Christopher Paul Vandenbrook v. Charlotte Emma McKinney Vandenbrook

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2017-CA-00847-COA
CHRISTOPHER PAUL VANDENBROOK APPELLANT
v.
CHARLOTTE EMMA (MCKINNEY) APPELLEE
VANDENBROOK
DATE OF JUDGMENT: 01/03/2017
TRIAL JUDGE: HON. VICKI B. DANIELS
COURT FROM WHICH APPEALED: DESOTO COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT: D. PACE BRANAN
T. SWAYZE ALFORD
KAYLA FOWLER WARE
ATTORNEYS FOR APPELLEE: CHARLES E. WINFIELD
MALENDA HARRIS MEACHAM
ASHLYN BROWN MATTHEWS
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
DISPOSITION: AFFIRMED IN PART, REVERSED AND
REMANDED IN PART, AND REVERSED
AND RENDERED IN PART - 03/26/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
CARLTON, P.J., FOR THE COURT:
¶1. Christopher Vandenbrook (Chris) appeals the judgment of the DeSoto County
Chancery Court that, among other things, (1) awarded custody of the parties’ minor children
to his wife, Charlotte Emma Vandenbrook1 (Emma), (2) ordered Chris to pay Emma child
support, but denied him the right to claim any of the children on his tax return, and (3)
adjudicated Chris in contempt and awarded attorney’s fees to Emma.
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Emma now goes by the last name “McKinney,” which we assume is her maiden
name because she is still legally married to Chris.
¶2. After our review, we find as follows: we affirm the chancellor’s custody
determination; we reverse and remand the chancellor’s award of child support and retroactive
child support; we affirm the chancellor’s award of the tax exemption to Emma and denial of
Chris’s motion for reconsideration with respect to Chris’s request to offer additional evidence
regarding his W-2; we affirm the chancellor’s decision to exclude the photographs of the
marital home from evidence; and we reverse and render the chancellor’s judgment finding
Chris in contempt as well as the chancellor’s award of attorney’s fees to Emma in the
contempt action.
FACTS
¶3. Emma and Chris were married on January 14, 2000, in Paducah, Kentucky. Three
male children were born to the parties. During the marriage, the parties lived in Kentucky,
North Carolina, Missouri, and Mississippi. Chris worked during the marriage and was the
primary breadwinner, while Emma was primarily a stay-at-home parent.
¶4. On April 23, 2014, Emma filed a complaint for divorce and temporary relief on the
grounds of habitual cruel and inhuman treatment, constructive desertion, or irreconcilable
differences. Emma requested custody of the parties’ three minor children, child support,
permanent alimony, and an equitable division of the marital assets. She also requested
separate maintenance. Chris filed an answer and a counterclaim but later withdrew it. The
chancellor entered a temporary order on April 5, 2016, ordering Chris to pay Emma
temporary child support in the amount of $1,400 per month and to pay for Emma’s
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automobile note and insurance. The temporary order also allowed Emma to move back into
the marital home with Chris if she chose to do so, and both parties were enjoined from
removing any property from the marital home.
¶5. After several continuances, the matter was set for trial, and Emma filed a petition for
contempt against Chris, alleging that he had violated the temporary order by exercising stock
options. Emma’s petition was set for hearing on the date of the trial.
¶6. A trial was held on December 13, 2016. Emma presented her case and evidence to
support her grounds for divorce, and at the conclusion of Emma’s case, Chris moved for an
involuntary dismissal of Emma’s complaint pursuant to Rule 41 of the Mississippi Rules of
Civil Procedure.
¶7. On December 15, 2016, the chancellor made a bench ruling granting Chris’s Rule 41
motion and dismissing Emma’s complaint for divorce on the grounds of habitual cruel and
inhuman treatment. The chancellor also found Chris in contempt of the temporary order for
selling stock options without obtaining approval or permission of the court.
¶8. Regarding child custody, the chancellor conducted an Albright2 analysis and found it
was in the children’s best interest to grant Chris and Emma joint legal custody, with Emma
having physical custody and Chris having certain periods of visitation. The chancellor
ordered Chris to pay Emma $3,690 per month in child support; maintain health, vision, and
dental insurance on the minor children, and be responsible for seventy-five percent of all
2
Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983).
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medical expenses not covered by insurance. The chancellor also ordered Chris to pay Emma
$49,730 in retroactive child support. Additionally, the chancellor ordered Chris to pay Emma
attorney’s fees in the amount of $29,346.06 for the divorce and $2,500 in attorney’s fees for
the contempt action. On January 3, 2017, the chancellor entered an order memorializing her
bench ruling.
