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 W HICH APPEALED: LAW RENCE 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 AW ARDED TO THE APPELLEE DISPOSITION: AFFIRMED - 08/09/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. JAMES, J., FOR THE COURT: ¶1. J o h n M a r k R i ley Jr. appeals f rom the trial court’s o rder granting, in part, B e t t y Merandy R

ussell Riley ’ s petition f

or contem pt and other relief

. Finding no error, w e af

f irm

. FACTS AND PROCEDURAL HISTORY ¶2. John and Betty were ma r r i e d o n A p r i l 5 , 1996. Four children were b orn to the

m arriage. The p arties w ere divorced on J u l y 2 4 , 2006. The judgm e nt of divorce incorporated and ratif

ied a child-custody , child-support, and property -settlem ent agreem entthat had been e ntered i nto by t h e p a r t i e s . On January 3, 2012, the p arties entered into an

agreed order of

m odif ication. ¶3. On July 1, 2 014, Betty f iled a petition f

or contem pt and o ther relief claim ing that John

was in contem

pt of the agreed order of

m odif ication by f

ailing to provide health insurance
f or t heir f our m inor children. B etty also claim ed that J ohn w a s in contem pt f o r f a iling to pay his portion of the f

our m inor c hildren’s private-school tuition to Prentiss Christian School. Betty also sought reim

bursem ent f

or c ertain m edical expenses and extracurricular

- a c t i v i ty
expenses of the c hildren. On Septem ber 15, 2014, John f

iled a n a n swer and petition f or

m odif ication and contem

pt. A hearing was held on Novem ber 17, 2014. ¶4. Af ter considering all the evidence and testim ony that h ad been presented, as well as
argum ents of counsel, the trial court f ound J ohn to be in open and willf ul c ontem pt o f the agreed order of m odif

ication. The trial court f

ound that Betty h ad paid $ 30,300.40 f or their children’s tuition at Prentiss Christian School. The trial court determ ined that John had not paid any tu i t i on whatsoever f or their children. The trial court ordered J ohn to pay $15,150.20, representing half of the tuition pay

m ents Betty

had paid. ¶5. The trial court also f ound that John f

ailed to provide health insurance f or the children

as r equired by the agreed order of m odif ication. T he t rial court ordered John t o p rovide the

sam e health insurance f

o r t h e c hildren that had been provided while he was at his f orm er

em ploy m ent. The t rial c ourt denied B e tty ' s claim s against John f o r t he c hildren’s unpaid

m edical bills a nd extracurricular-activity costs. The trial court dism issed John' s petition f or

2m odif

ication and contem

pt. 1 ¶6. The t rial court also o rdered John to pay $2,000 in attorney ' s f ees “f or the necessity of [ Betty ] f i ling [ her contem

pt] action.” The trial court ordered John to be i ncarcerated in the county jail until he purged h im self of his contem p t by pay ing the sum o f $ 1 7 , 1 50.20 and providing health insurance f or the children. ¶7. John appeals f

rom the trial court’s order r aising two issues f or this Court’s review: (1) whether the trial court erred in f inding John in open and willf ul contem pt f or his f ailure to
pay his c hildren’s private-school tuition; and (2) whether t h e trial c ourt erred in awarding attorney ’s f

ees to Betty

. STANDARD OF REVIEW ¶8. “The scope of r e view in dom estic cases is lim ited.” B o u n d s v. B ounds , 935 So. 2d 407, 410 (¶6) (Miss. Ct. App. 2006). T his Court will not reverse the f inding of the trial court unless it ab u s e d i ts d iscretion, was m anif estly w rong or clearly erroneous, or applied an

erroneous legal standard. I d

. (citing Denson v. George , 642 So. 2d 909, 9 13 (Miss. 1994)). ¶9. “Contem

pt m atters are com m itted to the substantial discretion of t he t rial court which, by institutional circum stance and both tem poral and visual proxim ity , is inf i nitely m ore

