Amber Nicole Hewlett Brown v. James Edwin Hewlett, III ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2017-CA-01319-COA
AMBER NICOLE HEWLETT BROWN APPELLANT
v.
JAMES EDWIN HEWLETT, III APPELLEE
DATE OF JUDGMENT: 08/09/2017
TRIAL JUDGE: HON. JOHNNY LEE WILLIAMS
COURT FROM WHICH APPEALED: PEARL RIVER COUNTY CHANCERY
COURT
ATTORNEY FOR APPELLANT: JERRY WESLEY HISAW
ATTORNEY FOR APPELLEE: RENEE M. PORTER
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
DISPOSITION: AFFIRMED - 03/12/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
J. WILSON, P.J., FOR THE COURT:
¶1. When Amber Brown and James Hewlett divorced, they agreed that Brown, who had
moved to Missouri, would have physical custody of their only child while Hewlett would
have in-person and telephonic visitation. Less than four months later, Hewlett filed a petition
for contempt, alleging that Brown was denying him telephonic visitation. Brown later denied
Hewlett in-person visitation as well. Brown was eventually served with process but failed
to appear in court for the contempt hearing. Brown’s attorney appeared and requested a
continuance, but the chancery court denied her request. Following the hearing, the court
found Brown in contempt and ordered her to pay Hewlett $5,000 in attorney’s fees.
¶2. On appeal, Brown alleges that the chancery court erred by (1) denying her requests
for a continuance and discovery; (2) finding her in contempt; and (3) awarding attorney’s
fees to Hewlett. For the reasons that follow, we find no error and affirm.
FACTS AND PROCEDURAL HISTORY
¶3. Brown and Hewlett were married in 2004. They have one daughter, Lily, who was
born in 2005. In September 2015, Brown left the marital home in Pearl River County and
moved to Missouri, taking Lily with her. Later that month, Hewlett filed a complaint in the
Pearl River County Chancery Court for separate maintenance and custody of Lily. He later
filed an amended complaint in which he sought a divorce and custody of Lily.
¶4. Brown was eventually served with process, and on December 18, 2015, the chancery
court set the case for trial and ordered Brown to bring Lily to Mississippi for visitation with
Hewlett during the Christmas holiday. However, Brown failed to comply with the court’s
order and denied Hewlett visitation with Lily. Therefore, on January 19, 2016, Hewlett filed
a petition to cite Brown for contempt.
¶5. In November 2015, Brown had initiated a competing custody action in the Circuit
Court of Greene County, Missouri. On January 11, 2016, pursuant to the Uniform Child
Custody Jurisdiction and Enforcement Act (UCCJEA),1 the judge in the Missouri case
conferred with the chancellor in the instant case. On January 21, 2016, pursuant to the
UCCJEA, the Missouri court entered an order declining jurisdiction and deferring
jurisdiction to the chancery court.
¶6. Following a hearing, on March 1, 2016, the chancery court entered an order. The
1
The Mississippi version of the Act is found in Mississippi Code Annotated sections
93-27-101 to -402 (Rev. 2018).
2
court stated that “[Brown] had agreed and based upon her agreement is ordered to dismiss
all actions in the [S]tate of Missouri and to proceed on this matter in Mississippi.” The court
ordered Brown to bring Lily to Mississippi for visitation with Hewlett during the week of
March 5-12, 2016. The court also granted Hewlett an additional two weeks of visitation in
June. The trial was continued to June 6, 2016. The court also deferred ruling on Hewlett’s
request for attorney’s fees based on Brown’s prior contempt.
¶7. The chancery court also appointed a guardian ad litem (GAL) to “investigate all
allegations in the pleadings concerning alleged abuse, custody, visitation, support, and any
and all other issues or concerns affecting [Lily’s] welfare and best interests.” The precise
nature of the “alleged abuse” at issue is not clear from the record on appeal.
¶8. On March 31, 2016, Hewlett filed a petition for contempt and additional visitation.
Hewlett alleged that Brown had failed to comply with her prior agreement, and the court’s
prior order, to dismiss all pending actions in Missouri. He alleged that he had incurred
significant legal expenses as a result of the still-active case in Missouri.
¶9. On April 7, 2016, Brown filed an answer to Hewlett’s complaint for divorce as well
as a counterclaim for divorce. Brown asserted that Lily’s home state for purposes of the
UCCJEA was Missouri rather than Mississippi. Therefore, Brown asserted that the chancery
court lacked jurisdiction over matters pertaining to Lily’s custody.
