Adcock v. Norman
| Decision Date | 22 March 2005 |
| Docket Number | No. 2002-CA-02027-COA.,2002-CA-02027-COA. |
| Citation | 918 So.2d 747 |
| Parties | Pamala Ann Standish ADCOCK, Appellant, v. Christopher Alan VAN NORMAN, Appellee. |
| Court | Mississippi Court of Appeals |
Patricia Peterson Smith, attorney for appellant.
Sarah A. Hodnett, attorney for appellee.
Before BRIDGES, P.J., GRIFFIS and ISHEE, JJ.
GRIFFIS, J., for the Court.
¶ 1. Pamala Ann Standish Adcock ("Pamala") and Christopher Alan Van Norman ("Christopher") appeal a chancellor's judgment on a petition for custody and a petition for paternity. The chancellor granted Pamala permanent custody of the children, denied Christopher's petition for custody and denied Pamala's request for attorney's fees.
¶ 2. On appeal, Pamala asserts the following errors: (1) the chancellor erred in denying attorney's fees; (2) the chancellor erred in denying attorney's fees and sanctions under the Mississippi Litigation Accountability Act; (3) the chancellor used an erroneous standard to determine custody; and (4) the chancellor demonstrated a clear bias against Pamala. Christopher cross-appeals on the issue of the standard used to by the chancellor to determine custody. We affirm in part and reverse and remand in part for further proceedings consistent with this opinion.
FACTS
¶ 3. Pamala and Christopher met in December of 1999. Pamala was pregnant with twins. Christopher testified that Pamala informed him of the pregnancy on December 31, 1999, which was several weeks into the relationship. They agreed that their sexual relationship began on December 31, 1999.
¶ 4. On January 3, 2000, Christopher accompanied Pamala on a doctor's appointment. They viewed a sonogram, and they saw the twins. Christopher promised to support Pamala, and they continued their relationship throughout her pregnancy.
¶ 5. Pamala and Christopher never married. The twins, Shane Anthony Van Norman and Hopelynn Nicole Van Norman, were born premature on May 3, 2000. On May 4, 2000, Pamala and Christopher both signed a voluntary acknowledgment of paternity. The twins' birth certificates, dated August 27, 2001, listed Christopher as their natural father. Pamala and Christopher lived together and both cared for the children together until their relationship ended in August of 2001, and they separated.
¶ 6. On September 6, 2001, Christopher filed a petition for custody of the children. Pamala answered and claimed that Christopher was not their natural father. Pamala asked the court to order a paternity test and award attorney's fee and damages for invasion of privacy.
¶ 7. On October 24, 2001, the chancellor entered an order that granted temporary custody of the twins to Christopher and required that Pamala, Christopher and the children submit to a "blood paternity test."
¶ 8. Pamala filed a motion to dismiss Christopher's petition for custody. She argued that Christopher lacked standing to continue his pursuit of custody since he was not the twins' biological father. On March 18, 2002, the chancellor ruled that, by listing Christopher as the children's father on both the acknowledgment of paternity and the birth certificate, Christopher had the necessary standing to support his petition for custody. The chancellor again ordered a blood test to confirm paternity.
¶ 9. The blood tests were conducted. The results of the blood tests confirmed that Christopher was not the biological father of the twins.
¶ 10. After hearing evidence in this case on December 20, 2001, March 3, 2003, and March 17, 2003, the chancellor entered her memorandum opinion and final judgment on March 25, 2003. The chancellor awarded permanent care, custody, and control of the children to Pamala, denied Christopher's petition for custody and denied Pamala's request for attorney's fees and sanctions. Both Pamala and Christopher appeal.
STANDARD OF REVIEW
¶ 11. This Court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his or her discretion, was manifestly wrong, clearly erroneous, or applied an erroneous legal standard. Sanderson v. Sanderson, 824 So.2d 623, 625-26(¶ 8) (Miss.2002).
ANALYSIS
¶ 12. The determination of attorney's fees is largely within the sound discretion of the chancellor. Martin v. Martin, 566 So.2d 704, 707 (Miss.1990). We follow the general rule that where "a party is financially able to pay her attorney, an award of attorney's fees is not appropriate." Martin, 566 So.2d at 707. An award of attorney's fees is governed by the factors established in McKee v. McKee, 418 So.2d 764, 767 (Miss.1982): (1) the relative financial ability of the parties, (2) the skill and standing of the attorney employed, (3) 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, (4) the time and labor required, (5) the usual and customary charge in the community, and (6) the preclusion of other employment by the attorney due to the acceptance of the case. Bruce v. Bruce, 687 So.2d 1199, 1203 (Miss.1996)(citing McKee v. McKee, 418 So.2d 764, 767 (Miss.1982)).