com petent to decide t he m atter than are we.” W illiamson v. W

illiamson , 81 S o. 3d 262, 266 (¶11) (Miss. Ct. A pp. 2012) (citing Morreale v. Morreale , 646 S o . 2 d 1 2 6 4 , 1267 (Miss. 1994)). “ Contem

pt is to be determ ined upon the f acts of a n individual case and is a m atter

1 J o h n d id n o t r aise an is s u e o n ap p eal reg ard in g th e trial co u rt o r d erin g h im to p ro v id e h e alth in su ran c e n o r th e d ism issal o f h is p etitio n f o r m o d if icat i o n an d co n tem

p t. A l so , B etty d id n o t raise an i ssu e o n ap p eal reg a rd in g th e t rial co u rt’s d ecisio n d en y in g h er claim f o r th e p ay m en t o f m ed i cal b ills an d ex tracu rricu lar-activ ity co s ts. 3f

or the trier of f

act.” Id. a t 266-67 (¶11) (citing Milam v
. Milam , 509 So. 2d 864, 866 (Miss. 1987)). "This Court will not reverse a contem pt citation where the [ trial court’s] f indings are supported by substantial c redible evidence." W itters v. W

i tters , 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 t r ial cou r t e rred in finding John in contem pt for failure to pay for his children’s private-school tuition. ¶10. John argues the trial court erred in f inding him in c o ntem

pt f or f ailure to p ay f

or his children’s private-school tuition. Specif ically , John argues that a condition precedent of the agreed order o f m odif

ication w as not m et because there was no evidence p resented that the children chose to go to Prentiss Christian School. ¶11. The f

ollowing portion of the agreed order of m odif ication outlined John and Betty ’s obligations relating to their children’s private-school enrollm ent and tuition:
In August of 20 1 2 , i f the f our m inor children of t he parties choose to attend Prentiss Christian School in Prentiss, Mississippi, the m inor children shall be enrolled by F ather, listed u nder Father’s account at the school. Mother shall be responsible f

or one-third of t he tuition and o ther f ees associated therewith, and F ather shall be responsible f or one-third of the tuition a n d o t h er f ees associated therewith. C andy Riley shall b e r e sponsible f or one-third of the tuition and other f

ees associated therewith f or her c hildren. In t he event of a divorce of C andy and John Mark Riley , then John a nd [ Betty ] will split costs of the f our kids that they

have together. ¶12. The agreed o rder i ncluded a nonparty , Candy R iley , who is John’s current wif e. T he agreed order contem

p lated th a t a f

ter the children were all enrolled under a single account, C a n d y w o u l d pay the rem aining one-third of t he children’s tuition because s h e had t wo children, who were also attending P r e n t i s s Christian School. This a rrangem ent was to be

4f

inancially benef

icial to J ohn, Candy , and Betty

. E vidence presented at the hearing showed that Candy , John, a nd Betty w ould be able to receive a discounted group t uition rate by John and Betty ’s f

our children and John’ s t w o stepchildren with Candy all being listed under a single account. ¶13. Betty

testif ied that John was the only individual who had the a u thority to list all six children under a single account under his nam e due to his relationship to the children as their
f ather and stepf

ather. Candy testif

ied that she withdrew her c hildren f rom P rentiss Christian School bef

ore the 2012-2013 school y ear. ¶14. John never enrolled his two stepchildren and f o ur children with Betty a nd listed them

on his a ccount t o obtain the discounted group tuition rate

. J o h n f ailed to com

ply with the agreed order of m odif

ication by not enrolling his and B etty ’s children a nd listing them under his account. Furtherm ore, evidence was p r e s e n t e d t hat John did not pay any am ount of tuition f or his f our children with Betty

. Because John’s wif e, Candy , withdrew her children
f rom Prentiss Christian School bef ore the 2 0 1 2