¶9. Both Emma and Chris filed motions for reconsideration, seeking to alter or amend the
judgment pursuant to Rule 59 of the Mississippi Rules of Civil Procedure. Emma also filed
a motion for additional attorney’s fees, and Chris filed a separate motion for relief from the
judgment pursuant to Mississippi Rule of Civil Procedure 60(b). Following a hearing on the
motions, the chancellor took them under advisement, and on June 1, 2017, the chancellor
entered her order denying Chris’s motions and granting in part and denying in part Emma’s
motion, stating that the denial of a divorce was proper. The order also denied Emma’s
request for additional attorney’s fees. Chris appeals from the final order and the denial of
his posttrial motions.
DISCUSSION
¶10. “A chancellor’s findings will not be disturbed on appeal ‘when supported by
substantial evidence unless the chancellor abused [her] discretion, was manifestly wrong,
clearly erroneous[,] or an erroneous legal standard was applied.’” Powell v. Powell, 976 So.
2d 358, 361 (¶10) (Miss. Ct. App. 2008) (quoting Sanderson v. Sanderson, 824 So. 2d 623,
625-26 (¶8) (Miss. 2002)). “However, where the chancellor improperly considers and
4
applies the Albright factors, an appellate court is obliged to find the chancellor in error.”
Collins v. Collins, 98 So. 3d 506, 507 (¶7) (Miss. Ct. App. 2012). “It is for the chancellor
to determine the credibility and weight of the evidence.” Divers v. Divers, 856 So. 2d 370,
373 (¶9) (Miss. Ct. App. 2003).
I. Custody
¶11. In custody matters, the Mississippi Supreme Court has established the following
guidelines to assist chancellors in making considerations regarding the best interest of
children:
We reaffirm the rule that the polestar consideration in child[-]custody cases is
the best interest and welfare of the child. The age of the child is subordinated
to that rule and is but one factor to be considered. Age should carry no greater
weight than other factors to be considered, such as: health[] and sex of the
child; a determination of the parent that has had the continuity of care prior to
the separation; which has the best parenting skills and which has the
willingness and capacity to provide primary child care; the employment of the
parent and responsibilities of that employment; physical and mental health and
age of the parents; emotional ties of parent and child; moral fitness of [the]
parents; the home, school[,] and community record of the child; the preference
of the child at the age sufficient to express a preference by law; stability of
home environment and employment of each parent[;] and other factors relevant
to the parent-child relationship.
Albright, 437 So. 2d at 1005.3
¶12. With these guidelines in mind, Chris concedes that the chancellor used the correct
legal standard set forth in Albright to determine child custody, but he contends that she failed
3
“A court which dismisses the complaint for divorce may still provide for the custody
of the children if [the court] deems it necessary.” Waller v. Waller, 754 So. 2d 1181, 1183
(¶12) (Miss. 2000).
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to consider all of the evidence introduced at trial on those factors. He further contends that
the chancellor failed to give the appropriate weight to several factors. As a result, Chris
argues that the chancellor erred when she awarded physical custody of the children to
Emma.4 Emma, however, asserts that the chancellor employed her subjective judgment of
the witnesses’ credibility, assessed the wide-ranging evidence before her, and acted within
her discretion in awarding custody of the minor children.
¶13. The chancellor found that five of the Albright factors favored Emma (continuity of
care; parenting skills; employment and responsibilities of employment; emotional ties with
children; and preference of two oldest children) and that only one of the factors favored Chris
(sex of the children).5 The chancellor found that the remaining six factors favored neither
parent over the other (health of the children; willingness and capacity to be the primary care
giver; age, physical health, and mental health of each parent; moral fitness; home, school, and
community records of children; and stability of home environment and employment).
A. Age, Health, and Sex of the Children
¶14. Chris contends that this factor clearly favored him because all of the children are male.
He relies on Flowers v. Flowers, 90 So. 3d 672, 680 (¶32) (Miss. Ct. App. 2012), which
states that “when the health aspect is neutral, the child’s gender in relation to that of the
4
As stated, the chancellor ruled that the parties would share joint legal custody of the
minor children with Emma having physical custody.
5
Although the chancellor stated that the sex of the children slightly favored Chris,
she ultimately ruled that this issue was neutral.
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parent is clearly relevant. Furthermore, this Court has upheld a chancellor’s determination
on this factor based solely on gender.”
¶15. The chancellor in the present case reasoned that all the children appeared to be in
good health, because she did not hear any evidence to the contrary. She adduced that the
health of the children did not favor either party. Since the children are all male, she found
that this “factor might slightly favor [Chris].” She found that the health of the children did
not favor either party. We find no abuse of discretion as to this factor.
