John Mark Riley, Jr. v. Betty Merandy Russell Riley

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2015-CA-00054-COA

JOHN MARK RILEY, JR. APPELLANT

v.

BETTY MERANDY RUSSELL RILEY APPELLEE

DATE OF JUDGMENT: 12/22/2014
TRIAL JUDGE: HON. DAVID SHOEMAKE
COURT FROM WHICH APPEALED: LAWRENCE COUNTY CHANCERY
COURT
ATTORNEYS FOR APPELLANT: JOSEPH PRESTON DURR
CHELI KELLEMS DURR
W. BRADY KELLEMS
ATTORNEY FOR APPELLEE: CHRISTOPHER RANDALL PURDUM
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
TRIAL COURT DISPOSITION: APPELLANT FOUND TO BE IN
CONTEMPT OF A PRIOR ORDER OF THE
CHANCERY COURT, AND ATTORNEY’S
FEES AWARDED TO THE APPELLEE
DISPOSITION: AFFIRMED - 08/09/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

EN BANC.

JAMES, J., FOR THE COURT:

¶1. John Mark Riley Jr. appeals from the trial court’s order granting, in part, Betty

Merandy Russell Riley’s petition for contempt and other relief. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. John and Betty were married on April 5, 1996. Four children were born to the

marriage. The parties were divorced on July 24, 2006. The judgment of divorce

incorporated and ratified a child-custody, child-support, and property-settlement agreement
that had been entered into by the parties. On January 3, 2012, the parties entered into an

agreed order of modification.

¶3. On July 1, 2014, Betty filed a petition for contempt and other relief claiming that John

was in contempt of the agreed order of modification by failing to provide health insurance

for their four minor children. Betty also claimed that John was in contempt for failing to pay

his portion of the four minor children’s private-school tuition to Prentiss Christian School.

Betty also sought reimbursement for certain medical expenses and extracurricular-activity

expenses of the children. On September 15, 2014, John filed an answer and petition for

modification and contempt. A hearing was held on November 17, 2014.

¶4. After considering all the evidence and testimony that had been presented, as well as

arguments of counsel, the trial court found John to be in open and willful contempt of the

agreed order of modification. The trial court found that Betty had paid $30,300.40 for their

children’s tuition at Prentiss Christian School. The trial court determined that John had not

paid any tuition whatsoever for their children. The trial court ordered John to pay

$15,150.20, representing half of the tuition payments Betty had paid.

¶5. The trial court also found that John failed to provide health insurance for the children

as required by the agreed order of modification. The trial court ordered John to provide the

same health insurance for the children that had been provided while he was at his former

employment. The trial court denied Betty's claims against John for the children’s unpaid

medical bills and extracurricular-activity costs. The trial court dismissed John's petition for

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modification and contempt.1

¶6. The trial court also ordered John to pay $2,000 in attorney's fees “for the necessity of

[Betty] filing [her contempt] action.” The trial court ordered John to be incarcerated in the

county jail until he purged himself of his contempt by paying the sum of $17,150.20 and

providing health insurance for the children.

¶7. John appeals from the trial court’s order raising two issues for this Court’s review: (1)

whether the trial court erred in finding John in open and willful contempt for his failure to

pay his children’s private-school tuition; and (2) whether the trial court erred in awarding

attorney’s fees to Betty.

STANDARD OF REVIEW

¶8. “The scope of review in domestic cases is limited.” Bounds v. Bounds, 935 So. 2d

407, 410 (¶6) (Miss. Ct. App. 2006). This Court will not reverse the finding of the trial court

unless it abused its discretion, was manifestly wrong or clearly erroneous, or applied an

erroneous legal standard. Id. (citing Denson v. George, 642 So. 2d 909, 913 (Miss. 1994)).

¶9. “Contempt matters are committed to the substantial discretion of the trial court which,

by institutional circumstance and both temporal and visual proximity, is infinitely more

competent to decide the matter than are we.” Williamson v. Williamson, 81 So. 3d 262, 266

(¶11) (Miss. Ct. App. 2012) (citing Morreale v. Morreale, 646 So. 2d 1264, 1267 (Miss.