- 2 0 1 3 school y ear, she did not m ake any contribution to the tuition pay m ents either. ¶15. The trial court f

ound that the c hildren had c hosen to g o to Prentiss Christian School because Betty

testif ied that her and John’s children had attended Prentiss Christian School since 2010. Theref

o re, J ohn’s argum ent about the condition precedent not being m et because the children had not chosen to attend the school is without m erit. ¶16. The trial court f

ound that John was responsible f or one-half the tuition costs that had been paid by Betty , rather than one-third, because Candy ’s t w o children were w ithdrawn

5f

rom the school prior t o the 2012-2013 school y ear. Accordingly , the trial court ordered John to pay $ 1 5,150.20 to Betty , representing one-half of the tuition pay

m ents that she had paid
f or her and John’s f

our children to attend the school. ¶17. “It is well s ettled that [ t rial courts] are af f o rded wide latitude i n f

ashioning equitable

rem edies in dom estic relations m atters.” Finch v. Finch , 137 So. 3d 227, 232 (¶10) (Miss. 2014). W e f

ind t hat the t rial court did not abuse its discretion in f i nding John in contem

pt f or f ailing to pay

f or his children’s private-school tuition and ordering him to pay one-half of t he tuition that Betty had paid. The trial court f a shioned an equitable rem e dy by ordering John to pay one-half o f t h e t u i t i o n costs r a t her than one-third as m entioned in the agreed order o f m odif

ication. Certainly this rem edy avoided a n inequitable result, b ecause John was in c ontem pt by n ot enrolling his children and listing them under his a ccount; a nd only Betty had paid f

or their children’s tuition. This assignm ent of error is without m erit.
II. Whether the trial court erred in aw arding attorney ’s fees to Betty . ¶18. John argues that the trial c ourt erred in a w arding attorney ’s f ees to B etty because there was no proof of Betty ’s attorney ’s f ees being presented at the hearing. ¶19. Attorney ’s f

ees a re awarded to m ake the plaintif f whole in contem

p t actions. W

ilson

v. Stewart , 171 S o. 3d 5 22, 529 ( ¶ 21) (Miss. Ct. A pp. 2014 ) ( citing Rogers v. R ogers , 662
So. 2d 1111, 1116 ( Miss. 1995)). “W h en a party i s held in contem pt f or violating a valid judgm ent of th e c o urt, then attorney ’s f ees should b e awarded t o the party that has been
f orced to s eek the court' s enf orcem ent of its own judgm ent.” I d . (quoting Bounds , 935 So. 2d at 412 (¶18)).

6¶20. I n t h i s c o n tem pt action, the trial court determ ined t ha t a n a w a r d o f $ 2 , 0 0 0 i n attorney ’s f

ees was r easonable based o n the pleadings that had been f iled and a o n e - d ay hearing. Mississippi Code Annotated section 9-1-41 (Rev. 2014) provides:
In any action in w hich a c ourt is authorized to award reasonable attorney s’ f ees, the court shall not require the party seeking such f e es to put on proof as to the reasonableness of the am ount sought, but shall m ake the award based on the inf orm ation already b e f

o r e i t and the court’s own o pinion based on experience and observation; provided however, a party m ay , in its discretion, place bef ore the court o ther evidence as to t he reasonableness of the am ount of the award, and the court m ay consider s uch evidence in m a king the award. ¶21. In Moseley v. Smith, 180 So. 3d 667, 675 (¶38) ( Miss. C t

. A p p . 2 0 1 4), this Court
f ound that, “[ w]hile t here [ was] no item ized b ill of the l ega l s e r v ices [ t hat the plaintif f ’s]

a t torney had rendered, the record show[ ed] the a m ount of work [ the attorney ] perf o r me d
f iling [ a] contem

pt a ction, r esponding t o [ the d ef endant’s] m o tions, a nd attending a hearing

on [ the def

endant’s] m otion to reconsider.” This Court held: “Under [ s ection 9-1-41], ‘[ i]n
any act ion in which a c ourt is authorized to a w ard reasonable attorney s’ f ees,’ such as [ a]

contem pt action, the party s eeking f ees does not h ave ‘to put o n proof a s t o the reasonableness o f the am o u nt s ought.’” Id. “ Instead, the court ‘shall m ake the award based

on the i nf orm ation already bef

ore it an d t h e c o u r

t’s own opinion based on experience and observation[ .]’” Id . (quoting Miss. Code Ann. § 9-1-41). ¶22. Here, the trial court awarded a reasonable am ount of attorney ’ s f ees to Betty based on its experience, observation, and the inf orm ation bef

ore it, i.e., the pleadings and a one-day hearing. This issue is also without m erit.
III. Whether to aw ard Betty appellate attorney ’s fees.

