April 2, 2019 § Leave a comment
The COA’s decision in Wilkinson v. Wilkinson, handed down February 26, 2019, includes a nifty summary of the law applicable to award of attorney’s fees for contempt. Here is what Chief Judge Barnes’s opinion said:
¶51. The chancellor found the attorney’s fees incurred by Stephanie were reasonable, and billed at a reasonable rate given the time involved to prosecute the contempt allegations. The chancellor found the rate of $225 per hour customary, and her total fees incurred were $18,498.27. Stephanie’s counsel proffered that twenty-percent of his overall fees were related to contempt, which the chancellor accepted as proper.
¶52. The law on attorney’s fees for contempt is as follows:
“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. Fees awarded on this basis, though, should not exceed the expense incurred as a result of the contemptuous conduct.” That is, fees incurred litigating other matters—such as custody modification or child support—are not recoverable based on the contempt.
Heisinger v. Riley, 243 So. 3d 248, 259 (¶45) (Miss. Ct. App. 2018) (citations omitted). “[I]n contempt actions, attorney’s fees are awarded ‘to make the plaintiff whole.’” Bounds v. Bounds, 935 So. 2d 407, 412 (¶18) (Miss. Ct. App. 2006) (quoting Mabus, 910 So. 2d at 490 22 (¶13)). The Mississippi Supreme Court established several factors to determine the proper amount of attorney’s fees to award in domestic cases in McKee v. McKee, 418 So. 2d 764, 767 (Miss. 1982). However, “the establishment of the McKee factors [is] not necessary” to recover attorney’s fees for willful contempt of a lawful court order. Lewis v. Pagel, 172 So. 3d 162, 178 (¶40) (Miss. 2015) (quoting Mixon v. Mixon, 724 So. 2d 956, 964 (¶29) (Miss. Ct. App. 1998)).
¶53. Here, the chancellor found a McKee factor analysis was unnecessary to award attorney’s fees because some of Stephanie’s contempt claims were successful. Accordingly, the court award Stephanie approximately twenty-percent of $18,498.27, or $3,700 in attorney’s fees for Rod’s contempt of child support and visitation. Because both parties were found in contempt for derogatory remarks, the court declined to award attorney’s fees to either party on that issue based upon the clean-hands doctrine.
¶54. Rod argues that the chancellor erred as a matter of law in stating one who successfully prosecutes a contempt action “is entitled to attorney’s fees without a showing of need” instead of “eligible.” (Emphasis added). We do not interpret the chancellor’s remarks to mean it is a mandatory finding but that the court is authorized to award fees under circumstances such as this.
¶55. Additionally, because Stephanie was also found in contempt on the derogatory remarks, Rod argues she cannot receive any attorney’s fees for contempt because of the unclean-hands doctrine. This doctrine “prevents a complaining party from obtaining equitable relief in court when he is guilty of willful misconduct in the transaction at issue.” Vincent v. Rickman, 167 So. 3d 245, 249 (¶11) (Miss. Ct. App. 2015) (quoting Bailey v. Bailey, 724 So. 2d 335, 337 (¶6) (Miss. 1998)). However, we are not persuaded by this argument. The court did not award attorney’s fees to either party because both were found in contempt on this issue. This was the only issue for which Stephanie was found in contempt; however, Rod was found in contempt on two others. We find no error with the chancellor’s award.
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.
February 20, 2013 § 1 Comment
A subject of vital interest to lawyer is, or should be, what it takes to get an award of attorney’s fees at trial. The cases on the subject are all over the proverbial ballpark, so I found the following language from Judge Fair’s specially concurring opinion to the COA’s decision in Jordan v. Jordan, handed down December 11, 2012, affirming Judge McKenzie, to be quite helpful.
¶23. I write separately to address the award of attorney’s fees by a trial judge, a subject the Mississippi Supreme Court has discussed directly only twice in the last five years.