1994)). “Contempt is to be determined upon the facts of an individual case and is a matter

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John did not raise an issue on appeal regarding the trial court ordering him to
provide health insurance nor the dismissal of his petition for modification and contempt.
Also, Betty did not raise an issue on appeal regarding the trial court’s decision denying her
claim for the payment of medical bills and extracurricular-activity costs.

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for the trier of fact.” Id. at 266-67 (¶11) (citing Milam v. Milam, 509 So. 2d 864, 866 (Miss.

1987)). "This Court will not reverse a contempt citation where the [trial court’s] findings are

supported by substantial credible evidence." Witters v. Witters, 864 So. 2d 999, 1004 (¶18)

(Miss. Ct. App. 2004) (citing Varner v. Varner, 666 So. 2d 493, 496 (Miss. 1995)).

DISCUSSION

I. Whether the trial court erred in finding John in contempt for
failure to pay for his children’s private-school tuition.

¶10. John argues the trial court erred in finding him in contempt for failure to pay for his

children’s private-school tuition. Specifically, John argues that a condition precedent of the

agreed order of modification was not met because there was no evidence presented that the

children chose to go to Prentiss Christian School.

¶11. The following portion of the agreed order of modification outlined John and Betty’s

obligations relating to their children’s private-school enrollment and tuition:

In August of 2012, if the four minor children of the parties choose to attend
Prentiss Christian School in Prentiss, Mississippi, the minor children shall be
enrolled by Father, listed under Father’s account at the school. Mother shall
be responsible for one-third of the tuition and other fees associated therewith,
and Father shall be responsible for one-third of the tuition and other fees
associated therewith. Candy Riley shall be responsible for one-third of the
tuition and other fees associated therewith for her children. In the event of a
divorce of Candy and John Mark Riley, then John and [Betty] will split costs
of the four kids that they have together.

¶12. The agreed order included a nonparty, Candy Riley, who is John’s current wife. The

agreed order contemplated that after the children were all enrolled under a single account,

Candy would pay the remaining one-third of the children’s tuition because she had two

children, who were also attending Prentiss Christian School. This arrangement was to be

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financially beneficial to John, Candy, and Betty. Evidence presented at the hearing showed

that Candy, John, and Betty would be able to receive a discounted group tuition rate by John

and Betty’s four children and John’s two stepchildren with Candy all being listed under a

single account.

¶13. Betty testified that John was the only individual who had the authority to list all six

children under a single account under his name due to his relationship to the children as their

father and stepfather. Candy testified that she withdrew her children from Prentiss Christian

School before the 2012-2013 school year.

¶14. John never enrolled his two stepchildren and four children with Betty and listed them

on his account to obtain the discounted group tuition rate. John failed to comply with the

agreed order of modification by not enrolling his and Betty’s children and listing them under

his account. Furthermore, evidence was presented that John did not pay any amount of

tuition for his four children with Betty. Because John’s wife, Candy, withdrew her children

from Prentiss Christian School before the 2012-2013 school year, she did not make any

contribution to the tuition payments either.

¶15. The trial court found that the children had chosen to go to Prentiss Christian School

because Betty testified that her and John’s children had attended Prentiss Christian School

since 2010. Therefore, John’s argument about the condition precedent not being met because

the children had not chosen to attend the school is without merit.

¶16. The trial court found that John was responsible for one-half the tuition costs that had

been paid by Betty, rather than one-third, because Candy’s two children were withdrawn

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from the school prior to the 2012-2013 school year. Accordingly, the trial court ordered John

to pay $15,150.20 to Betty, representing one-half of the tuition payments that she had paid

for her and John’s four children to attend the school.

¶17. “It is well settled that [trial courts] are afforded wide latitude in fashioning equitable

remedies in domestic relations matters.” Finch v. Finch, 137 So. 3d 227, 232 (¶10) (Miss.

2014). We find that the trial court did not abuse its discretion in finding John in contempt

for failing to pay for his children’s private-school tuition and ordering him to pay one-half

of the tuition that Betty had paid. The trial court fashioned an equitable remedy by ordering

John to pay one-half of the tuition costs rather than one-third as mentioned in the agreed

order of modification. Certainly this remedy avoided an inequitable result, because John was

in contempt by not enrolling his children and listing them under his account; and only Betty

had paid for their children’s tuition. This assignment of error is without merit.

