Mabus v. Mabus

• Decision Date: 03 February 2005
• Docket Number: No. 2003-CA-01728-SCT.,2003-CA-01728-SCT.
• Citation: 910 So.2d 486
• Parties: Julia Gates Hines MABUS v. Raymond Edwin MABUS, Jr.
• Court: Mississippi Supreme Court

Page 486

910 So.2d 486

Julia Gates Hines MABUS v. Raymond Edwin MABUS, Jr.

No. 2003-CA-01728-SCT.

Supreme Court of Mississippi.

February 3, 2005.

M. Judith Barnett, attorney for appellant.

Richard C. Roberts, III, Robert W. King, Jackson, attorneys for appellee.

EN BANC.

RANDOLPH, Justice, for the Court.

¶ 1. Julia Gates Hines Mabus ("Julie") and Raymond Edwin Mabus, Jr. ("Ray") were divorced by judgment of the Chancery Court of the First Judicial District of Hinds County, Mississippi. As part of the final judgment of divorce, Ray and Julie were granted joint physical custody of the children born to their union, with sole legal custody being vested in Ray.

¶ 2. On February 28, 2002, the chancery court entered an agreed order which modified the schedule of physical custody for the parties. The agreed order was very detailed, setting out specific times and dates for the beginning and end of each visitation period therein. Nevertheless, Julie decided to take the children on a trip to Maine and informed Ray that she would not comply with the court's order.

¶ 3. After Julie's notification to Ray, Ray requested attorneys Robert W. King (who testified at the hearing that he was seeking to phase out of representation of Ray) and Richard C. Roberts, III, to file a petition for contempt. Both King and Roberts provided legal services regarding the contempt action. In consultation with their client and others, King and Roberts, at the direction of their client, drafted and filed a petition for contempt in the chancery court. A hearing was held on June 11, 2003, which was attended by King and Julie's attorney, M. Judith Barnett. An agreed order was entered on that date, which decreed the following:

1. The Court has jurisdiction of the parties and the subject matter.

2. That Julie Gates Hines will have the children of this marriage. . . available for Raymond Edwin Mabus, Jr., at the times contemplated for his weekend and summer visitation during the month of June, 2003.

3. Until such times as the visitation orders have been violated, there is no contempt; however, the Court will reserve the right to reconvene this matter to determine if there is a contempt after the visitation periods from 6:00 p.m., Thursday, June 12, 2003, to 6:00 p.m., Sunday, June 15, 2003, which the parties agree will be heard on a Rule 5 Notice of Hearing without further process.

¶ 4. When Julie failed to return the children as required by the February order and agreed upon at the June 11, 2003 hearing, a second hearing was noticed for and held on June 23, 2003. At that hearing, Julie put on only a cursory defense, and the court determined that Julie violated the order; therefore, she was adjudicated to be in contempt. The chancellor ordered Julie to be incarcerated in the Hinds County Detention Facility for a period of five days, with said incarceration to be suspended pending her future compliance with court orders, and imposed a $500.00 fine against Julie for her willful and contumacious contempt. At the conclusion of the hearing, King and Roberts submitted affidavits, which included their time records, and were cross-examined by Julie's counsel and responded to questions of the court. After considering their affidavits and live testimony, the chancellor awarded Ray attorney's fees in the amount of $13,547.50.¹

¶ 5. Following the judgment of the chancery court, Julie appeals and raises the following issue:

I. The lower court erred in awarding the Appellee attorney fees in the full amount charged by Richard C. Roberts, III, and Robert W. King including, but not limited to, charges incurred prior to the actual filing of the petition for citation of contempt and charges incurred up to the time an actual act of contempt occurred.

DISCUSSION

¶ 6. In the absence of manifest abuse of discretion, coupled with the presence of substantial credible evidence, we should not disturb the learned chancellor's decision substituting our judgment for that of the chancellor. Holloman v. Holloman, 691 So.2d 897, 898 (Miss.1996) (collecting authorities).

¶ 7. The trial court is the appropriate entity to award attorney's fees and costs. Miss. Power & Light Co. v. Cook, 832 So.2d 474, 478 (Miss.2002). "Unless the chancellor is manifestly wrong, his decision regarding attorney fees will not be disturbed on appeal." Bredemeier v. Jackson, 689 So.2d 770, 778 (Miss.1997). This Court has stated:

It is well settled in this State that what constitutes a reasonable attorney's fee rests within the sound discretion of the trial court and any testimony by attorneys with respect to such fees is purely advisory and not binding on the trial court. We will not reverse the trial court on the question of attorney's fees unless there is a manifest abuse of discretion in making the allowance. . . .

