Jordan v. Jordan

FAIR, J.,

specially concurring:

¶ 23. I write separately to address the award of attorney’s fees by a trial judge, a subject the Mississippi Supreme Court has discussed directly only twice in the last five years.

¶ 24. It is not disputed by judges and practitioners that the “best practice” in awarding fees is a ruling by the trial judge in which each of the factors set out in McKee v. McKee, 418 So.2d 764, 767 (Miss.1982), is specifically addressed.

¶ 25. Ronald argues that the lack of such a discussion should require mandatory reversal as is the case in other “factor determination” cases. See Lowrey v. Lowrey, 25 So.3d 274, 280 (¶ 7) (Miss.2009) (factor tests, as provided in Ferguson and Armstrong, must be considered on the record in every case); Powell v. Ayars, 792 So.2d 240, 244 (¶ 8) (Miss.2001) (holding failure of trial court to address each Al-bright factor in awarding custody was reversible error).

¶ 26. Not so, says the Mississippi Supreme Court. In West v. West, 88 So.3d 735, 747 (¶ 57) (Miss.2012), the supreme court upheld the chancellor’s award of attorney’s fees “because it was not manifestly wrong.” The court explained that “[a]l-though the trial judge did not include an analysis of the McKee factors in his judgment, his award was not unreasonable, so we affirm.” Id. at (¶ 58) (citation omitted).

¶ 27. The same standard was applied to a circuit court. In Collins v. Koppers, 59 So.3d 582, 593 (¶ 35) (Miss.2011), the court noted:

The trial judge began his discussion of the reasonableness of the defendants’ attorneys’ fees by noting that his analysis was to be guided by the McKee factors.... The judge noted that this litigation has been ongoing for over four years, requiring several hearings, and the pleadings are voluminous. After considering those factors, the court’s knowledge of what is charged for legal services in the area, and all other [McKee] factors, the trial judge found that the amount of attorneys’ fees submitted by the defendants was reasonable.

¶ 28. While I would continue to recommend an on-the-record analysis of each McKee factor to support an award of attorney’s fees, the failure to do so has not been considered reversible error.

GRIFFIS, P.J., ROBERTS, MAXWELL AND RUSSELL, JJ., JOIN THIS OPINION.