Tidmore v. Tidmore, 2012–CA–00167–COA.

• Decision Date: 14 May 2013
• Docket Number: No. 2012–CA–00167–COA.,2012–CA–00167–COA.
• Citation: 114 So.3d 753
• Parties: Nicole Lee (Reid) TIDMORE, Appellant/Cross–Appellee v. Michael Timothy TIDMORE, Appellee/Cross–Appellant.
• Court: Mississippi Court of Appeals

114 So.3d 753

Nicole Lee (Reid) TIDMORE, Appellant/Cross–Appellee

v.Michael Timothy TIDMORE, Appellee/Cross–Appellant.

No. 2012–CA–00167–COA.

Court of Appeals of Mississippi.

May 14, 2013.

Charles E. Hodum, attorney for appellant.

Jerry Wesley Hisaw, Southaven, attorney for appellee.

EN BANC.

IRVING, P.J., for the Court:

¶ 1. Nicole Tidmore appeals the DeSoto County Chancery Court's award of attorney's fees to her former husband, Michael Tidmore. She raises one issue on appeal: whether the chancellor erred by entering a judgment against her for the full amount of Michael's attorney's fees. Michael cross-appeals, asserting two issues: (1) whether the chancellor erred in awarding sole legal and physical custody of the minor children to Nicole; and (2) whether the chancellor erred in awarding only standard visitation to him. Upon review, we affirm the awards of custody and visitation. However, we reverse the chancellor's award of attorney's fees to Michael and remand this case for a determination of the amount of attorney's fees that should be awarded for the contempt proceedings and the unsubstantiated-allegations-of-abuse proceedings.

FACTS

¶ 2. Michael and Nicole were married on August 21, 2003. On October 26, 2004, the couple welcomed twin daughters.¹ The parties separated on March 16, 2006, and a divorce was granted on the ground of irreconcilable differences on June 12, 2008. The parties were awarded joint physical and legal custody of the twins, with each having custody of the children for a one-week period, beginning Monday at 5:00 p.m. and ending on the following Monday at 5:00 p.m. Further, whichever party did not have custody during the week was entitled to extended visitation from Wednesday at 5:00 p.m. until the following Friday morning when the children were dropped off at school.

¶ 3. On July 26, 2010, Michael filed a petition for contempt, modification of custody, and temporary relief. Michael alleged that there had been a material change in circumstances since the entry of the last custody order, and that it would be in the children's best interests for him to be awarded sole physical and legal custody, with visitation to Nicole. Michael also alleged that Nicole was in contempt for: (1) failing to exchange information concerning the health, education, and welfare of the children; (2) failing to pay her portion of medical bills and health insurance for the children; and (3) filing the children's daycare expenses on her tax return when Michael had actually paid such expenses.

¶ 4. On November 16, 2010, Nicole filed an answer and counter-petition to modify custody, visitation, and child support; to appoint a guardian ad litem (GAL); and to cite Michael for contempt. Nicole alleged that there had been a material change in circumstances since the entry of the last custody order, and that it would be in the children's best interests for her to be awarded sole physical and legal custody, with visitation to Michael. Nicole also made allegations of abuse ² against Michael and requested that the court appoint a GAL to investigate. Finally, Nicole alleged that Michael was in contempt for: (1) failing to pay insurance premiums for the children; and (2) claiming one of the girls as a dependent on his tax return.

¶ 5. On November 19, 2010, Michael filed a motion to appoint a GAL in response to Nicole's allegations of abuse. On December 1, 2010, the chancellor entered an order of continuance and a stay of proceedings pending the Mississippi Department of Human Services (DHS) investigation. The chancellor also appointed Kimberly Jones as the GAL and ordered Nicole to submit an outline of facts detailing the specific instances of alleged abuse.

¶ 6. On October 12, 2011, after a full trial, the chancellor entered a final judgment granting Nicole sole physical and legal custody of the children. Michael was awarded visitation every other weekend—the first and third weekends of each month—from Friday at 6:00 p.m. until Sunday at 6:00 p.m. He was also awarded six weeks of visitation during the summer, along with standard holiday visitation. The chancellor also ordered Nicole to pay Michael's attorney's fees and the GAL fees.

¶ 7. Nicole appealed the award of attorney's fees, and Michael cross-appealed the order granting Nicole sole custody and granting him only standard visitation.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 8. “Chancellors are afforded wide latitude in fashioning equitable remedies in domestic relations matters, and their decisions will not be reversed if the findings of fact are supported by substantial credible evidence[.]” Wilson v. Wilson, 79 So.3d 551, 560 (¶ 37) (Miss.Ct.App.2012) (quoting Henderson v. Henderson, 757 So.2d 285, 289 (¶ 19) (Miss.2000)). This Court “will not disturb a chancellor's factual findings unless the chancellor's decision was manifestly wrong or clearly erroneous, or the chancellor applied an improper legal standard.” Id. (citing Wallace v. Wallace, 12 So.3d 572, 575 (¶ 12) (Miss.Ct.App.2009)). “We do not substitute our ‘judgment for that of the chancellor, even if we disagree with the findings of fact and would arrive at a different conclusion.’ ” Id. (quoting Coggin v. Coggin, 837 So.2d 772, 774 (¶ 3) (Miss.Ct.App.2003)). “[W]hen reviewing a chancellor's interpretation and application of the law, our standard of review is de novo.” Id. (citing Tucker v. Prisock, 791 So.2d 190, 192 (¶ 10) (Miss.2001)).