Mauck v. Columbus Hotel Co., 741 So.2d 259, 269 (Miss.1999) (emphasis added). "The word `manifest,' as defined in this context, means `unmistakable, clear, plain, or indisputable.'" Mosley v. Atterberry, 819 So.2d 1268, 1272 (Miss.2002). "In appeals from Chancery Court, our scope of review is limited. We will not reverse a Chancellor's findings of fact where they are supported by substantial credible evidence in the record." Hammett v. Woods, 602 So.2d 825, 827 (Miss.1992) (citing Clark v. Myrick, 523 So.2d 79, 80 (Miss.1988)) (emphasis added). "`[W]e, as an appellate court, will affirm the decree if the record shows any ground upon which the decision may be justified. . . . We will not arbitrarily substitute our judgment for that of the chancellor who is in the best position to evaluate all factors. . . .'" Tucker v. Tucker, 453 So.2d 1294, 1296 (Miss.1984) (quoting Yates v. Yates, 284 So.2d 46, 47 (Miss.1973)). "This Court will not disturb the chancellor's opinion when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied." Holloman, 691 So.2d at 898 (collecting authorities) (emphasis added). In order for this Court to say that the chancellor has abused his discretion, there must be insufficient evidence to support his conclusions. Tucker, 453 So.2d at 1296-97.

¶ 8. "Where a party's intentional misconduct causes the opposing party to expend time and money needlessly, then attorney fees and expenses should be awarded to the wronged party." State v. Blenden, 748 So.2d 77, 87 (Miss.1999).

¶ 9. In the case sub judice, the chancellor relied on substantial credible evidence in the record regarding attorney's fees. Attached to the affidavit of Richard C. Roberts, III, was a detailed itemized billing statement outlining how he arrived at his fee. Additionally, there was an affidavit of Robert W. King with a detailed itemized billing statement attached outlining how he arrived at his fee.

¶ 10. The reasonableness of attorney's fees are controlled by the applicable Mississippi Rule of Professional Conduct 1.5 factors and the McKee² factors.

¶ 11. Both affidavits contain detailed information relevant to the McKee factors and the relevant Mississippi Rule of Professional Conduct 1.5 factors, including educational background of the attorneys, their years of experience practicing law, their experience in domestic relations matters, their regularly hourly rate, the rates actually charged to Ray Mabus, the manner in which they recorded their time, and the usual and customary rates of attorneys with similar experience in the Jackson area.

¶ 12. Both Roberts and King took the stand and subjected themselves to cross-examination by Julie's counsel regarding their fee. Additionally, the learned chancellor further examined Roberts and King regarding their fees, and both testified that the services shown on the statements were reasonable and necessary to present Ray's claim for contempt. Of equal import, Julie offered no proof to impeach or rebut the testimony of Roberts and King. The following dialogue ensued between the court and Roberts:

BY THE COURT: I have one question Mr. Roberts. I haven't seen the bill. Did you do anything in preparation for this case that you did not honestly and truly believe as a practicing attorney of 27 years experience in the Hinds County area that was not reasonable and necessary to prosecute this claim —

BY MR. ROBERTS: No sir, everything —

BY THE COURT: — in the interest of your client.

BY MR. ROBERTS: — everything on this bill was reasonable and necessary in my view to present Mr. Mabus' case the way that I felt like it should be presented. Now, this does not include other work performed for Mr. Mabus during this period of time that did not relate to the petition for contempt. This relates to the petition and — well, it actually predates. It starts with the time that I was required to spend to represent him with regard to the actions of Ms. Hines in violation of the court order.

The following dialogue ensued between the court and King:

BY THE COURT: Mr. King, I'll start out the same question with you. In your affidavit and your itemization is there anything there — and I don't know how many years you've been practicing in the Bar, but I do know it's a few in excess of 27. Is there anything that you did in preparation in conjunction for this petition for contempt that you believe not to be reasonable and necessary in the representation of your client? And then I'm going to ask you a different spin on that. Is there anything in your bill that as a practicing attorney that you believe would be duplicative of the things that Mr. Roberts did?

BY MR. KING: The answer is no.

BY THE COURT: To the duplicative part.

BY MR. KING: Yes, sir. I have not done anything on this case that I didn't feel needed to be done and that I had to do in order to get ready. The bill I've got was made up on June the 10th and as we were done there on an anticipatory contempt I prepared this bill on an anticipatory hearing and I charged for five hours estimated and...