¶24. It is not disputed by judges and practitioners that the “best practice” in awarding fees is a ruling by the trial judge in which each of the factors set out in McKee v. McKee, 418 So. 2d 764, 767 (Miss. 1982), is specifically addressed.
¶25. Ronald argues that the lack of such a discussion should require mandatory reversal as is the case in other “factor determination” cases. See Lowrey v. Lowrey, 25 So. 3d 274, 280 (¶7) (Miss. 2009) (factor tests, as provided in Ferguson and Armstrong, must be considered on the record in every case); Powell v. Ayars, 792 So. 2d 240, 244 (¶8) (Miss. 2001) (holding failure of trial court to address each Albright factor in awarding custody was reversible error).
¶26. Not so, says the Mississippi Supreme Court. In West v. West, 88 So. 3d 735, 747 (¶57) (Miss. 2012), the supreme court upheld the chancellor’s award of attorney’s fees “because it was not manifestly wrong.” The court explained that “[a]lthough the trial judge did not include an analysis of the McKee factors in his judgment, his award was not unreasonable, so we affirm.” Id. at (¶58) (citation omitted).
¶27. The same standard was applied to a circuit court. In Collins v. Coppers, 59 So. 3d 582, 593 (¶35) (Miss. 2011), the court noted:
The trial judge began his discussion of the reasonableness of the defendants’ attorneys’ fees by noting that his analysis was to be guided by the McKee factors . . . . The judge noted that this litigation has been ongoing for over four years, requiring several hearings, and the pleadings are voluminous. After considering those factors, the court’s knowledge of what is charged for legal services in the area, and all other [McKee ] factors, the trial judge found that the amount of attorneys’ fees submitted by the defendants was reasonable.
¶28. While I would continue to recommend an on-the-record analysis of each McKee factor to support an award of attorney’s fees, the failure to do so has not been considered reversible error.
That’s about as good a practice guide on the subject as you will find anywhere.
Remember that, in a divorce case, you must establish inability to pay before the judge can reach the issue of reasonableness. Gray v. Gray, 745 So.2d 234, 239 (Miss. 1999). After you have laid that predicate, then the question becomes whether the chancellor had sufficient evidence to support his decision on attorney’s fees, whether or not all of the McKee factors are proven or addressed. A case illustrating these points is Tatum v. Tatum, decided December 11, 2012, by the COA.
January 15, 2013 § Leave a comment
I sometimes quip that our body of case law is reaching biblical proportions, meaning that one can find authority to support opposite sides of most issues, and sometimes three or more sides.
Take the matter of attorney’s fees. It used to be fairly clear that in all but contempt you had to prove inability of the party to pay and the claim had to be proven reasonable via the McKee factors. In contempt actions proof of inability to pay is not relevant because the award is punitive.
Last September I posted here about the COA’s Bowen case, which reiterated the contempt rule, and remanded for proof of reasonableness under McKee. That post includes links to other posts on the subject of attorney’s fees.
In Brown v. Weatherspoon, decided by the COA on November 6, 2012, Kenyader Weatherspoon had produced DNA results proving conclusively that he was not the father of a child born to Serhonda Brown. Weatherspoon filed an MRCP 60(b) action seeking to set aside a prior judgment, to which he had agreed, establishing child support. Brown contested the 60(b) petition, and she persisted in a collection effort for unpaid child support. She also testified that she knew the identity of the natural father, and that she had no intention of suing him for child support. Based on Brown’s position, the chancellor assessed Brown $9,210 in attorney’s fees incurred by Weatherspoon in the case. Brown appealed.
In her appeal, Brown argued that she had the right to defend against the 60(b) action, and further that Weatherspoon would have incurred the fees anyway in the prosecution of his petition. She also argued that Weatherspoon failed to prove either inability to pay or the McKee factors.