7¶23. Betty requests in her b r ief that this Court award her appellate attorney ’s f ees ofonehalf of $2,000, which w as awarded to her by the trial court. G enerally , o n appeal this Court awards attorney ’s f

ees of one-half of what was awarded in the trial court. Parker v. Bliven , 59 So. 3 d 6 19, 623 (¶24) (Miss. Ct. App. 2010). In Parker , this Court g ranted the appellee’s request on appeal f

or an a ward o f one-half of the a ttorney ’s f ees the trial court awarded due to the appellant’s contem pt. Id

. ¶24. Here, the trial c ourt ordered John to pay attorney ’s f e e s because Betty w a s f

orced by John’s open and w illf

ul contem

pt to f i l e a contem

pt action against him

. There was no discussion by

the trial court regarding Betty ’s inability to pay her attorney ’s f

ees. ¶25. W e acknowledge t hat this Court has p reviously declined to award appellate attorney ’s f ees where the award at the trial-c o u r t l e v e l w a s based solely on the m isconduct of the

contem nor and not o n the contem n ee’s inability to pay attorney ’s f ees. In Dailey v. McBeath , 151 So. 3d 1038, 1045 (¶22) ( M iss. Ct. App. 2014), this C o urt concluded that the trial court awarded t he m other attorney ’s f e e s d u e to the f

ather’s willf

ul f ailure to pay child support. However, this C ourt declined to a ward the m o ther appellate a ttorney ’ s f ees of o ne-half of the trial-level attorney ’s f

ees because the award at the trial level was based on the misconduct of the f ather and not on the m other’s inability t o pay her attorney ’s f

ees. Id . at (¶¶22-23). ¶26. The Dailey c ourt looked to two cases to determ ine whether to a ward o n appeal o nehalf o f the attorney ’s f

ees awarded at trial. First, this Court looked to Parker

. In Parker , this
Court g r a n t e d the m o t her’s r e quest on appeal f or an award of one-half of the t rial-level attorney ’s f

e es d ue to t he f

ather ’ s c o n tem

pt. Parker , 59 S o. 3d at 623 (¶24). The Parker

8court did not require that the trial court f ind or that the m other prove f inancia l n e e d f

or an award of ap p e l l a t e a t torney ’s f e es. Id. The Dailey court, however, f ound the case of McDonald v. McDonald , 69 So. 3d 61 (Miss. Ct. App. 2011), m ore persuasive. ¶27. I n McDonald , the trial court held E d McDonald in contem pt f o r f a iling t o p a y h i s separate-m ain t e n a

n c e o b l igation and awarded attorney ’s f e es to Ed’s wif

e , Cindy McDonald. McDonald , 69 So. 3d at 67 (¶15). On appeal, however, this Court declined to award one-half of the a ttorney ’s f

ees awarded to Cindy “[ b]ecause precedent dictates that attorney ’s f ees are b a s e d o n ‘ necessity r a ther than entitlem e n t,’ and the chancellor did not f ind that th e attorney ’s f

ees awarded to Cindy w ere based on an inability to pay her a ttorney [ .]” Id

. at 68 (¶17). The D ailey court relied on McDonald in its decision. W e note t hat Dailey is distinguishable f

rom the instant case because, as this Court expressly noted, Gregory Dailey did not challenge the court’s f inding of contem

pt, b ut rather the m odif

ication of child support and whether the court erred in a warding attorney ’s f e es f o r c o n t e m

pt. The a t torney ’s f

ees f or contem pt awarded in Dailey were a m inor issue, presum ably n ot worth half of the am ount of attorney ’s f

