Holloway v. Holloway, 2002-CA-01762-COA.

• Decision Date: 04 November 2003
• Docket Number: No. 2002-CA-01762-COA.,2002-CA-01762-COA.
• Parties: Phyllis D. HOLLOWAY, Appellant, v. Jerrell Lavon HOLLOWAY, Appellee.
• Court: Mississippi Court of Appeals

865 So.2d 382

Phyllis D. HOLLOWAY, Appellant, v. Jerrell Lavon HOLLOWAY, Appellee.

No. 2002-CA-01762-COA.

Court of Appeals of Mississippi.

November 4, 2003.

Rehearing Denied February 10, 2004.

Dan H. Fairly, Jackson, attorney for appellant.

William R. Wright, Jackson, W. Benton Gregg, attorneys for appellee.

EN BANC.

LEE, J., for the Court.

PROCEDURAL HISTORY AND FACTS

¶ 1. Phyllis D. Holloway and Jerrell Lavon Holloway were divorced on December 15, 1998, in the Hinds County Chancery Court. Under terms of the divorce, Jerrell was required to pay Phyllis, among other things, lump sum alimony in the amount of $6,000,000, to be paid in installments of $500,000 per year for twelve consecutive years. The payments were due January 10 of each year, to commence January 10, 2000. Jerrell failed to make the payment due January 10, 2002. Phyllis filed a motion for contempt on January 16, 2002. Jerrell remitted a partial payment in the amount of $125,000 on January 25, 2002, with the remaining balance of $375,000 paid on May 25, 2002. After the July 16, 2002 hearing, the chancellor awarded Phyllis interest in the amount of $11,917.60 and attorney's fees in the amount of $1,500. Phyllis now appeals to this Court, asserting that the chancellor abused her discretion in awarding Phyllis attorney's fees of only $1,500.

DISCUSSION

¶ 2. The only issue on appeal is whether the chancellor abused her discretion in awarding Phyllis attorney's fees of only $1,500. An award of attorney's fees is generally left to the discretion of the chancellor. Gray v. Pearson, 797 So.2d 387(¶34) (Miss.Ct.App.2001). Furthermore, the chancellor's findings on the issue of attorney's fees will not be disturbed unless manifestly wrong. Cumberland v. Cumberland, 564 So.2d 839, 844 (Miss. 1990).

¶ 3. In the final judgment, the chancellor found that Jerrell purged himself of contempt by paying in full the installment payment on May 25, 2002. The chancellor also found that Phyllis was entitled to reimbursement of her attorney's fees "incurred in the prosecution of this Motion for Contempt Citation and therefore awards her the sum of $1,500." In her brief, Phyllis relies upon Douglas v. Douglas, 766 So.2d 68 (Miss.Ct.App.2000), in which this Court stated:

We should not be heard to say that a party can clearly disregard a valid court order until contempt proceedings are filed against the offending party and just prior to trial gain exoneration by full compliance and escape any finding of contempt and charge of appropriate attorney's fees. Attorneys and parties should not lull themselves into the false sense of security that because a divorced party who stands in contempt of a valid decree cures the contumacious conduct after an attorney is hired and a petition of contempt is filed but prior to the hearing, is insulated from an award of attorney's fees.

Id. at (¶15). While we adhere to this statement, we must reinforce that the chancellor did not specifically find Jerrell to be in contempt. However, the chancellor did determine that Phyllis should be awarded some of her attorney's fees in pursuing the contempt motion. We cannot find that the chancellor abused her discretion or was manifestly wrong in awarding Phyllis attorney's fees in the amount of $1500.

¶ 4. THE JUDGMENT OF THE HINDS COUNTY CHANCERY COURT IS AFFIRMED. COSTS OF THIS APPEAL ARE TAXED TO THE APPELLANT.

McMILLIN, C.J., KING, P.J., THOMAS, IRVING AND MYERS, JJ., CONCUR. GRIFFIS, J., DISSENTS WITH A SEPARATE WRITTEN OPINION JOINED BY SOUTHWICK, P.J., BRIDGES AND CHANDLER, JJ.

GRIFFIS, J., DISSENTING:

¶ 5. I am of the opinion that the chancellor abused her discretion in the amount of attorney's fees and expenses awarded. Phyllis was entitled to an award of attorney's fees. She introduced sufficient evidence to satisfy the necessary factors required by McKee v. McKee, 418 So.2d 764 (Miss.1982). Jerrell failed to rebut her evidence or establish that the fees requested were unreasonable. Therefore, I disagree with the majority's finding that the chancellor's award of $1,500 in attorney's fees was proper and sufficient. I would reverse and render a judgment in favor of Phyllis for the full amount requested, together with an award of attorney's fees incurred in this appeal.

¶ 6. To award attorney's fees in a contempt matter, trial courts must first consider whether there was a contempt or willful violation of the court's order. Purvis v. Purvis, 657 So.2d 794, 796-97 (Miss. 1994). If so, the chancellor must determine what relief is necessary to remedy the violation. Id.