¶10. Prior to trial, Brown and Hewlett withdrew their fault-based grounds for divorce and
consented to an irreconcilable differences divorce. The parties’ consent to the divorce
provided that the chancery court would decide issues related to child custody, visitation, and
3
child support, and trial on those issues was continued to October 20, 2016.
¶11. However, on October 20, 2016, Brown and Hewlett entered into a child custody and
property settlement agreement, and the chancery court approved the agreement and
incorporated it into the court’s final judgment of divorce. Brown and Hewlett agreed to joint
legal custody of Lily, with Brown to have physical custody and Hewlett to have visitation.
The agreement provided that Hewlett could exercise visitation up to two weekends per month
in Missouri. In addition, the agreement granted Hewlett visitation in Mississippi during the
summer (beginning June 1 and ending July 12), spring break, and holidays. Finally, the
agreement granted Hewlett telephonic visitation at least twice per week. Hewlett agreed to
pay child support of $300 per month.
¶12. Less than four months later, on February 7, 2017, Hewlett filed a petition for
contempt, alleging that Brown had interfered with his telephonic visitation and, as a result,
he had not spoken to Lily since Christmas. A Rule 81 summons was issued for Brown on
February 23, 2017, which ordered her to appear for a hearing on May 8, 2017. See M.R.C.P.
81(d). In an affidavit dated April 27, 2017, a process server stated that he had made four
unsuccessful attempts to serve Brown at her residence in Missouri. On the first attempt, a
woman, later identified as Brown’s mother, answered the door and stated that Brown was not
home. Brown’s mother told the process server that she would not cooperate with any efforts
to serve Brown. The process server stated that the next three times he visited Brown’s
residence, the lights and ceiling fan were on, but no one answered the door. The process
server concluded that Brown was evading service.
4
¶13. On May 19, 2017, Hewlett filed a “motion for ex parte emergency relief” pursuant
Mississippi Rule of Civil Procedure 65. Hewlett claimed that Brown had “again initiated
spurious custody litigation” in Missouri in an effort to alienate his daughter from him and to
deprive the chancery court of jurisdiction. Hewlett alleged that Brown had registered the
chancery court’s judgment in Missouri without proper notice to him, and he had been
summoned to appear at a hearing in Missouri on May 23, 2017. Brown had petitioned the
Missouri court to modify the custody provisions of the chancery court’s judgment, which she
had agreed to only six months earlier. Specifically, Brown had asked the Missouri court to
grant her sole legal custody of Lily and to limit Hewlett to supervised visitation in Missouri.
Hewlett’s motion for ex parte emergency relief asked the chancery court to award him
attorney’s fees for having to defend the Missouri litigation and for Brown’s contempt.
¶14. In an order entered on May 22, 2017, the chancery court affirmed its continuing
exclusive jurisdiction, pursuant to the UCCJEA, over matters related to Lily’s custody. The
court also ordered Brown to appear for a show cause hearing to explain why she was evading
service and why she was continuing to pursue litigation in Missouri. The hearing was set for
June 12, 2017. The order also stated that it should be “registered with the appropriate Court
in the State of Missouri for notice upon [Brown].” Hewlett’s attorney in Missouri promptly
filed the May 22 order in the Missouri court. The record is unclear regarding any subsequent
action taken by the Missouri court.
¶15. Brown did not appear at the show cause hearing on June 12, 2017. Hewlett appeared
and testified that he had exercised in-person visitation during spring break in March 2017.
5
However, he had talked to Lily only once by phone during all of 2017, even though he had
attempted to contact her on an almost daily basis. In addition, Hewlett was being denied his
summer visitation with Lily—which was supposed to have started on June 1—because
Brown had refused to communicate with him since March. Hewlett’s parents testified and
corroborated Hewlett’s testimony.
¶16. On June 14, 2017, the chancery court entered an order finding that Brown had failed
to appear at the hearing despite receiving proper notice—i.e., the May 22 order filed in the
Missouri court. The chancery court also found that Brown was continuing to deny Hewlett
visitation. Therefore, the court also issued a “writ of assistance” directing the sheriff of Pearl
River County to take custody of Lily and deliver her to Hewlett for summer visitation. The
court ordered the sheriff to communicate with the sheriff of Greene County, Missouri, to
assist in the execution of the writ of assistance. The court also set a hearing for August 7,
2017, to address pending matters, including attorney’s fees and sanctions.
¶17. On July 12, 2017, Hewlett filed another motion for ex parte relief. He alleged that
Brown had continued to deny him visitation and that the sheriff of Greene County, Missouri,
would not comply with the chancery court’s writ of assistance. Hewlett’s motion was set for
a hearing on August 7, 2017, and the clerk issued a new Rule 81 summons for Brown. The
summons directed Brown to appear at the hearing to defend against the complaint for
contempt, emergency show cause motion, ex parte motions for emergency relief, and show
cause orders. Brown was finally served with the summons on August 1, 2017.