B. Continuity of Care
¶16. The chancellor stated the following: “[This] factor strongly favors the mother. The
mother [has been] a stay-at-home mom for the majority of the life of these children. And so
she continued to have the children, even during periods of separation she has still seemed to
exercise the continuity of care of the children.” Chris asserts that this factor should not
default to a stay-at-home mom. He further asserts that although Emma was a stay-at-home
mom, “she spent much time during the marriage traveling back and forth to Kentucky,
partying with friends, pursuing extramarital relationships, and on her phone texting or calling
individuals.”
¶17. Emma responds that the chancellor’s finding on this factor is supported by substantial
evidence and therefore should be affirmed. Despite Chris’s arguments, it is the chancellor’s
job to determine the credibility and weight of the evidence. Based our review of the record,
her decision was supported by substantial evidence and will not be disturbed.
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C. Parenting Skills
¶18. According to the chancellor, based on the limited testimony with respect to this factor,
this factor favored Emma because she was the primary care giver for the children. She found
the parties had equal ability and capacity to provide childcare. The chancellor spoke briefly
on the record about some of the issues that she had heard during the testimony, such as the
children obtaining driver’s licenses and school issues. In arriving at her decision, the
chancellor stated:
Mom is the one that, you know, did the parenting issues. So I think that factor
slightly favors the mom. As I said, I didn’t hear anything except maybe some
relationship issues between dad and the boys that would lead me to believe and
that maybe he yelled a lot, you know, that his parenting skills were deficient
except maybe they are just different from mom[’]s. But, as I said, I think this
factor slightly favors the mom.
Chris contends that Emma demonstrated poor parenting skills and made poor decisions
affecting the children during the marriage. He argues that she did not know how many
classes their oldest son had left before he could get his high school diploma, and that she
refused to give him the birth certificates and social security numbers for their oldest two boys
so they could obtain their driver’s licenses. Chris asserts that he is in a “much more capable
and positive position to model the values the boys need in order to transition into a
productive adulthood.”
¶19. After our review, we find that the record contains substantial evidence to support the
chancellor’s decision; therefore, the decision will not be disturbed.
D. Employment Responsibilities
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¶20. The chancellor found that, considering the testimony regarding the amount of time
that Chris would spend out of the home working, this factor slightly favored Emma. She
stated that “the testimony was that dad would have to leave at six or six-thirty -- the child
said one thing and dad said another thing -- in the morning and get home anywhere between
six-thirty and nine-thirty at night.” There was also testimony that Emma worked less hours
and would be home more often than Chris. We find substantial evidence in the record
supports the chancellor’s decision; therefore, it will not be disturbed.
E. Physical and Mental Health and Age of the Parents
¶21. The chancellor found that this factor favored neither parent. She did make note of
medical records that were introduced by Chris challenging Emma’s mental state; however,
she stated that she made a determination that, after reviewing the records, Emma was never
diagnosed with a mental defect. We find substantial evidence in the record supports the
chancellor’s decision; therefore, it will not be disturbed.
F. Emotional Ties of Parent and Child
¶22. The chancellor found that this factor strongly favored Emma based on the preference
of the two oldest children, expressed in their affidavits, as to live with her. We find
substantial evidence in the record supports the chancellor’s decision; therefore, it will not be
disturbed.
G. Moral Fitness of the Parents
¶23. The chancellor briefly discussed the parties’ sexual proclivities, which they testified
9
about extensively, and ultimately determined that their moral fitness was not outcome
determinative as to this factor. She further stated, “I don’t think -- I think with regard to their
moral fitness they probably are rather equal. Quite honestly, I believe both of them this court
had an issue with truthfulness. I don’t think either one of them sat up here and told me the
truth about everything.” We find substantial evidence in the record supports the chancellor’s
decision; therefore, it will not be disturbed.
H. Home, School, and Community Record of the Child
¶24. The chancellor found that there was not a lot of the testimony presented regarding this
factor—only that one of the children had been kicked out of school—and limited testimony
about their home life. Therefore, she found that this factor favored neither parent. We find
substantial evidence in the record supports the chancellor’s decision; therefore, it will not be
disturbed.
I. Preference of Child
¶25. According to the chancellor, both of the older children signed a preference that was
filed with the court, stating that they wanted to live with Emma. We find substantial
evidence in the record supports the chancellor’s decision; therefore, it will not be disturbed.
J. Stability of Home Environment
¶26. The chancellor noted that Chris has been out in the workforce longer, so this factor
slightly favored him; however, she also stated that Emma just reentered the workforce and
seemed to have a stable home. Based on that finding, she found this factor favored neither
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parent. The record reflects substantial evidence to support this finding, and therefore it will
not be disturbed.
¶27. Our review of the record reflects that the custody award by the chancellor was
supported by substantial evidence. Given our deferential standard of review, we find the
chancellor did not abuse her discretion. Therefore, we affirm the chancellor’s judgment on
this issue.