¶ 7. Attorney's fees are properly awarded if a party is found in contempt. Rogers v. Rogers, 662 So.2d 1111, 1116 (Miss. 1995). We have also held that, where a court does not find one party in contempt, attorney's fees are also properly awarded if the party requesting contempt "gains enforcement of a previous support order." Russell v. Russell, 724 So.2d 1061, 1066(¶24) (Miss.Ct.App.1998).

¶ 8. Here, the majority fails to find Jerrell in contempt. The majority affirms an award of attorney's fees but opines that "we must reinforce that the chancellor did not specifically find Jerrell to be in contempt." Yet, the majority fails to state any legal basis to sustain the award. The language used in the chancellor's judgment simply disputes this conclusion. There was a finding by the chancellor that Jerrell was in contempt, and this was the basis for the award.

¶ 9. Jerrell and Phyllis agreed to a judgment of divorce on the grounds of irreconcilable differences. The final judgment incorporated a property settlement agreement, wherein Jerrell voluntarily and affirmatively obligated himself to tender payment in the sum of $500,000 to Phyllis on or before January 10, 2002. Jerrell did not make the payment in a timely manner. In fact, before the due date of the payment, Jerrell advised Phyllis that he was not in a "cash position" to make the payment. Subsequently, after the motion to compel was filed, Jerrell made the payment in two separate installments.

¶ 10. There is no dispute that Jerrell was in willful violation of the court's judgment. Phyllis had no alternative but to pursue the court's enforcement of the judgment and to compel Jerrell's immediate compliance. The chancellor's judgment found Jerrell in contempt when she held:

The court finds that the defendant fully purged himself of contempt of court by paying in full the installment payment of lump sum alimony on May 25, 2002.

The conclusion that one is in "contempt" is vital to and inherent in the chancellor's finding that one has "purged" (or relieved) himself of contempt.

¶ 11. A citation for contempt is determined upon the facts of each case and is a matter for the trier of fact. Milam v. Milam, 509 So.2d 864, 866 (Miss.1987). A citation of contempt is proper when "the contemner has willfully and deliberately ignored the order or the court." Bredemeier v. Jackson, 689 So.2d 770, 777 (Miss. 1997).

¶ 12. Phyllis eventually received her payment, albeit several months late, and only asked the chancellor to make her whole for Jerrell's contumacious conduct. Phyllis presented substantial credible evidence to support the finding that Jerrell had willfully and deliberately ignored the court's order. Jerrell offered no defense or evidence to excuse his failure to make the payment. The chancellor may have used imprecise language in her judgment. However, it is readily apparent in the judgment that the chancellor found Jerrell in contempt.

¶ 13. The majority and I both agree that an award of attorney's fees and expenses was appropriate. My dissent, however, is based on the amount of the award. The majority concludes that the chancellor was within her discretion awarding attorney's fees and expenses of $1,500. There is absolutely no evidence to support this award. I am mindful that there are a number of cases that tend to relax the necessity of strict adherence to the McKee factors. See Mitchell v. Mitchell, 823 So.2d 568, 573

(¶23) (Miss.Ct.App.2002); Wells v. Wells, 800 So.2d 1239, 1246(¶18) (Miss.Ct.App.2001). However, where a party presents substantial, credible and uncontradicted evidence that satisfies the McKee factors, the chancellor may not simply disregard the actual amount of fees and expenses incurred.

¶ 14. At the hearing, Phyllis and her attorney, Dan Fairly, testified. The evidence consisted of the basis for employment of an attorney and Fairly's statements for legal services rendered, totaling $9,948.12 in fees and expenses. Jerrell's attorney cross-examined Fairly about only seven entries, implying that they were for services unrelated to the motion for contempt. The amount of the fees that were questioned totaled $1,813. Fairly testified that the time spent on the questioned entries were related to the prosecution of the motion. Jerrell offered no evidence to rebut Fairly's testimony on the questioned entries. The chancellor's order stated no reason or basis for the amount of the award.

¶ 15. The award of attorney's fees is entrusted to the sound discretion of the trial court. Mizell v. Mizell, 708 So.2d 55, 65(¶56) (Miss.1998). "We are reluctant to disturb a chancellor's discretionary determination whether or not to award attorney fees and the amount of award." Smith v. Smith, 614 So.2d 394, 398 (Miss.1993). However, the chancellor's discretion is not absolute or without limitation in such award. Stargell v. White, 234 Miss. 601, 609, 107 So.2d 125, 127 (1958).

¶ 16. In McKee, the supreme court established certain factors that are to be considered by a chancellor in the award of attorney's fees.

In determining an appropriate amount of attorneys fees, a sum sufficient to secure one competent attorney is the criterion by which we are directed. The fee depends on consideration of, in addition to the relative financial ability of the parties, the skill and standing of the attorney employed, the nature of the case and novelty and difficulty

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