281 So.3d 189
Miss. Ct. App.2019Background
- Amber Brown and James Hewlett divorced by Mississippi chancery court; custody agreement gave Brown physical custody in Missouri and Hewlett in-person and telephonic visitation rights.
- Brown filed competing custody litigation in Missouri; Missouri court twice declined jurisdiction under the UCCJEA and deferred to Mississippi chancery court.
- Hewlett petitioned for contempt after Brown denied telephonic and in-person visitation and continued litigation in Missouri; multiple show-cause and ex parte motions followed.
- Brown was personally served with a Rule 81 contempt summons; she failed to appear at multiple hearings though her counsel did; requests for continuances and telephonic testimony were denied.
- The chancery court found Brown in contempt, ordered delivery of the child for summer visitation, imposed a $10,000 bond, and awarded Hewlett $5,000 in attorney’s fees; Brown posted bond, paid fees, and appealed.
Issues
| Issue | Plaintiff's Argument (Brown) | Defendant's Argument (Hewlett) | Held |
|---|---|---|---|
| Denial of continuance / discovery / GAL | Trial court abused discretion by refusing continuance, discovery, telephonic testimony, and by not appointing GAL | Court had discretion; Brown didn’t specifically seek GAL, offered no evidentiary support for discovery or depositions, and could have appeared in person | Denial was within court’s discretion; requests lacked specificity or evidentiary support; GAL not required absent factual basis |
| Admissibility of telephonic testimony / failure to appear | Telephonic testimony or continuance was necessary so Brown and child could testify | No exigency; opposing party objected; Brown had opportunity to appear in person | Court did not abuse discretion in denying telephonic testimony and continuance |
| Contempt finding | Brown followed Missouri counsel and believed Missouri should hear custody matters, so she did not willfully disobey | Chancery order remained in effect; Missouri declined jurisdiction; Brown intentionally interfered with visitation | Contempt affirmed: substantial evidence Brown violated clear visitation order; defenses (inability or unclear order) not shown |
| Award of attorney’s fees (trial and appellate) | Fees award was unsupported because court accepted flat sum without itemized billing or McKee-factor testimony | Chancellor may award reasonable fees based on record and court’s experience; fees reimburse prevailing party for enforcing judgment; appellate fee may follow practice | $5,000 trial attorney fee affirmed as reasonable; appellate fee request denied without prejudice for failure to follow Rule 27(a) procedural requirements |
Key Cases Cited
- McDonald v. McDonald, 39 So. 3d 868 (Miss. 2010) (issues not preserved when not raised below)
- Carter v. Carter, 204 So. 3d 747 (Miss. 2016) (GAL appointment required only upon sufficient factual basis of abuse/neglect)
- Dawkins v. Redd Pest Control Co., 607 So. 2d 1232 (Miss. 1992) (discovery rulings reviewed for abuse of discretion)
- Byrd v. Nix, 548 So. 2d 1317 (Miss. 1989) (telephonic testimony admissibility rests in trial court’s discretion)
- Ellis v. Ellis, 840 So. 2d 806 (Miss. Ct. App. 2003) (elements and defenses in contempt proceedings)
- Heisinger v. Riley, 243 So. 3d 248 (Miss. Ct. App. 2018) (attorney’s fees for enforcing court judgment in contempt context)
- Berlin v. Livingston Prop. Owners Assoc. Inc., 232 So. 3d 148 (Miss. Ct. App. 2017) (reasonableness standard for fee awards)
- McKee v. McKee, 418 So. 2d 764 (Miss. 1982) (factors informing reasonableness of attorney’s fees)