II. Child Support
¶28. “[T]he process of weighing evidence and arriving at an award of child support is
essentially an exercise in fact-finding, which customarily significantly restrains [the
appellate] [c]ourt’s review.” Clausel v. Clausel, 714 So. 2d 265, 266-67 (¶6) (Miss. 1998).
At the time of trial, the Vandenbrooks had three minor children. The chancellor calculated
Chris’s monthly adjusted gross income (AGI) at $16,785.50 per month and ordered him to
pay $3,690 per month in child support. Mississippi’s statutory child-support guidelines
create a rebuttable presumption that the non-custodial parent should pay twenty-two percent
of his AGI for the support of three minor children. Miss. Code Ann. § 43-19-101(1) (Rev.
2015). It is uncontested that Chris’s income exceeds $100,000 per year. Section
43-19-101(4) provides that “[i]n cases in which the [AGI]. . . is more than One Hundred
Thousand Dollars ($100,000) . . . the court shall make a written finding in the record as to
whether or not the application of the guidelines established in this section is reasonable.”
(Emphasis added). Chris argues that the chancellor’s award was unreasonable, and she did
11
not provide findings as to why the award was reasonable in accordance with section 43-19-
101.6
¶29. Chris asserts that the payments should have been established at twenty-two percent
of his base monthly income, with an additional twenty-two percent to be paid from any
amount received as a bonus or from the exercise of a stock option. However, the chancellor
averaged Chris’s AGI for the four years preceding the year of the divorce by including
amounts he received as bonuses and from the exercise of stock options. Chris contends that
the chancellor erred in this regard. He asserts that he had a net income of $7,558.18 per
month and expenses of $5,872.79 which left him with a monthly surplus of only $1,685.39.
He further contends that once he pays the $3,690 monthly child-support award, the health
insurance premiums, plus seventy-five percent of all out-of-pocket medical expenses for the
children, he will be at a huge deficit each month. As such, he requests that this Court reverse
the child-support award and remand the case for a proper application of the guidelines to
arrive at the amount of child support that is due.
¶30. Emma responds that the chancellor was within her discretion in not making reductions
to Chris’s child support obligations. “When a chancellor makes a ruling without specific
6
The record reflects that in his posttrial motion for reconsideration, seeking to alter
or amend the judgment, and for relief from judgment, Chris requested that the chancellor
amend her order in accordance with Mississippi Code Annotated Section 43-19-101(4) and
make a written finding in the record and discuss the reasonableness of the child support
award. In the chancellor’s order denying Chris’s motion, the chancellor failed to specifically
address Chris’s request for written findings. Instead, she held that “[t]he [c]ourt’s ruling on
child support, child custody, and attorney’s fees was proper.”
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findings of fact, this [c]ourt assumes that the chancellor resolved any factual disputes in favor
of the appellee.” Bredemeier v. Jackson, 689 So. 2d 770, 777-78 (Miss. 1997). Section
43-19-101(3)(a) instructs that gross income is calculated “from all potential sources that may
reasonably be expected to be available to the absent parent.” In Roberts v. Roberts, 924 So.
2d 550, 553 (¶5) (Miss. Ct. App. 2005), this Court held that “[b]ecause Mr. Roberts’[s]
income fluctuated, the chancery court used a three-year income average to determine the
applicable amount of child support. Where income tends to fluctuate, a chancellor may use
income averaging to calculate applicable child support.” Emma asserts in her brief that
Chris’s total average AGI over 2013, 2014, 2015, and 2016 was $201,425.97. When divided
over twelve months, his monthly AGI equals $16,785.50. Twenty-two percent of that
monthly AGI equals $3,692.81. The chancellor slightly reduced the award to $3,690.00 for
the sake of having an even number, which resulted in her award amount.
¶31. The chancellor found that Chris reasonably expected to receive bonuses and stock
options, because Chris acknowledged that he received them every year. The chancellor
stated in her findings that if Chris no longer receives bonuses or other incentives, he may
petition the court to adjust his child-support obligation based upon a material change in
circumstances. If Chris desired to claim financial inability to pay the child support that the
chancellor awarded, it was his burden to establish that claim. Masino v. Masino, 829 So. 2d
1267, 1273 (¶28) (Miss. Ct. App. 2002).
¶32. Since Chris’s income exceeded $100,000, the chancellor was required to make
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written findings as to whether the application of the guidelines was reasonable—in
compliance with section 43-19-101(4). The chancellor failed to do so. Therefore, we reverse
that aspect of the chancellor’s judgment and remand this issue for a determination as to
whether the statutory guidelines should apply along with a determination of the amount of
support to be paid.