Judge Roberts, writing for the COA, said:
¶22. The award of attorney’s fees is generally left to the discretion of the chancellor. Arthur v. Arthur, 691 So. 2d 997, 1004 (Miss. 1997) (citations omitted). “We are reluctant to disturb a chancellor’s discretionary determination whether or not to award attorney[’s] fees and of the amount of any award.” Id. (citation and internal quotation omitted). The chancellor based her decision to award Weatherspoon attorney’s fees on Brown’s vigorous insistence that Weatherspoon pay child support when, based on the DNA test results, Brown knew Weatherspoon was not M.B.’s father. The chancellor also noted that Brown knew the identity and whereabouts of the man she believes to be M.B.’s biological father, but she chose not to pursue paternity testing or child support from him. In her order, the chancellor referenced the fact that when Brown was asked why she had not sought child support from M.B.’s biological father, Brown responded that “she just did not want to.”
¶23. Furthermore, in McKee, the supreme court held that an award of attorney’s fees based on an estimated 850 hours worked on the case was too speculative to support the award. McKee, 418 So. 2d at 766-67. But when a chancellor bases an award of attorney’s fees on an itemized bill, there is substantial evidence to support the chancellor’s award. Dobbins v. Coleman, 930 So. 2d 1246, 1252 (¶27) (Miss. 2006). Weatherspoon submitted itemized bills from his attorney. The chancellor based her award on those itemized bills. Consequently, we do not find that the chancellor abused her discretion.
This was not an award of attorney’s fees based on contempt, so it is unclear why inability to pay was not a factor. The award was, however, in the nature of a sanction, since the chancellor was clearly punishing Sheronda for pursuing the futile action and thereby, I suppose, inflating both sides’ legal bills.
As for reasonableness, it would appear that either McKee proof or itemized bills will accomplish the same purpose. In other words, there must be something substantial in the record to support the chancellor’s finding that the fee award is reasonable. As I have said here before, my suggestion is that you put on proof of both the McKee factors and documentation of your time in the case, so that both are in the record if you need them.
September 17, 2012 § 4 Comments
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 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.
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.
August 7, 2012 § 2 Comments
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.
April 9, 2012 § 5 Comments
When you have worked hard on a case and prevailed, you’d like to be adequately compensated. You put on your proof of attorney’s fees and the judge makes a handsome award. Only problem is, the other side appeals and the COA tosses out your award, much to your chagrin. How should you have bulletproofed that award?
In the case of Alexander v. Alexander, decided March 27, 2012, the chancellor had awarded Amanda Alexander a judgment for nearly $32,000 in attorney’s fees in a divorce action against her husband, Khari. The COA reversed the special chancellor’s decision for failure of to make any findings of inability to pay or about the reasonableness of the request. Here’s what the opinion said on the point:
“An award of attorney[’s] fees is a matter largely within the sound discretion of the chancellor.” Dickerson v. Dickerson, 34 So. 3d 637, 648 (¶43) (Miss. Ct. App. 2010) (citing Smith v. Smith, 614 So. 2d 394, 398 (Miss. 1993). “Attorney[’s] fees should only be awarded in an amount that compensates for services rendered.” Id. at (¶44) (citing McKee v. McKee, 418 So. 2d 764, 767 (Miss. 1982)). The factors to be analyzed in determining whether to award attorney’s fees include: (1) “the relative financial ability of the parties;” (2) “the skill and standing of the attorney employed,” (3) the novelty and difficulty of issues in the case, (4) the responsibility required in managing the case, (5) “the 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. McKee, 418 So. 2d at 767.
¶15. The testimony showed Khari earned approximately $90,000 a year; however, Khari did not file a financial statement pursuant to Uniform Chancery Court Rule 8.05. Amanda asserts that her inability to pay her attorney’s fees was proven because the chancellor found her household expenses exceeded her income. The chancellor made no findings of fact on the issue of her inability to pay or Khari’s ability to pay. An itemized bill from Amanda’s attorney is included in the record; however, the chancellor did not examine the reasonableness of the fees. Before attorney’s fees are awarded, the chancellor must determine if the fees were fair, reasonable, and necessary. Dickerson, 34 So. 3d at 648 (¶44) (citing McKee, 418 So. 2d at 767). Since the chancellor failed to make findings pursuant to the McKee factors, we also reverse and remand on this issue.