¶18. In late July or early August 2017, the chancellor conferred with the judge in the
6
Missouri case filed by Brown. As a result of their conference, the Missouri court again
declined to exercise jurisdiction. Brown filed a motion for reconsideration in the Missouri
court. She apparently argued that the court had erred by declining to exercise jurisdiction
without notice to her or a hearing. The record does not contain Brown’s motion or any
written order from the Missouri court. However, there does not appear to be any dispute that
the Missouri court declined to exercise jurisdiction.
¶19. Brown did not personally appear in the chancery court on August 7. However, an
attorney appeared on her behalf and requested a continuance. The hearing was continued to
11:30 a.m. the following day. The continuance order specifically ordered Brown to appear
at the hearing, and Brown’s attorney promptly notified Brown of the court’s order.
¶20. Brown again failed to appear on August 8. Brown’s attorney advised the court that
Brown had recently started a new job and could not take off of work but was available to
participate by telephone. Brown’s attorney then argued that the chancery court lacked
jurisdiction. Brown’s attorney also requested a continuance until the Missouri court had
ruled on Brown’s motion for reconsideration. However, the chancery court found that Brown
was served with notice of the August 8 hearing. The chancery court also ruled, once again,
that it retained jurisdiction over matters related to Lily’s custody.
¶21. The chancery court then took up the merits of Hewlett’s contempt petition. Brown’s
attorney then requested a continuance so that she could depose Lily’s counselor in Missouri
and so that Brown and Lily could testify. In the alternative, she asked that Brown and Lily
be allowed to testify telephonically. The chancellor denied Brown’s requests.
7
¶22. Hewlett testified that he had been unable to exercise his extended summer visitation
with Lily because Brown would not communicate with him. He also testified that he had
continued to call or text Lily nearly every day since the June 12 hearing, but he had not been
able to talk to her even once. Hewlett’s mother corroborated his testimony.
¶23. The next day, August 9, 2017, the chancery court entered a judgment of contempt.
The court found that Brown was in contempt because she had interfered with Hewlett’s
visitation rights. The court also found that Brown had attempted to frustrate the court’s
judgment and orders by initiating litigation in Missouri. The chancellor stated that he had
twice conferred with judges in Missouri to confirm his continuing jurisdiction over issues
related to custody of Lily, and the Missouri judges had concurred that the chancery court
retained jurisdiction in the matter. The court found that any further continuance “would be
a miscarriage of justice.” The court also issued writs of habeas corpus directing law
enforcement to bring Brown and Lily before the court for a hearing on August 23, 2017. The
court ruled that Hewlett should immediately receive three weeks of uninterrupted visitation
with Lily. The court also ordered Brown to post a $10,000 cash surety bond to ensure her
compliance with the court’s orders. Finally, the court ordered Brown to pay Hewlett $5,000
for attorney’s fees incurred due to her contempt.
¶24. On August 16, 2017, Brown filed a motion to reconsider or amend the judgment of
contempt and the writs of habeas corpus. She argued that the August 8 hearing should have
been continued. She also argued that the hearing should have been stayed and that the court
lacked jurisdiction because of the pending case in Missouri. Finally, in the alternative, she
8
argued that the hearing should have been stayed—or, at minimum, she and Lily should have
been allowed to testify telephonically—so that she could defend herself against Hewlett’s
petition for contempt. She alleged that, with more time, she could have put on evidence
related to Lily’s counseling in order to explain why she had denied Hewlett visitation.
Brown noticed her motion for a hearing on August 23.
¶25. Brown personally appeared at the hearing in chancery court on August 23. After
hearing arguments from counsel, the court denied Brown’s motion to reconsider or amend
the judgment of contempt. The court then questioned Brown regarding her failure to appear
at the hearing on August 8. Brown acknowledged that she was served with process on
August 1, but she denied that she knew about the hearing prior to service. She testified that
she did not believe that the hearing would be held on August 7 because she had not received
seven days’ prior notice. See M.R.C.P. 81(d)(2). She admitted that her attorney informed
her by 3 p.m. on August 7 that the hearing would go forward at 11:30 a.m. on August 8.
However, she testified that she could not attend the hearing because she had recently started
a new job and would have been required to drive to the hearing from Missouri.
