Opinion

Watts v. Watts

  • 99 So. 3d 751
  • 2012 Miss. App. LEXIS 54
  • 2012 WL 181430
Court
Court of Appeals of Mississippi
Filed
Jan 24, 2012
Status
Published
Author
Russell
On the bench
Barnes, Carlton, Fair, Griffis, Irving, Ishee, Lee, Maxwell, Only, Roberts, Russell
Cited by
10 cases
Authority
More cited than 18.0%

finding no abuse of discretion in award of permanent alimony to wife where “[t]he record shows that the chancellor noted [the husband’s] earning capacity of $150,000 per year based on his master’s degree in nurse anesthesia, while estimating [the wife’s] earning capacity to be at best $43,000 per year”

How later courts described this case

  • finding no abuse of discretion in award of permanent alimony to wife where “[t]he record shows that the chancellor noted [the husband’s] earning capacity of $150,000 per year based on his master’s degree in nurse anesthesia, while estimating [the wife’s] earning capacity to be at best $43,000 per year”
  • affirming a permanent-alimony award of $1,000 per month Where the payor spouse had an earning capacity of $150,000 per year where the parties shared joint physical and legal custody of their twelve-year-old son following a roughly twelve-year marriage and the wife was awarded one-half of all marital assets, including the husband’s retirement. Id. at 755, 761 (¶¶2-3, 29)
  • finding no abuse of discretion in the chancellor’s award of permanent alimony where the parties separated after twelve years and agreed to a divorce after thirteen years

Written by the judges who cited it.

The opinion

RUSSELL, J.,

concurring in part and dissenting in part:

¶ 52. I concur with the majority regarding the award of joint legal and physical custody to Thomas and Kimberly. I also concur with the majority regarding the chancellor’s alimony award. However, I dissent as to the chancellor’s award of attorney’s fees to Kimberly.

¶ 53. “An award of attorney’s fees ... is entrusted to the sound discretion of the chancellor.” Stigler v. Stigler, 48 So.3d 547, 555 (¶ 27) (Miss.Ct.App.2009). See also McKee v. McKee, 418 So.2d 764, 767 (Miss.1982). However, “[a]ttorney’s fees may only be awarded to a party who has shown an inability to pay.” Rhodes v. Rhodes, 52 So.3d 430, 449 (¶ 79) (Miss.Ct.App.2011) (citing Voda v. Voda, 731 So.2d 1152, 1157 (¶ 29) (Miss.1999)). “A trial court abuses its discretion by awarding attorney’s fees without first finding that the party is unable to pay the fees.” Hankins v. Hankins, 729 So.2d 1283, 1286 (¶ 13) (Miss.1999).

¶ 54. In the instant case, Kimberly failed to demonstrate an inability to pay her own attorney’s fees. Further, the chancellor did not make any finding as to Kimberly’s inability to pay. In fact, the chancellor specifically noted that each party was gainfully employed. Therefore, the chancellor’s award of attorney’s fees was manifestly wrong and an abuse of discretion. See Ladner v. Ladner, 49 So.3d 669, *767 672-73 (¶ 17) (Miss.Ct.App.2010) (reversing an award of attorney’s fees where there was no finding of an inability to pay).

¶ 55. The majority notes that an award of attorney’s fees and expenses are allowed “where a party’s intentional misconduct causes the opposing party to expend time and money needlessly[.]” State v. Blenden, 748 So.2d 77, 87 (¶33) (Miss.1999); Mabus v. Mabus, 910 So.2d 486, 488-92 (¶¶ 7-24) (Miss.2005). However, the chancellor never made a specific finding of “intentional misconduct” which would warrant an award of attorney’s fees to Kimberly. Thomas filed the TRO following a domestic altercation between him and Kimberly. Kimberly called the police, but she was the one arrested. Therefore, in my view, Thomas was justified in filing for a TRO.

¶ 56. In this case, if the chancellor’s statement — that he awarded the attorney’s fees “on the basis of the TRO obtained by [Thomas] and ‘in dealing with the consequences of that [TRO]’ ” — can be inferred to be a finding of “intentional misconduct,” then no finding of an inability to pay is required. A review of the record does not reflect substantial evidence to support the chancellor’s assessment of $15,000.00 in attorney’s fees for Kimberly’s defense of the TRO. As such, I would reverse the chancellor’s award of attorney’s fees to Kimberly and remand this case for a computation of attorney’s fees to reflect the actual amount incurred in defending the TRO.

IRVING, P.J., JOINS THIS OPINION.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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