III. Tax Exemptions
¶33. Chris argues that Emma had no significant income from which she would have any
advantage in claiming the dependent child exemption, so the chancellor erred in not awarding
him the deductions. The chancellor’s original order was silent as to the tax exemptions. A
decision that does not address the exemption leaves the deduction with the custodial parent.
See Deborah H. Bell, Mississippi Family Law §13.08[1] at 451 (2d ed. 2011).
¶34. Emma responds that the chancellor was not required to give him the exemption;
therefore, she did not err in failing to do so. In response to Chris’s argument that she “had
no significant income, which would make it advantageous to her to be able to claim the
exemption,” Emma asserts that income is not the deciding factor when it comes to deciding
who should be given the exemption. Also relevant is the “non-economic but nevertheless
valuable contributions contributed by the custodial parent.” Louk v. Louk, 761 So. 2d 878,
884 (¶17) (Miss. 2000). Notwithstanding that Emma did not earn as much money as Chris,
she was still bringing in income through her work as a full-time licensed practical nurse
(LPN). This Court in Neelly v. Neelly, 213 So. 3d 539, 542 (¶9) (Miss. Ct. App. 2016),
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discussed similar circumstances—although not directly on point—and listed examples of
factors that chancellors could consider in awarding income-tax exemptions:
[I]ncome-tax exemptions are typically most valuable to the party in the higher
tax bracket and can be worthless to a party with little or no income.
Chancellors can construct an order for child support that equitably takes into
consideration which party received the benefit of the tax advantage, while
maximizing the overall income available to benefit the child. [Nichols v.
Tedder, 547 So. 2d 766, 776 (Miss. 1989)]; see also Louk, 761 So. 2d at 884
(¶17) (enumerating various factors chancellors can consider when allocating
tax exemptions, including noneconomic contributions by the custodial parent,
the value of the exception at the marginal tax rate of each parent, the income
of each parent, the age of the child and how long the exemption will be
available, the percentage of the cost of supporting the child borne by each
parent, and the financial burden assumed by each parent under the property
settlement in the case).
As the higher-income earner, the exemption would have been more beneficial to Chris. Even
so, we cannot say that the chancellor abused her discretion in awarding Emma the tax
exemptions for the children.
IV. Retroactive Child Support
¶35. The chancellor ordered Chris to pay retroactive child support for the months of May
2015 through December 2016 (with the exception of July and August in 2016 when Emma
was living in the home). In ordering the retroactive child support, the chancellor stated:
So I am going to award retroactive child support for the [seventeen] months
that she has been -- they have been separated. That two of those months, I
mean, they basically been separated for 19 months through December. July,
and August she was living back in the home, so I’m not using those months.
So the retroactive child support is $49,730[,] and I’m giving Emma a judgment
against Chris in that amount[,] and the judgment is to be payable within [ten]
days of the date of this order. Chris has got quite a bit of money from the
stock option that he exercised in an account, so he’s got the ability to pay that
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immediately.
A temporary order entered by the court on April 5, 2016, stated that any issues concerning
retroactive support would be considered at trial. The chancellor, in accordance with her
express intent to do so, considered and awarded retroactive child support following the trial
on the merits. Emma asserts that the chancellor’s award was not an abuse of discretion
because she applied the same child-support calculation that was set based upon a reasonable
average of Chris’s AGI, and she applied credits for support Chris had already paid under the
prior order in place. She further asserts that Chris is not entitled to receive credit for amounts
she received that were not for the support of their children. She also contends that Chris did
not make an on-the-record objection challenging the award and should be prevented from
addressing this issue on appeal. See Strong v. Strong, 981 So. 2d 1052, 1054 (¶¶13-15)
(Miss. Ct. App. 2008).
¶36. Chris argues that the calculation was incorrect because the chancellor used the
incorrect AGI and she did not give him proper credit for other money that he paid Emma
during that time period. Chris also alleges that Emma received a partial distribution of the
stock sold in 2016 in the amount of $29,000 and tax refunds during the divorce action in the
amount of $7,000. Additionally, he argues that Emma never specifically requested any
retroactive child support in any pleadings; therefore, the chancellor should not have included
it. Since we are reversing the child-support award because the chancellor failed to make
written findings as to whether the application of the guidelines was reasonable, the issue as
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to the amount of retroactive child support shall be subject to the same review and reversed
as well.
V. W-2 Deductions
¶37. Chris argues that the chancellor erred in not allowing him to present additional
testimony regarding the explanation of the numbers on his W-2. During the hearing on his
motion for reconsideration, he requested that the chancellor allow him to introduce his 2016
year-end pay stub into evidence and allow an additional witness to testify and explain what
the different numbers on this pay stub meant. During trial testimony, the parties disagreed
regarding the meaning of some of the numbers on Chris’s W-2. He contends that if the
chancellor would have allowed him to introduce his year-end pay stub and the testimony of
the additional witness, the chancellor could have arrived at the correct child-support amount.