¶26. The chancery court found that Brown was in contempt for her failure to appear at the
hearing on August 8. The court ordered her incarcerated until she had satisfied the
requirements of the court’s August 9 order. Brown subsequently posted a $10,000 cashier’s
check as a bond, paid $5,000 in attorney’s fees, and delivered Lily to Hewlett for three weeks
of visitation. The chancery court then entered an order directing that Brown be immediately
released from incarceration.
9
¶27. Brown filed a timely notice of appeal from the judgment finding her in contempt and
the subsequent denial of her motion to reconsider. On appeal, Brown argues that the
chancery court erred by (1) denying her requests for a continuance and discovery; (2) finding
her in contempt; and (3) awarding attorney’s fees to Hewlett.
ANALYSIS
I. Denial of Requests for Continuance and Discovery
¶28. Brown actually raises four distinct sub-issues under the first heading of the argument
section of her opening brief. We address these sub-issues in turn below. Some of them are
procedurally barred. All are without merit.
¶29. First, Brown asserts that the chancery court should have granted a continuance and
appointed a GAL to investigate “allegations of abuse and/or neglect.” However, Brown
never asked the court to appoint a GAL. Therefore, any claim that the court should have
exercised its discretion to appoint a GAL is procedurally barred. See, e.g., McDonald v.
McDonald, 39 So. 3d 868, 885 (¶54) (Miss. 2010) (“The well-recognized rule is that a trial
court will not be put in error on appeal for a matter not presented to it for decision.”).
¶30. Nor was the appointment of a GAL mandatory in this case. If there is a legitimate
charge of abuse or neglect in a custody proceeding, then the chancery court must appoint a
GAL, “whether the parties requested a [GAL] or not.” Carter v. Carter, 204 So. 3d 747,
758-59 (¶50) (Miss. 2016) (citing Miss. Code Ann. §93-5-23 (Rev. 2018)); see also Miss.
Code Ann. § 93-11-65 (Rev. 2018)). However, the appointment of a GAL is mandatory only
if there is a “sufficient factual basis to support” an allegation of abuse or neglect. Carter,
10
204 So. 3d at 759 (¶51). The chancery court has “discretion” to determine whether such an
allegation is “legitimate.” Id. at (¶53). If the court concludes that there is no factual basis
for the allegation, then the appointment of a GAL is not mandatory. Id. In this case, Brown
fails to cite to any concrete allegation of abuse, let alone any evidence to support such a
claim. Even at the final hearing before the chancery court, Brown merely testified that Lily
had seen a counselor for unspecified reasons. On this record, the chancery court did not
abuse its discretion by not appointing a GAL sua sponte in this contempt proceeding.2
¶31. Brown’s second sub-argument is that the chancery court should have continued the
case to allow her to conduct discovery. A trial court’s rulings on discovery matters will not
be reversed unless the court has abused its discretion. Dawkins v. Redd Pest Control Co.,
607 So. 2d 1232, 1235 (Miss. 1992). Likewise, “the decision to grant or deny a motion for
a continuance is within the sound discretion of the trial court and will not be reversed unless
the decision results in manifest injustice.” In re E.G., 191 So. 3d 763, 775 (¶37) (Miss. Ct.
App. 2016) (quoting Ross v. State, 954 So. 2d 968, 1007 (¶91) (Miss. 2007)).
¶32. Here, Brown failed to make any specific request to conduct discovery in the trial
court, and on appeal she only vaguely alleges that she needed “discovery . . . to learn the
nature of the allegations and mount a defense.” However, this contempt proceeding was
focused on Brown’s reasons for her failure to comply with the custody provisions of the
divorce judgment and the court’s orders. It was incumbent on Brown to explain why she had
not complied or could not comply with the visitation provision of the divorce decree. See
2
As noted above, the chancery court did appoint a GAL prior to the original custody
determination in the judgment of divorce. See supra ¶7.
11
infra ¶37 (discussing defenses to contempt). Brown wholly fails to explain why she needed
to conduct discovery to explain her own actions or inactions. Moreover, pursuant to Rule 81,
a petition for contempt is “triable 7 days after completion of service of process.” M.R.C.P.
81(d)(2).3 Thus, Brown was obliged to appear in court for the hearing and explain her
actions and her failure to comply with the chancery court’s judgment.
¶33. The only specific discovery-related issue that Brown did raise in the trial court was
her attorney’s ore tenus request, on the day of the contempt hearing, for a continuance to
depose Lily’s counselor in Missouri. However, Brown failed to support her request with an
affidavit from the counselor or any other evidence. We find no abuse of discretion in the trial
court’s denial of this request. Culpepper Enters. Inc. v. Parker, No. 2016-CA-01771-COA,
2018 WL 3738178, at *9 (¶¶42-45) (Miss. Ct. App. Aug. 7, 2018) (holding that the trial court
did not err by denying a request for a continuance that lacked evidentiary support).