II. Whether the trial court erred in awarding attorney’s fees to Betty.

¶18. John argues that the trial court erred in awarding attorney’s fees to Betty because there

was no proof of Betty’s attorney’s fees being presented at the hearing.

¶19. Attorney’s fees are awarded to make the plaintiff whole in contempt actions. Wilson

v. Stewart, 171 So. 3d 522, 529 (¶21) (Miss. Ct. App. 2014) (citing Rogers v. Rogers, 662

So. 2d 1111, 1116 (Miss. 1995)). “When a party is held in contempt for violating a valid

judgment of the court, then attorney’s fees should be awarded to the party that has been

forced to seek the court's enforcement of its own judgment.” Id. (quoting Bounds, 935 So.

2d at 412 (¶18)).

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¶20. In this contempt action, the trial court determined that an award of $2,000 in

attorney’s fees was reasonable based on the pleadings that had been filed and a one-day

hearing. Mississippi Code Annotated section 9-1-41 (Rev. 2014) provides:

In any action in which a court is authorized to award reasonable attorneys’
fees, the court shall not require the party seeking such fees to put on proof as
to the reasonableness of the amount sought, but shall make the award based on
the information already before it and the court’s own opinion based on
experience and observation; provided however, a party may, in its discretion,
place before the court other evidence as to the reasonableness of the amount
of the award, and the court may consider such evidence in making the award.

¶21. In Moseley v. Smith, 180 So. 3d 667, 675 (¶38) (Miss. Ct. App. 2014), this Court

found that, “[w]hile there [was] no itemized bill of the legal services [that the plaintiff’s]

attorney had rendered, the record show[ed] the amount of work [the attorney] performed

filing [a] contempt action, responding to [the defendant’s] motions, and attending a hearing

on [the defendant’s] motion to reconsider.” This Court held: “Under [section 9-1-41], ‘[i]n

any action in which a court is authorized to award reasonable attorneys’ fees,’ such as [a]

contempt action, the party seeking fees does not have ‘to put on proof as to the

reasonableness of the amount sought.’” Id. “ Instead, the court ‘shall make the award based

on the information already before it and the court’s own opinion based on experience and

observation[.]’” Id. (quoting Miss. Code Ann. § 9-1-41).

¶22. Here, the trial court awarded a reasonable amount of attorney’s fees to Betty based on

its experience, observation, and the information before it, i.e., the pleadings and a one-day

hearing. This issue is also without merit.

III. Whether to award Betty appellate attorney’s fees.

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¶23. Betty requests in her brief that this Court award her appellate attorney’s fees of one-

half of $2,000, which was awarded to her by the trial court. Generally, on appeal this Court

awards attorney’s fees of one-half of what was awarded in the trial court. Parker v. Bliven,

59 So. 3d 619, 623 (¶24) (Miss. Ct. App. 2010). In Parker, this Court granted the appellee’s

request on appeal for an award of one-half of the attorney’s fees the trial court awarded due

to the appellant’s contempt. Id.

¶24. Here, the trial court ordered John to pay attorney’s fees because Betty was forced by

John’s open and willful contempt to file a contempt action against him. There was no

discussion by the trial court regarding Betty’s inability to pay her attorney’s fees.

¶25. We acknowledge that this Court has previously declined to award appellate attorney’s

fees where the award at the trial-court level was based solely on the misconduct of the

contemnor and not on the contemnee’s inability to pay attorney’s fees. In Dailey v. McBeath,

151 So. 3d 1038, 1045 (¶22) (Miss. Ct. App. 2014), this Court concluded that the trial court

awarded the mother attorney’s fees due to the father’s willful failure to pay child support.

However, this Court declined to award the mother appellate attorney’s fees of one-half of the

trial-level attorney’s fees because the award at the trial level was based on the misconduct

of the father and not on the mother’s inability to pay her attorney’s fees. Id. at (¶¶22-23).

¶26. The Dailey court looked to two cases to determine whether to award on appeal one-

half of the attorney’s fees awarded at trial. First, this Court looked to Parker. In Parker, this

Court granted the mother’s request on appeal for an award of one-half of the trial-level

attorney’s fees due to the father’s contempt. Parker, 59 So. 3d at 623 (¶24). The Parker

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court did not require that the trial court find or that the mother prove financial need for an

award of appellate attorney’s fees. Id. The Dailey court, however, found the case of

McDonald v. McDonald, 69 So. 3d 61 (Miss. Ct. App. 2011), more persuasive.