¶38. Emma argues that no matter how the amounts are classified—whether as deferred
compensation or allocations toward health insurance coverage—the total amount still
qualifies as income for purposes of calculating Chris’s child-support obligation. She further
argues that subsection three of Rule 59 is the only feasible place that Chris’s claim could be
substantiated, but there was no error of law and there is no manifest injustice that justified
granting his motion.
¶39. A chancellor’s denial of a motion for reconsideration under Rule 59 is reviewed for
an abuse of discretion. Ferguson v. Miss. Farm Bureau Cas. Ins. Co., 147 So. 3d 374, 377
(¶11) (Miss. Ct. App. 2014). We do not find that the chancellor abused her considerable
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discretion when she refused to reopen the case and allow additional testimony or
documentary evidence. Chris has offered no reason as to why he could not have offered the
additional witness and documentary evidence during the initial trial proceedings. We
therefore agree that the chancellor did not abuse her discretion in denying his motion with
respect to this issue. “The [c]ourt has the discretion to order a rehearing or to alter or amend
the judgment if convinced that a mistake of law or fact has been made, or that injustice would
attend allowing the judgment to stand.” Roebuck v. Massey, 741 So. 2d 375, 387-88 (¶38)
(Miss. 1999) (quoting Mayoza v. Mayoza, 526 So. 2d 547, 549 (Miss. 1988)).
VI. Photograph Evidence
¶40. Next, Chris contends that the chancellor erred in not admitting photographs of the
condition of the marital home into evidence. The chancellor refused to allow the
photographs into evidence unless Chris could state the precise date the photographs had been
taken. Chris had previously testified that he began taking the photographs at the time Emma
filed for divorce, but he did not have his cell phone with the photographs present, and the
chancellor did allow him more time to retrieve it. He contends that he satisfied the
requirements of Mississippi Rules of Evidence 1001(d) and 901(b)(l) and therefore the
chancellor should have allowed the photographs into evidence.
¶41. A chancellor’s decision not to admit evidence will not be overturned unless the
chancellor abused her discretion to such an extent that a party has been prejudiced. In re
Estate of Laughter, 23 So. 3d 1055, 1064 (¶42) (Miss. 2009). By asking Chris to authenticate
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the photographs by verifying the dates they were taken, the chancellor was merely requiring
that Chris produce sufficient evidence to support a finding that the photographs were what
he claimed they were.
¶42. We find error, albeit harmless error, in the chancellor not admitting the photographs
into evidence. Mississippi Rule of Evidence 901(a) states: “To satisfy the requirement of
authenticating or identifying an item of evidence, the proponent must produce evidence
sufficient to support a finding that the item is what the proponent claims it is.” Chris testified
that he started taking the photographs from the time that Emma filed for divorce, and he
testified that he took all the pictures himself. He further testified that they depict the
condition of the marital home during a time that Emma was living there. We find that his
testimony was sufficient to satisfy Rule 901(a) and that the court should have admitted the
photographs. Even so, “[i]n order for a case to be reversed on the admission or exclusion of
evidence, it must result in prejudice and harm or adversely affect a substantial right of a
party.” Bower v. Bower, 758 So. 2d 405, 415 (¶46) (Miss. 2000). Although we find error,
we deem it to be harmless. “The chancellor has the sole responsibility to determine the
credibility of witnesses and evidence, and the weight to be given each.” Lee v. Lee, 798 So.
2d 1284, 1288 (¶14) (Miss. 2001). With this precedent in mind, we do not find that the
exclusion of the photographs would have affected the chancellor’s custody determination.
VII. Contempt
¶43. “The standard of review for civil contempt on appeal is manifest error, meaning the
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factual findings of the chancellor are affirmed unless manifest error is present and apparent.”
Stallings v. Allen, 201 So. 3d 500, 504 (¶14) (Miss. Ct. App. 2016) (internal quotation marks
omitted). The Mississippi Supreme Court has held that contempt must be willful. Mizell v.
Mizell, 708 So. 2d 55, 64 (¶52) (Miss. 1998). “A contempt citation is proper only when the
contemnor has willfully and deliberately ignored the order of the court.” Id. (quoting Cooper
v. Keyes, 510 So. 2d 518, 519 (Miss. 1987)). “It is a defense to a contempt proceeding that
the person was not guilty of willful or deliberate violations of a prior judgment or decree.”