I. Award of Attorney's Fees to Michael

¶ 9. “The matter of awarding attorney's fees is largely entrusted to the sound discretion of the chancellor.” Evans v. Evans, 75 So.3d 1083, 1089 (¶ 22) (Miss.Ct.App.2011) (citing McKee v. McKee, 418 So.2d 764, 767 (Miss.1982)). Therefore, “[w]e are reluctant to disturb a chancellor's discretionary determination whether to award attorney's fees or the amount of any award.” Id. (citing Smith v. Smith, 614 So.2d 394, 398 (Miss.1993)).

¶ 10. Nicole argues that the chancellor erred in awarding attorney's fees to Michael since some of the attorney's fees were incurred in pursuing a modification of custody. We note that “attorney's fees are not normally awarded in child custody modification actions.” Mixon v. Sharp, 853 So.2d 834, 841 (¶ 32) (Miss.Ct.App.2003). However, it is well established that “[a] chancellor may award attorney's fees as the result of a contempt action” in a domestic-relations case. Id. “One of the purposes for awarding attorney fees [in a contempt action] is to compensate the prevailing party for losses sustained by reason of the defendant's noncompliance.” Durr v. Durr, 912 So.2d 1033, 1040 (¶ 25) (Miss.Ct.App.2005). Thus, “[n]o showing as to the McKee factors is required” where there is a finding of contempt. Patterson v. Patterson, 20 So.3d 65, 73 (¶ 26) (Miss.Ct.App.2009).

¶ 11. Additionally, Mississippi Code Annotated section 93–5–23 (Supp.2012)requires the chancellor to impose attorney's fees for unsubstantiated allegations of abuse:

If after investigation by the Department of Human Services or final disposition by the youth court or family court allegations of child abuse are found to be without foundation, the chancery court shall order the alleging party to pay all court costs and reasonable attorney's fees incurred by the defending party in responding to such allegation.

(Emphasis added).

¶ 12. In this case, the chancellor ordered Nicole to pay Michael's attorney's fees and the GAL fees as follows:

With regard to [Michael's] claims for attorney's fees, the [c]ourt finds that the allegations made by [Nicole] are without foundation and furthermore that she was found in contempt.... As such, all the [GAL] fees are hereby [assessed] to [Nicole]. [Nicole] shall pay the [GAL] her remaining fees in the amount of $1,200.00 along with reimbursing [Michael] the [GAL] fees he initially paid in the amount of $1,500.00 within sixty (60) days of September 26, 2011.

After examining the [McKee factors], the [c]ourt finds that [Michael] is entitled to attorney's fees in the amount of $8,076.01[,] which the [c]ourt finds were reasonable and necessary in prosecuting the contempt case against [Nicole], and further in defending the unsubstantiated allegations of abuse and/or neglect[,] and a judgment is hereby entered for the same. As such[,] a total judgment is hereby entered against [Nicole] in the amount of $9,733.91 in favor of [Michael], which shall be paid within sixty (60) days of September 26, 2011[,] along with the remaining $1,200.00 in [GAL] fees[,] which shall be paid directly to the [GAL] within sixty (60) days of September 26, 2011[.]

¶ 13. We cannot say that the chancellor abused his discretion in awarding attorney's fees to Michael for his successful prosecution of the contempt charges against Nicole or for his defense against the baseless allegations of abuse. We also find that the chancellor did not abuse his discretion in ordering Nicole to pay the GAL fees. The chancellor found Nicole in contempt for claiming the children as dependents on her 2008 tax return and for withholding one of the children from Michael on one occasion. The chancellor did not find Michael in contempt for any of the claims asserted by Nicole. Additionally, the chancellor determined that Nicole's allegations of abuse against Michael were unsubstantiated. The chancellor's order was clear that the fees were awarded because of the unsubstantiated abuse allegations and because of Nicole's contemptuous conduct.

¶ 14. While Michael is certainly entitled to an award of attorney's fees for the contempt and for his defense against the abuse allegations, it is not clear that the total amount of $8,076.11 is only for the contempt and defense against the abuse allegations. In fact, an exhibit shows that at least part of the fees awarded were for the modification-of-child-custody proceedings. As such, the court erred in awarding the full amount of the attorney's bill. Although there may be difficulty in allocating the attorney's fees,...