¶34. Brown’s third sub-argument under this heading is that the chancery court should have
continued the case so that Brown could appear and testify—or at least should have allowed
Brown and Lily to testify by telephone. We find no abuse of discretion in the denial of these
requests. “[T]he admissibility of telephonic testimony is within the sound discretion of the
3
We note that Brown does not challenge the sufficiency of service of process under
Rule 81. There is no dispute that she was personally served with the Rule 81 summons on
August 1, 2017, and the hearing was held seven days later. See M.R.C.P. 81(d)(2) (providing
that contempt actions are “triable 7 days after completion of service of process”). In the trial
court, Brown’s attorney appeared to concede that service was sufficient, and on appeal she
does not argue otherwise. Because Brown does not challenge the sufficiency of service, it
is unnecessary for us to address the chancery court’s conclusion that Brown was properly
served when the chancery court’s show cause order was filed in the pending Missouri case
filed by Brown. See supra ¶¶ 14, 16.
12
trial judge and is not reversible unless such discretion is abused.” Byrd v. Nix, 548 So. 2d
1317, 1320 (Miss. 1989). “[T]elephonic testimony generally [is] not . . . allowed” “[i]n the
absence of exigency or consent” of the opposing party.4 Id. at 1319-20. Brown had the
opportunity to appear at the hearing and testify in person but failed to do so. We hold that
the trial court did not abuse its discretion by declining to allow telephonic testimony under
these circumstances. See Estate of Hunter v. Hunter, 736 So. 2d 440, 444 (¶13) (Miss. Ct.
App. 1999) (finding that the chancellor did not abuse his discretion by declining to allow
telephonic testimony “[s]ince there were other reasonable means available . . . to secure the
testimony of [the absent witness]”).
¶35. Brown’s final sub-argument is that the chancellor was biased and that she is entitled
to a hearing before a different chancellor on remand. The chancellor has retired, and we are
not remanding the case for any purpose, so this issue is probably moot. But we address it
briefly anyway. We note that Brown never filed a recusal motion in the trial court, so any
recusal issue is procedurally barred. See Wal-Mart Stores Inc. v. Frierson, 818 So. 2d 1135,
1141 (¶10) (Miss. 2002). Moreover, Brown primarily argues that the chancellor showed bias
by denying her requests for a continuance and by not allowing telephonic testimony. We
have already held that the chancellor did not abuse his discretion in any of his rulings. His
rulings do not demonstrate bias either. Finally, Brown contends that the chancellor
demonstrated bias when he made comments to the effect that he did not see a defense to
Brown’s contumacious violations of the court’s judgment. However, the comments that
4
Hewlett specifically objected to Brown’s request to present telephonic testimony.
13
Brown cites are not evidence of bias but only the judge’s candid observations after
substantial evidence of contempt had already been presented. In short, we conclude that
Brown’s allegation of bias is without merit or any support in the record.
II. Finding of Contempt
¶36. Brown next claims that the chancery court erred by finding her in contempt for failing
to comply with the visitation provisions of the court’s prior judgment. Brown asserts that she
was following the advice of Missouri counsel, who allegedly told her that the case should be
heard in Missouri. This argument is without merit.5
¶37. “The Mississippi Supreme Court has consistently held that the inquiry in a contempt
proceeding is limited to whether or not the order was violated, whether or not it was possible
to carry out the order of the court, and if it was possible, whether or not such violation was
an intentional and willful refusal to abide by the order of the court.” Ellis v. Ellis, 840 So.
2d 806, 811 (¶18) (Miss. Ct. App. 2003) (quotation marks omitted). “The only defenses to
a contempt violation include an inability to comply with the court order or that the court
order was unclear.” Id. (citations omitted). It is not a “defense . . . that the contemnor does
not agree with the previous order and considers the order of the court decree to be wrong,
even [if her] motives in so doing are based upon pure moral sentiment.” Id. at (¶19)
(quotation marks omitted). A party must file a motion and obtain a modification of the
5
Brown also asserts that if a continuance had been granted, or if witnesses had been
allowed to testify by telephone, then she could have proven that she denied Hewlett visitation
out of concern for Lily’s well-being. We have already affirmed the chancellor’s denial of
a continuance and evidentiary rulings for the reasons discussed above. For those same
reasons, these issues are not a basis for reversing the chancellor’s finding of contempt.