Id. (citing Dunaway v. Busbin, 498 So. 2d 1218, 1222 (Miss. 1986)). Emma filed a motion
to hold Chris in contempt for his selling of 19,000 shares of stock for approximately
$250,000 in violation of the protective order.
¶44. Chris contends that, based on the language of the orders, he did not believe he was
violating the previous court orders when he exercised the stock options. He reasons that the
chancellor should have denied Emma’s request that he be found in contempt. The language
in both orders states that “both parties are restrained and enjoined from transferring,
assigning, borrowing against, concealing or in any way dissipating or disposing of any
marital property.” The chancellor stated that Chris “could have come in and just filed a
petition [and] asked the [c]ourt to do it just as they had or discussed it. The lawyers
discussed it and signed an agreed order allowing him to do it.” Since he did not get the
court’s permission, she found him in contempt for violating the temporary order.
¶45. We find that the chancellor erred in finding Chris in contempt. As stated, one must
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willfully violate an unambiguous order to be held in contempt. Also, the order of which the
defendant is accused of willfully disobeying must be clear and unambiguous. The record is
clear that the ultimate purpose of the orders was to prevent any dissipation of assets, and that
did not happen. It is true, as the chancellor found, that Chris violated the express language
of the order prohibiting the transfer of assets, but the transfer language must be read in
conjunction with the other language: “or in any way dissipating or disposing of any marital
property.” Given the fact that the chancellor found that Chris’s action in exercising the stock
option did not constitute a dissipation of the assets, we find the chancellor erred in finding
Chris in contempt. In finding Chris in contempt, this is what the chancellor said regarding
dissipation:
And [Chris] did—in fact, he did not dissipate these assets. I do want to give
[Chris] credit for that. And [Chris’s attorney] argued very strongly on
[Chris’s] part that he did not dissipate these assets. And, in fact, no harm was
done. In fact, [Chris] testified that the price of the stock has gone down, that
he actually preserved—his argument is that he actually preserved an asset of
the estate by exercising the stock option and selling the stock at the time that
he did.
As noted, the chancellor said that if Chris had filed a petition to sell the stock, she would
have allowed it. According to Chris, he saved approximately $40,000 by taking the action
that he did, and this assertion is not disputed in the record. Based on the wording of the
orders, it is clear to us that Chris or any reasonable person could conclude that the purpose
of the orders was to preserve the assets and to not dissipate any marital assets. A plain
reading of the text of the orders could be interpreted as prohibiting transfers that would
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dissipate martial property. Because Chris’s action actually preserved the assets of the marital
estate—which was the purpose of the orders—we find that it was error to hold him in
contempt. Therefore, we reverse and render that portion of the judgment finding him in
contempt.
VIII. Attorney’s Fees7
¶46. “The award of attorney’s fees in divorce cases is left to the discretion of the
chancellor, assuming [s]he follows the appropriate standards.” Speights v. Speights, 126 So.
3d 76, 81 (¶15) (Miss. Ct. App. 2013) (quoting Creekmore v. Creekmore, 651 So. 2d 513,
520 (Miss. 1995)). A chancellor’s award or denial of fees should be supported by findings
of fact regarding the McKee8 factors. Grice v. Grice, 726 So. 2d 1242, 1255 (¶51) (Miss. Ct.
App. 1999); Weeks v. Weeks, 29 So. 3d 80, 92-93 (¶¶57-59) (Miss. Ct. App. 2009) (denial
of fees remanded for failure to consider the McKee factors). Chris argues that the chancellor
simply stated that according to the McKee factors, Emma was not able to pay her attorney,
and the chancellor did not discuss the factors in detail on the record. He further argues that
Emma never proved that she could not pay her attorney’s fees. “The party seeking attorney’s
fees is charged with the burden of proving inability to pay; usually where the party is able to
pay his or her own attorney’s fees, an award of such fees is inappropriate.” Duncan v.
7
In a motion to supplement the record on appeal, Chris argues that while this appeal
was pending, Emma filed for bankruptcy and obtained a discharge of the attorney’s fees at
issue. The chancery court should address this issue on remand.
8
McKee v. McKee, 418 So. 2d 764, 767 (Miss. 1982) (outlining guidelines to be
considered by the court when determining the reasonableness of attorney’s fees).
22
Duncan, 915 So. 2d 1124, 1128 (¶16) (Miss. Ct. App. 2005) (citing Riley v. Riley, 846 So.
2d 282, 287-88 (¶23) (Miss. Ct. App. 2003)).
¶47. Although the chancellor mentioned the McKee factors, she provided no specific
explanation for her finding that Emma could not pay her attorney, especially coupled with
her finding that Emma was stable and working. In McKee, 418 So. 2d at 767, the supreme
court held that the following factors provide the guidelines to determine the reasonableness
of attorney’s fees in domestic cases:
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 of the questions at issue, as well as the degree
of responsibility involved in the management of the cause, the time and labor
required, the usual and customary charge in the community, and the preclusion
of other employment by the attorney due to the acceptance of the case.