In a divorce case, the party seeking an award of attorney’s fees must prove inability to pay. Deen v. Deen, 856 So.2d 736, 739 (Miss.App. 2003); Duncan v. Duncan, 915 So.2d 1124, 1128 (Miss.App. 2005); Sullivan v. Sullivan, 43 So.3d 536, 541 (Miss. App. 2010). Ability of the opposing party to pay must also be considered. Sarver v. Sarver, 687 So.2d 749, 756 (Miss. 1997).
Interestingly, the COA decision had already reversed and set aside the divorce in Alexander for failure to prove grounds before it addressed the award of attorney’s fees. There is no mention of the effect of that reversal on the fee award.
So what could counsel here have done to protect the attorney’s fees? Here are a few suggestions:
- It’s axiomatic that if you don’t put on the proper proof, the chancellor will not have the basis to make an adequate ruling. Print out the McKee factors and address every single one of them in your testimony. Don’t skip or skimp on anything! There is case law to the effect that, even if the chancellor never mentions McKee, he will presumed to have considered the factors IF there is evidence in the record that supports the award.
- Make sure you have adequate time records or other documentation in support of your testimony as to time spent, expenses, work done, and put your records into evidence. Here is a link to a helpful post on what you need to prove to get that award of attorney’s fees.
- If you feel that the chancellor has not made sufficient findings, file a Rule 59 motion and ask the judge to supplement his findings. Better yet, provide him or her with proposed findings of fact and conclusions of law on the point that address every applicable McKee factor.
When you have worked hard on a case, you want and deserve to be paid. Sometimes your client won’t be able to pay you, and your only realistic option is to look to the other party. Don’t leave it to chance. Make a bulletproof record.
August 3, 2011 § 8 Comments
You have tried a simply sterling case, and now you are ready to cash in on the pot at the end of the rainbow: an award of attorney’s fees against the opposing party. But the judge says, “no attorney’s fees for you.” Where did you go wrong?
In the case of Evans v. Evans, handed down by the COA on April 26, 2011, you can find a pretty concise statement of the law that you need to know when pursuing a claim for attorney’s fees. The decision is unpublished, and can not be cited itself for authority, but Judge Maxwell did such a good job writing an exposition on the subject that I wanted to bring it to your attention. Here are some excerpts from the opinion, paraphrased and supplemented with a couple of notes of mine:
The matter of awarding attorney’s fees is largely entrusted to the sound discretion of the chancellor. McKee v. McKee, 418 So.2d 764, 767 (Miss. 1982). The appellate courts are reluctant to disturb a chancellor’s discretionary determination whether to award attorney’s fees or the amount of any award. Smith v. Smith, 614 So.2d 394, 398 (Miss. 1993). Except in contempt actions, attorney’s fees may only be awarded to a party who has shown an inability to pay his or her own fees. Voda v. Voda, 731 So.2d 1152, 1157 (Miss. 1999); Pacheco v. Pacheco, 770 So.2d 1007, 1012 (Miss. App. 2000).
When awarding attorney’s fees, chancellors must make specific findings regarding the recipient’s ability to pay. Hankins v. Hankins, 729 So.2d 1283, 1286 (Miss. 1999). And chancellors should apply the McKee factors in determining the proper amount of the award:
(1) A sum sufficient to secure a competent attorney; (2) the skill and standing of the attorney employed; (3) the nature of the case and novelty and difficulty of the questions at issue; (4) the degree of responsibility involved in the management of the cause; (5) the time and labor required; (6) the usual and customary charge in the community; (7) and the preclusion of other employment by the attorney due to the acceptance of the case. McKee, 418 So.2d at 767 (internal citation omitted).