14
judgment establishing visitation rather than simply ignore its provisions. “Whether a party
is in contempt is a question of fact to be decided on a case-by-case basis.” Gilliland v.
Gilliland, 984 So. 2d 364, 369-70 (¶19) (Miss. Ct. App. 2008). “A chancellor has substantial
discretion in deciding contempt matters because of the chancellor’s temporal and visual
proximity to the litigants.” Id. (quotation marks omitted).
¶38. We affirm the chancery court’s finding of contempt because there is substantial
evidence to support it, and the court did not clearly err or abuse its discretion. Brown’s
reliance on the Missouri litigation is misplaced, as nothing that occurred in Missouri justified
her violations of the visitation provisions of the divorce judgment of the chancery court. As
discussed above, the Missouri court declined to exercise jurisdiction in the case.6 More
important, the Missouri court never entered an order that purported to modify or suspend
Hewlett’s visitation rights under the chancery court’s judgment. Brown’s mere filing of
litigation in Missouri cannot justify her refusal to comply with the provisions of the chancery
court’s judgment, which remained in effect at all times. There is no dispute that Brown
failed to comply with the visitation provisions of that judgment. Accordingly, we affirm the
chancellor’s finding of contempt.
III. Award of Attorney’s Fees
¶39. Brown’s final argument is that the chancellor erred by awarding Hewlett attorney’s
fees without requiring an “itemized statement” from his attorney or “accompanying
6
On appeal, Brown does not argue that the chancery court ever lost jurisdiction
pursuant to the UCCJEA or for any other reason. See Miss. Code Ann. § 93-27-202 (Rev.
2018) (providing that a chancery court has “exclusive, continuing jurisdiction” over a prior
child custody determination except in specified circumstances).
15
testimony related to the McKee factors.”7 We find no abuse of discretion and therefore
affirm the award.
¶40. “The matter of awarding attorney’s fees is largely entrusted to the sound discretion
of the chancellor.” Heisinger v. Riley, 243 So. 3d 248, 259 (¶45) (Miss. Ct. App. 2018)
(quoting Evans v. Evans, 75 So. 3d 1083, 1089 (¶22) (Miss. Ct. App. 2011)). We review the
reasonableness of the award only for an abuse of discretion, and we will not reverse unless
the award is manifestly erroneous or amounts to a clear or unmistakable abuse of discretion.
Berlin v. Livingston Prop. Owners Assoc. Inc., 232 So. 3d 148, 159 (¶33) (Miss. Ct. App.
2017), cert. denied, 229 So. 3d 714 (Miss. 2017). “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.” Heisinger, 243 So.
3d at 259 (¶45) (quoting Gregory v. Gregory, 881 So. 2d 840, 846 (¶28) (Miss. Ct. App.
2003)). The award is intended to reimburse the prevailing party for expenses incurred as a
result of the other party’s contumacious conduct. See id.
¶41. In this case, the chancellor granted Hewlett’s request for $5,000 in attorney’s fees
based on Brown’s contempt. The chancellor found that $5,000 was “more than reasonable
and probably not enough.” Brown argues that the chancellor should not have accepted the
request at face value. She argues that the chancellor should have insisted on an itemized
billing statement and additional testimony.
¶42. However, in appropriate cases “in which a court is authorized to award reasonable
7
See McKee v. McKee, 418 So. 2d 764 (Miss. 1982).
16
attorneys’ fees, the court [may] make the award based on the information already before it
and the court’s own opinion based on experience and observation.” Miss. Code Ann. § 9-1-
41 (Rev. 2014). In such cases, the court may determine that there is no need for the
requesting party to put on additional “proof as to the reasonableness of the amount sought.”
Id. And when the record as a whole shows that the amount awarded was “not unreasonable,”
we will affirm. Berlin, 232 So. 3d at 159 (¶34) (quoting West v. West, 88 So. 3d 735, 747
(¶58) (Miss. 2012)).
¶43. Given the lengthy procedural history of this case, as recounted above, and Brown’s
persistent contempt of court, we find no abuse of discretion in the chancellor’s ruling. An
award of $5,000 is not an unreasonable amount for prosecution of this contempt action,
which required three hearings in chancery court and also forced Hewlett to retain counsel in
Missouri. Based on the record as a whole, the award was not unreasonable and is therefore
affirmed. See Miss. Code Ann. § 9-1-41; Berlin, 232 So. 3d at 159 (¶34).
IV. Appellate Attorney’s Fees
¶44. In his appellate brief, Hewlett requests an additional award of $2,500 in attorney’s
fees for his defense of this appeal. Hewlett’s request appears to be well-taken because we
have affirmed the chancellor’s finding that Brown was in contempt. See Heisinger, 243 So.
