Amber Nicole Hewlett Brown v. James Edwin Hewlett, III

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

17
1263, 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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