ees that the appellee received in the trial court f or litigating the m erits of

the

contem pt action. ¶28. The M

cDonald court correctly pointed out that generally attorney ’s f ees a r e awarded

on a need rather than an entitlem ent basis. Id. T h ere is an im portant exception, however. The McDonald c ourt f

a iled to acknowledge that “[ t]he purpose of an award of attorney ’s f ees in a c o n t e mp t action is to m ake the plaintif f whole.” Howard v. Howard , 968 So. 2d 961,
979 (¶48) (Miss. Ct. App. 2007) ( c i t a t ion om itted). To achieve this purpose, “[ e]stablishm ent

9of t he McKee f actors is not necessary f

or an contem n ee to recover attorney ’s f ees where the

contem nor has willf

ully v i olated a lawf

ul court order.” I

d. ; M c K e e v. McKee , 418 So. 2d 764, 767 (Miss. 1982) (stating the f actors the t rial c o u r t should consider when deciding whether to assess attorney ’ s f ees). Theref

ore, a trial c o urt does not have to apply the sam e considerations in assessing a ttorney ’s f ees in contem

pt actions as ordinarily required f or an

assessm ent of

attorney ’s f

ees. ¶29. More i m

portantly , “[ a] specif

ic f inding o f i n a b i l i t y t o p a y is not required when attorney ’s f

ees are assessed against a party f o und to be in contem

pt.” Vincent v. Rickman , 167 S o. 3d 245, 251 (¶22) (Miss. Ct. App. 2015) ( citing Mount v. Mount , 624 So. 2d 1001,
1005 (Miss. 1993)). Both t his Court an d t he Mississippi Suprem e Court have repeatedly held t hat a party d oes not have to dem ons t rate need f or the t rial court to award attorney ’s f ees. See, e.g., H

useth v
. H

useth , 135 So. 3d 846, 860 (¶45) (Miss. 2014) ( attorney ’s f ees
proper in contem

pt actions regardless of need); Parker , 59 So. 3d at 623 (¶24). Thus, a party does not have an obligation to p rove, nor m u st a trial court f

i nd, f inancial nece s s i t y w hen awarding attorney ’s f

ees in contem

pt actions. ¶30. Based on this p r ecedent, we will not decline to award one-half of t he attorney ’s f ees awarded below in a contem p t action based on the trial court ’ s f a i lure to determ ine if the attorney ' s f

ees were f

inancially necessary . W e f ind that the additional bu r d e n of proving
f i n a n c ial n ecessity in a contem pt action should not be r equired. By its nature, a cont e mp t action does not r e q u i r e f inancial need and to require this showing on appeal would ef f ectively p revent an appellate court f rom a w arding these f

ees in a ppeals o f contem

pt

1 0a c t i o n s . W e theref ore f ind that McDonald and its progeny should be disregarded on th i s issue

. ¶31. Further, while a n award of attorney ’ s f e es, e v e n i n c o n t e mp t a c t i o n s , must be reasonable, there is no indication that the trial court assessed an unreasonable award below

or that a n award of

one-half of

those f ees by this Court would be unreasonable. S ee Hinds Cty. Bd. of

Sup’rs v. C

ommon Cause of

Miss ., 551 So. 2 d 107, 125 (Miss. 1989) ( “[ T]he trial

court has discretion to award reasonable attorney f ees t o m ake the plaintif

f who l e a n d to reinf orce com p l iance with the judicial decree[ .]”). ¶32. Based o n the f

oregoing reasons, we grant Betty ’s request f or a ppellate attorney ’s f

ees of $1,000, or one-half

of the attorney ’s f

ees awarded below. ¶33. T H E J U D G M E N T O F T H E CHANCERY COURT OF LAWRENCE CO U N T Y IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED T O THE APPELLANT.
L E E , C . J., IRVING AND GRIFFIS, P. J J . , B A R N E S , I S H E E , C A R L T O N , F A I R , WILSON AND GREENLEE, JJ., CONCUR.

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