3d at 260 (¶48). In such cases, we generally award appellate attorney’s fees equal to one half
of the attorney’s fees awarded by the chancery court. See Riley v. Riley, 196 So. 3d 1159,
1164 (¶23) (Miss. Ct. App. 2016) (“Generally, on appeal this Court awards attorney’s fees
of one-half of what was awarded in the trial court.”); accord Grant v. Grant, 765 So. 2d
171263, 1268 (¶19) (Miss. 2000).
¶45. Hewlett’s request is clearly set out in a separate section of his appellate brief with a
citation to on-point authority. However, our Supreme Court recently held that a request for
appellate attorney’s fees must be made in a motion that complies with Mississippi Rule of
Appellate Procedure 27(a). Latham v. Latham, No. 2017-CA-00856-SCT, 2019 WL 242958,
at *4-*5 (¶¶21-24) (Miss. Jan. 17, 2019). Therefore, we deny Hewlett’s request for appellate
attorney’s fees without prejudice. Hewlett may renew his request in a motion that complies
with Rule 27(a). Any such motion should be filed before the mandate issues.
CONCLUSION
¶46. The chancellor did not abuse his discretion by denying Brown’s requests for a
continuance and to present telephonic testimony. Nor did the chancellor clearly err or abuse
his discretion by finding Brown in contempt. Rather, the chancellor’s finding of contempt
is supported by substantial evidence that Brown refused to comply with the clear visitation
provisions of the parties’ divorce decree. Finally, the chancellor did not err by awarding
Hewlett reasonable attorney’s fees based on Brown’s contumacious conduct.
¶47. AFFIRMED.
BARNES, C.J., CARLTON, P.J., GREENLEE, WESTBROOKS, TINDELL,
LAWRENCE AND C. WILSON, JJ., CONCUR. McDONALD, J., SPECIALLY
CONCURS WITH SEPARATE WRITTEN OPINION, JOINED BY WESTBROOKS
AND McCARTY, JJ.; TINDELL, J., JOINS IN PART. McCARTY, J., SPECIALLY
CONCURS WITH SEPARATE WRITTEN OPINION, JOINED IN PART BY
WESTBROOKS, J.; McDONALD, J., JOINS IN PART WITH OPINION.
McDONALD, J., SPECIALLY CONCURRING:
¶48. I recognize that the common law rule for granting attorney’s fees to the prevailing
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party on appeal is well established. Yates v. Summers, 177 Miss. 252, 170 So. 2d 827, 832
(1936); Riley v. Riley, 196 So. 3d 1159, 1164 (¶23) (Miss. Ct. App. 2016). But, I agree with
Judge McCarty’s other specially concurring opinion that the amount of fees should be based
on the time and energy expended on the appeal as opposed to an arbitrary “one-half” rule.
¶49. An analysis as outlined in McKee v. McKee, 418 So. 2d 764 (Miss. 1982), should be
employed to determine the amount of attorney’s fees to be awarded to the prevailing party
on appeal.
¶50. The Supreme Court recently ruled in Latham v. Latham, No. 2017-CA-00856-SCT,
2019 WL 242958 at *4-*5 (¶21-24) (Miss. Jan. 17, 2019), that submission of a motion and
time records is the better practice and has now required such pursuant to Mississippi Rules
of Appellate Procedure 27(a).
¶51. In the case under consideration, I believe that the majority made the correct decision
by dismissing the request for attorney’s fees without prejudice and allowing the prevailing
party to make a request in compliance with Mississippi Rule of Appellate Procedure 27(a).
I therefore specially concur with the majority for the foregoing reasons.
WESTBROOKS AND McCARTY, JJ., JOIN THIS OPINION. TINDELL, J.,
JOINS THIS OPINION IN PART.
McCARTY, J., SPECIALLY CONCURRING:
¶52. I agree with the conclusions of the majority in all respects but write separately to
emphasize that attorneys are bound by Rule 1.5 of the Mississippi Rules of Professional
Conduct to only take a “reasonable fee.” The common law practice of seeking one-half of
the attorney’s fees awarded by the chancery court is not tethered to our rules or the actual
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work performed by the attorney. In light of the Supreme Court’s ruling in Latham v. Latham,
No. 2017-CA-00856-SCT, 2019 WL 242958 (Miss. Jan. 17, 2019), the practice should be
fully eliminated.