¶27. In McDonald, the trial court held Ed McDonald in contempt for failing to pay his

separate-maintenance obligation and awarded attorney’s fees to Ed’s wife, Cindy McDonald.

McDonald, 69 So. 3d at 67 (¶15). On appeal, however, this Court declined to award one-half

of the attorney’s fees awarded to Cindy “[b]ecause precedent dictates that attorney’s fees are

based on ‘necessity rather than entitlement,’ and the chancellor did not find that the

attorney’s fees awarded to Cindy were based on an inability to pay her attorney[.]” Id. at 68

(¶17). The Dailey court relied on McDonald in its decision. We note that Dailey is

distinguishable from the instant case because, as this Court expressly noted, Gregory Dailey

did not challenge the court’s finding of contempt, but rather the modification of child support

and whether the court erred in awarding attorney’s fees for contempt. The attorney’s fees

for contempt awarded in Dailey were a minor issue, presumably not worth half of the amount

of attorney’s fees that the appellee received in the trial court for litigating the merits of the

contempt action.

¶28. The McDonald court correctly pointed out that generally attorney’s fees are awarded

on a need rather than an entitlement basis. Id. There is an important exception, however.

The McDonald court failed to acknowledge that “[t]he purpose of an award of attorney’s fees

in a contempt action is to make the plaintiff whole.” Howard v. Howard, 968 So. 2d 961,

979 (¶48) (Miss. Ct. App. 2007) (citation omitted). To achieve this purpose, “[e]stablishment

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of the McKee factors is not necessary for an contemnee to recover attorney’s fees where the

contemnor has willfully violated a lawful court order.” Id.; McKee v. McKee, 418 So. 2d

764, 767 (Miss. 1982) (stating the factors the trial court should consider when deciding

whether to assess attorney’s fees). Therefore, a trial court does not have to apply the same

considerations in assessing attorney’s fees in contempt actions as ordinarily required for an

assessment of attorney’s fees.

¶29. More importantly, “[a] specific finding of inability to pay is not required when

attorney’s fees are assessed against a party found to be in contempt.” Vincent v. Rickman,

167 So. 3d 245, 251 (¶22) (Miss. Ct. App. 2015) (citing Mount v. Mount, 624 So. 2d 1001,

1005 (Miss. 1993)). Both this Court and the Mississippi Supreme Court have repeatedly

held that a party does not have to demonstrate need for the trial court to award attorney’s

fees. See, e.g., Huseth v. Huseth, 135 So. 3d 846, 860 (¶45) (Miss. 2014) (attorney’s fees

proper in contempt actions regardless of need); Parker, 59 So. 3d at 623 (¶24). Thus, a party

does not have an obligation to prove, nor must a trial court find, financial necessity when

awarding attorney’s fees in contempt actions.

¶30. Based on this precedent, we will not decline to award one-half of the attorney’s fees

awarded below in a contempt action based on the trial court’s failure to determine if the

attorney's fees were financially necessary. We find that the additional burden of proving

financial necessity in a contempt action should not be required. By its nature, a contempt

action does not require financial need and to require this showing on appeal would

effectively prevent an appellate court from awarding these fees in appeals of contempt

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actions. We therefore find that McDonald and its progeny should be disregarded on this

issue.

¶31. Further, while an award of attorney’s fees, even in contempt actions, must be

reasonable, there is no indication that the trial court assessed an unreasonable award below

or that an award of one-half of those fees by this Court would be unreasonable. See Hinds

Cty. Bd. of Sup’rs v. Common Cause of Miss., 551 So. 2d 107, 125 (Miss. 1989) (“[T]he trial

court has discretion to award reasonable attorney fees to make the plaintiff whole and to

reinforce compliance with the judicial decree[.]”).

¶32. Based on the foregoing reasons, we grant Betty’s request for appellate attorney’s fees

of $1,000, or one-half of the attorney’s fees awarded below.

¶33. THE JUDGMENT OF THE CHANCERY COURT OF LAWRENCE COUNTY
IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR,
WILSON AND GREENLEE, JJ., CONCUR.

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