Our supreme court has held that “[a] trial court abuses its discretion by awarding attorney’s fees without first finding that the party is unable to pay the fees.” Hankins, 729 So.2d at 1286.
The chancellor must also consider the paying party’s financial situation. Where neither party is able to pay more than his or her own fees, an award of attorney’s fees is inappropriate. Sarver v. Sarver, 687 So.2d 749, 755 (Miss. 1997), overruled on other grounds by Pearson v. Pearson, 761 So.2d 157 (Miss. 2000); see also Bell, at § 12.01 [b] (explaining that the chancellor should consider the parties’ financial disparity).
In addition, an award of attorney’s fees must be supported by sufficient evidence for an accurate assessment of fees. See McKee, 418 So.2d at 767 (reversing and remanding award based on insufficient evidence); Powell v. Powell, 644 So.2d 269, 276 (Miss.1994) (same). An itemized bill is not always required. Estimates may support an award in some circumstances if the estimates clearly explain “the method used in approximating the hours consumed on a case.” McKee, 418 So.2d at 767; see also Watkins v. Watkins, 748 So.2d 808, 813 (Miss. App. 1999). A chancellor’s failure to apply the McKee factors is not necessarily itself reversible error, see Miley v. Daniel, 37 So.3d 84, 87 (Miss. App. 2009), the proof must at least support an accurate assessment of fees under the McKee criteria. Bumgarner v. Bumgarner, 475 So.2d 455, 456 (Miss. 1985).
Attorney’s fees are properly assessed against a party found to be in contempt. Mount v. Mount, 624 So.2d 1001, 1005 (Miss. 1993). A finding of inability to pay is not necessary to an award of attorney’s fees in a contempt action. Bounds v. Bounds, 935 So.2d 407, 411 (Miss. App. 2006).
As for parentage cases, MCA § 93-9-45 provides that the “cost of the legal services of the attorney representing the petitioner … shall be taxed against the defendant.”
If you expect to be successful on a claim for attorney’s fees, you have to prove:
- That your client is entitled to an award. In contempt and parentage cases, the adjuducation of contempt or parentage will do the trick. In all other cases, you will have to show inability of your client to pay;
- Each of the McKee factors;
- Quantification of the fees by showing the time and effort expended;
- That the party you want to pay has the ability to pay.
Too many times I see attorneys put on a mere modicum of proof on the issue of getting paid. That’s a shame. Your client would appreciate it to no end if you found your pot of gold at the end of the other party’s rainbow.
October 13, 2010 § 7 Comments
You would think that the award of an attorney’s fee would get special attention from both the client and the attorney. After all, the client is looking for some help with the financial burden, and the lawyer representing him is looking for some assurance that she will be paid. And one of the best ways to impress your client favorably is to hang your fees on the opposing party.
In many cases, though, I find that the lawyer takes a sort of slap-dash approach. Sometimes the lawyer confers with the other side and reaches a low-ball stipulation about a reasonable fee. Or the lawyer takes the witness stand (one of the very few occasions when an advocate is allowed to testify per Rule 3.7 of the Rules of Professional Conduct) and offers some general testimony in vague terms about a ballpark figure. Or the lawyer simply asks his client what she paid him and apparently thinks that will suffice.
Proving a reasonable attorney’s fee is actually a fairly simple process, but you need to cover all the points to make your client’s claim airtight. Before we talk about what you need to prove at trial, though, be sure you’ve done what you need to do before trial to lay a foundation for your claim:
- Record your time as you move toward trial, and have your time record printed neatly. You will need it for your testimony in court.
- Be sure there is a prayer for a reasonable attorney’s fee in your pleading. You are asking the court to take your opponent’s money, and that requires due process.