¶ 13. In her consideration, the chancellor only looked at the evidence to prove the fees incurred in preparing and arguing the motion to dismiss. Before they argued the motion to dismiss, the parties agreed that no evidence admitted in the previous hearings would be considered. The chancellor found that this agreement extended to any evidence regarding the issue of attorney's fees. Therefore, no evidence from the previous custody hearings about Pamala's financial status of Pamala was considered. Pamala argues that the chancellor erred in failing to consider her previous declaration of her indigence, in her order dated March 25, 2003, and her reliance on food stamps and Medicaid. Based upon the totality of the evidence, she argues that her inability to pay her attorney's fees was established.
¶ 14. We have held that the party seeking attorney's fees is charged with the burden of proving inability to pay. Riley v. Riley, 846 So.2d 282, 287-88(¶ 23)(Miss.Ct.App.2003). Pamala did not meet this burden of proof. By the agreement of the parties, the motion to dismiss limited the chancellor's consideration to only the evidence pertaining to the motion to dismiss hearing. Pamala neither proved that she was unable to pay attorney fees nor presented evidence of any of the McKee factors. Without evidence showing Pamala's inability to pay, the chancellor's denial of Pamala's request for attorney's fees was not an abuse of discretion. This assignment of error is without merit.
¶ 15. Next, Pamala argues that attorney's fees and sanctions were warranted under the Mississippi Litigation Accountability Act. Pamala maintains that once the paternity test determined that Christopher was not the natural father of the children, Christopher's subsequent contention that he had rights as their father constituted misrepresentations and false filings. She claims that Christopher's continuous pursuit of custody after the paternity determination constituted a frivolous claim worthy of sanctions under the Act.
¶ 16. The relevant portion of the Mississippi Litigation Accountability Act reads:
Except as otherwise provided in this chapter, in any civil action commenced or appealed in any court of record in this state, the court shall award, as part of its judgment and in addition to any other costs otherwise assessed, reasonable attorney's fees and costs against any party or attorney if the court, upon motion of any party or on its own motion, finds that an attorney or party brought an action, or asserted any claim or defense, that is without substantial justification, or that the action, or any claim or defense asserted, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceedings by other improper conduct including, but not limited to, abuse of discovery procedures available under the Mississippi Rules of Civil Procedure.
Miss.Code Ann. § 11-55-5(1)(Rev.2002). Thus, under this statute, the court shall award attorney fees and costs against a party who brings a claim without "substantial justification" or "unnecessarily expanded the proceedings." Id.
¶ 17. A claim is without "substantial justification" when it is "frivolous . . . as determined by the court." Miss.Code Ann. § 11-55-3(a)(Rev.2002). To determine whether a claim is frivolous pursuant to the statute, we examine the definition of "frivolous" found in Rule 11 of the Mississippi Rules of Civil Procedure. Norton v. Norton, 742 So.2d 126, 132(¶ 27)(Miss.1999); Leaf River Forest Products, Inc. v. Deakle, 661 So.2d 188, 197 (Miss.1995). Under Rule 11, a claim is frivolous "only when, objectively speaking, the pleader or movant has no hope of success." Norton, 742 So.2d at 132(¶ 27); Stevens v. Lake, 615 So.2d 1177, 1184 (Miss.1993)(quoting Tricon Metals & Services, Inc. v. Topp, 537 So.2d 1331, 1335 (Miss.1989)); Smith v. Malouf, 597 So.2d 1299, 1303 (Miss.1992)(applying Rule 11 definition to Litigation Accountability Act context).
¶ 18. Christopher's claim was not frivolous. Based on the evidence before this Court, Christopher was and remains the legal father of the children. Thus, his petition for custody is justified.
¶ 19. When the children were born, both Pamala and Christopher knew that Christopher was not the biological father of the twins. Both Pamala and Christopher voluntarily signed the acknowledgment of paternity and had Christopher listed as the twins' father on their birth certificates. This act had legal significance. Indeed, under Mississippi law, Christopher became the children's legal father and is...
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