¶48. In discussing the issue, the chancellor stated:
With regard to attorney’s fees, I know Chris has asked for an award of
attorney[’]s fees that I am denying. Chris definitely has the ability to pay his
own attorney’s fees. I am awarding Emma . . . attorney’s fees of, according to
the attorney’s affidavit of $29,346.06. They have already paid some $12,000
or something. I can’t remember the exact amount. It’s stated on the affidavit.
And this amount has already given Chris credit for that. But according to the
McKee factors, you know, Emma has an inability to pay. Emma does not have
the earning capacity that Chris has. And I know Mr. [Swayze] Alford made
the argument or a statement—I don’t know if it was argument—yesterday that
Emma should not be awarded an attorney’s fee for the divorce because she did
not prevail on the divorce. She was not awarded a divorce. The Court did not
find that the divorce should be granted because I did not find adequate
grounds. However, this divorce has been going on for two years. All four
attorneys, I think that because Ms. [D. Pace] Branan, Mr. Alford and Kayla
[Ware] have been working for [Chris]. Although Ms. Branan has been going
a lot longer[,] and she has been there for the long haul. And Ms. [Malenda]
Meacham has been working for [Emma] for two years now and there’s been
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a lot of water under the bridge. At one time, and for the majority of this time,
Emma was also defending a complaint for divorce because [Chris] had filed
a cross-complaint. She’s also been fighting for her kids and fighting for child
custody and for child support. And so just the fact that she was not awarded
a divorce does not negate the fact that this was a very complicated case. The
exhibits alone indicate that. I mean, I’ve got one huge box of exhibits and then
a stack of exhibits that’s two-feet tall. So certainly the time and effort has
been put into this by Ms. Meacham. This was a very complicated, unique case.
And Emma, prior to just recently, has been a stay-at-home mom and has not
had her own money, her own earnings. And so I feel like this is an appropriate
case to award the attorney’s fees. Also, I’m giving her a judg[]ment in that
amount and that is to be payable within 10 days.
¶49. Based on our perusal of the record, the chancellor made no explicit findings
addressing all of the McKee factors, either in her order, or on the record, but it can be
surmised from the chancellor’s statement that she had considered them.9 The more
perplexing question is not the reasonableness of the amount awarded, but the basis for
finding that Emma was not able to pay it. As noted, the chancellor stated: “But according
to the McKee factors, you know, Emma has an inability to pay.” On the question of whether
Emma had the ability to pay her own attorney’s fees, the chancellor offered no analysis of
Emma’s financial condition that would support the conclusion that Emma was unable to pay
them. During the chancellor’s discussion of the custody issue, she stated the following:
“[Emma] has just entered the work force again, but it sounds like she’s got a stable job at this
9
This Court in Evans v. Evans, 75 So. 3d 1083, 1090 (¶25) (Miss. Ct. App. 2011),
stated the following: “While this [C]ourt has held that a chancellor’s failure to apply the
McKee factors is not necessarily itself reversible error, see Miley v. Daniel, 37 So. 3d 84, 87
(¶7) (Miss. Ct. App. 2009), the proof must at least support an accurate assessment of fees
under the McKee criteria.”
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point. And it sounds like she has a stable home at this point.” We note that Emma testified
that she could not pay her attorney’s fees. As stated, the burden was on Emma to prove that
she could not pay her attorney’s fees. Although the decision to award attorney’s fees in a
divorce proceeding is left to the sound discretion of the chancellor, there must be evidence
undergirding the chancellor’s decision that a party is unable to pay her attorney’s fees before
an award can be made. Here, we find the record lacks such evidence. Therefore, we find
that the chancellor erred in awarding attorney’s fees to Emma for the divorce proceeding,
which ultimately resulted in Emma’s complaint for the divorce being dismissed.
Accordingly, we reverse and remand the chancellor’s award of attorney’s fees for the
chancellor to determine whether Emma has the inability to pay and to apply the McKee
factors with supporting findings.
¶50. The chancellor also awarded Emma $2,500 in attorney’s fees for the contempt action
that she filed against Chris. Since we have found that the chancellor erred in finding Chris
in contempt, we also reverse and render this award.
¶51. AFFIRMED IN PART, REVERSED AND REMANDED IN PART, AND
REVERSED AND RENDERED IN PART.
BARNES, C.J., J. WILSON, P.J., GREENLEE, WESTBROOKS, TINDELL,
McDONALD, LAWRENCE, McCARTY AND C. WILSON, JJ., CONCUR.
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