, “attorney fees may be awarded instead of punitive damages.” Cronier, 248 So. 3d at 871 (¶39).
¶9. On remand, the chancellor found that Cronier acted with actual malice based on Cronier’s actions, “which included erecting a fence around the property in clear disregard of the Rainwaters[es’] rights and conveying property to his minor granddaughter when he knew there was a serious claim for the subject property.” Cronier responds that attorney’s fees are not proper and that the “conduct or conditions” required to award punitive damages are not present in this case. After reviewing the record, we find no manifest error in the chancellor’s finding of actual malice.
¶10. The record thus supports the chancellor’s finding that Cronier’s conduct justified an award of punitive damages. After Cronier’s surveyor revealed that the property Cronier purchased was only seventy acres, the parties met to discuss the issue. Cronier declared that he had paid for eighty acres and said, “[B]y God I’m going to get eighty acres . . . . I know what I’ve got to do.” Thereafter, the Rainwaterses discovered that boundary markers had been removed or defaced, and Cronier informed the Rainwaterses that he had conveyed the parcel, including the disputed land, to his minor granddaughter. Cronier also proceeded to erect a fence and gates around the property despite the dispute over title. The chancellor’s findings that Cronier acted with “actual malice” and in “clear disregard of the Rainwaters[es’]rights” are thus supported by substantial evidence, and the chancellor did not err in awarding attorney’s fees in lieu of punitive damages.
Two thoughts:
- I see requests for attorney’s fees in all kinds of suits that aren’t divorce-related or contempts. Seldom does the proof rise to the level spelled out by Judge Greenlee in ¶8. If you are serious about pursuing that claim for fees, you’ve got to put adequate proof in the record. Paragraph 8 tells you what you need to prove.
- And the moral of this story is: Although it’s true that self-help is always an option, it can cost you.
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