¶53. In Mississippi, “[a] lawyer’s fee shall be reasonable.” M.R.P.C. 1.5(a). As a matter
of law, “the word ‘shall’ is a mandatory directive.” Ivy v. Harrington, 644 So. 2d 1218, 1221
(Miss. 1994). Rule 1.5 gives us a list of eight factors that guides whether the fee is
reasonable—such as “the time and labor required,” or “the fee customarily charged in the
locality for similar legal services,” and the experience and reputation of the attorney.
M.R.P.C. 1.5(a)(1)-(8). These are “also known as the McKee factors . . . .” Tunica County
v. Town of Tunica, 227 So. 3d 1007, 1031 (¶58) (Miss. 2017).
¶54. Therefore if one is seeking attorney’s fees, one must be able to show that it is a
reasonable fee. Although in certain cases, such as this one, a flat fee or a request for a certain
amount could be approved, in the vast majority of cases the attorney will need to demonstrate
reasonableness. I believe this request cannot be done with a blanket ask for “one-half of the
attorney’s fees awarded by the trial court.” The reasoning is common sense. The work in
the trial court may have been formidably complex, as in this case, and required multiple
attorneys over multiple years. In contrast, it might be only one attorney who handles an
appeal, which might span the better part of a single year. The work of an appeal may not
warrant one-half the trial-court fee, rendering it an unreasonable fee.
¶55. Conversely, in some appeals the written and oral advocacy required may be much
greater than the work in a trial court. A one-day trial on a single issue may not require a large
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fee, but a change in the law or statute might warrant extensive briefing and research for an
appeal. One-half the trial court fee would not be reasonable in such a situation, as more
would be warranted.
¶56. Even at the dawn of the twentieth century it was simply “a matter of common
knowledge amongst the profession that a less fee should be allowed for services in the
Supreme Court than in the circuit or chancery court.” Curphy & Mundy v. Terrell, 89 Miss.
624, 42 So. 235, 236 (1906). In that case, the Supreme Court ruled that “[t]he whole
profession may be said to have knowledge” that “[t]he old tariff in use in this state
customarily made the fee in this court one-half the fee in the court below.” Id. By 1936, the
Supreme Court was holding that “[i]t has long been our custom under such circumstances
and in such cases to allow one-half of the fee allowed in the lower court when the fee fixed
below is reasonable and proper.” Yates v. Summers, 177 Miss. 252, 170 So. 827, 832 (1936).
¶57. As a result, the one-half fee comes to us through years of precedent and was once so
common that it was granted without citation. See, e.g., Jenkins v. Jenkins, 278 So. 2d 446,
450 (Miss. 1973) (no citation of law while granting the one-half fee). It was simply that
“[t]he rule of this Court is to allow one-half of the amount awarded by the trial court.” Keyes
v. Keyes, 252 Miss. 138, 145, 171 So. 2d 489, 491 (1965);8 Kyzar v. Kyzar, 248 Miss. 59, 64,
157 So. 2d 770, 772 (1963) (granting $125 for appellate fees, half of the $250 for trial court
work). The one-half fee does not appear to ever have been actually one of the Supreme
8
In Keyes, the Court had even ordered the one-half fee when the appellant did not
prevail in the appeal, but was demonstrably without funds and “[i]mportant questions were
decided, and very sacred rights were in balance.” Id. at 491; accord Nix v. Nix, 253 Miss.
565, 571, 176 So. 2d 297, 300 (1965) (granting a one-half fee to losing party upon remand).
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Court Rules that were in effect at the time before the adoption of the Rules of Appellate
Procedure, and was elsewhere referred to as “the Court’s policy . . . to award attorneys’ fees
on appeal of one-half of that allowed by the trial court. . . .” Tighe v. Tighe, 239 Miss. 666,
670, 124 So. 2d 843, 843 (1960). It may have had its origins in part or in whole in statutes
which allowed chancellors to “divide[] as may appear equitable” the costs of suit. Miss.
Code Ann. 1942, § 1583 (recompiled 1956); Powell v. Booth (In re Powell’s Will), 239 Miss.
10, 17, 121 So. 2d 1, 3 (1960) (citing to the statute for a one-half fee).
¶58. Regardless of its origin, and despite its lengthy history, the one-half fee award should
be fully retired. Ultimately, the needs and requirements of advocacy between the trial court
and appeal can be very different, and a generic request for one-half the trial court fee does
not properly honor Rule 1.5 or its requirement of reasonableness. Therefore any attorney
seeking fees from this Court or any other is best served by adhering closely to the McKee
factors and demonstrating that the fee they seek is reasonable.
WESTBROOKS, J., JOINS THIS OPINION IN PART. McDONALD, J., JOINS
IN PART WITH OPINION.
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