Now that the preliminaries are in order, here are the five steps to prove attorney’s fees:
- Be sure to have your client testify about his or her ability to pay. In divorce cases, ability to pay is the most critical consideration, and if you do not establish your client’s inability to pay, she will not be eligible for an award of an attorney’s fee. Deen v. Deen, 856 So.2d 736, 739 (Miss. App. 2003); Bates v. Bates, 755 So.2d 478, 482 (Miss. App. 1998). Even in a contempt case, where inability to pay is not required, you are wise to offer testimony about the financial effect of the contempt and the resulting attorney’s fees on your client, since an award of an attorney’s fee is not mandatory in contempt. Suess v. Suess, 718 So.2d 1126, 1129 (Miss. App. 1998). Remember that the ethical rules do not allow you as an advocate to testify about the contested merits of the case. If you are going to prove your client’s inability to pay, you will need your client’s testimony.
- Testify yourself about the prevailing rate charged by attorneys in the district. The award must be reasonable, and one of the key touchstones for reasonability is the usual and customary rate charged by attorneys in the district. But the prevailing rate is not binding on the court. The judge may award a fee at a greater or lesser rate if the circumstances warrant it. If you charged a rate different from the prevailing rate in the district, what rate did you charge and why? And if your rate exceeded the prevailing rate, what is your justification for doing so? Make your record.
- Put into evidence an itemization of the time you devoted to the case. Here’s where that itemized statement comes in. Identify it and ask that it be admitted into evidence. Before you do, though ask yourself: Is it credible? Does it look like a genuine fee statement that one would tender to a client for payment, or does it look like something you scratched together 5 minutes before setting foot in the courtroom? Are the times reported credible? Does it reflect charges for “one competent lawyer,” or are there charges included for others? Before you ever get to trial, pore over your statement and subject it to your own cross examination.
- Be sure to capture all the time in the case. Ask the court to take judicial notice of the time spent to that point in the trial, and estimate for the record how much more time will be needed to complete the trial. Estimate also the total number of hours that will be needed for any post-trial matters, such as drafting a judgment or preparing proposed findings of fact and conclusions of law.
- Address each and every one of the McKee factors. You can read more about the McKee factors here. The McKee factors govern the amount of the award, but as a practical matter, if you don’t prove them there is nothing in the record to determine what is reasonable, which means that a reward of zero is most likely. No matter how badly you and your client want that attorney’s fee award, if you don’t include proof of the McKee factors, you likely won’t get it.
July 9, 2010 § 20 Comments
A practice tip about trial factors is here.
If you are expecting an award of attorney’s fees in your case, you must put on proof of the quantity of work that was done to earn the fees, as well as the amount of the fees. In the case of McKee v. McKee, 418 So.2d 764, 767 (Miss. 1982), the Mississippi Supreme Court set out the following factors that must be considered by the court in determining the proper amount of attorney’s fees to be awarded:
- The parties’ relative financial ability;
- The skill and standing of the attorney;
- The novelty and difficulty of the issues;
- The degree of responsibility involved in management of the case;
- Time and labor;
- The usual and customary charge in the community;
- Preclusion of other employment as a result of accepting the case.
If McKee factor evidence is not submitted, the court may deny your prayer for attorney’s fee, and if the trial court does award it, it may be thrown out on appeal.
In a divorce case, an award of an attorney’s fee is properly made only to a party who proves inability to pay and there is proof of the McKee factors. In Turner v. Turner, 744 So.2d 332, 338 (Miss. App. 1999), the trial court’s award of attorney’s fees was reversed where no itemized account was introduced into evidence, and the only testimony of fees was that the fee charged was $1,500 and that the party seeking the award was unable to pay it.
In other cases, an award of attorney’s fees may be made regardless of ability to pay where the party is found in contempt, or is found guilty of dilatory behavior or behavior that causes the other party undue expense, or for frivolous litigation, or for unfounded allegations of domestic abuse. In such cases, the proof of attorney’s fees should be supported by proof of the McKee factors.