151 So. 3d 1038
Miss. Ct. App.2014Background
- Mother (Tracie McBeath Fairley) and father (Gregory Dailey) had a child in 1992; an agreed 2001 chancery order gave mother primary custody and required Gregory to pay $334/month plus arrears and half of uninsured medical costs.
- Gregory became chronically delinquent; multiple petitions for modification and contempt were filed and prior contempt proceedings resulted in incarceration orders, purge payments, and awards of arrears and attorney’s fees to Tracie.
- At an April 19, 2012 hearing Gregory did not appear; the chancellor proceeded after denying continuance requests, found Gregory in contempt, and announced an increase in monthly support (bench: $583, later reduced in the written order).
- The July 24, 2012 final order found Gregory $24,114.46 in arrears as of the hearing, awarded an additional judgment of $10,016 plus interest, ordered incarceration until a $15,000 purge payment, required payment of one-half of college expenses, and increased monthly child support to $450 (Gregory appealed only the support increase and the award of attorney’s fees).
- The Court of Appeals affirmed the contempt and attorney-fee award but reversed and remanded the child-support modification because the chancellor failed to make on-the-record, specific findings explaining deviation from statutory child-support guidelines.
Issues
| Issue | Plaintiff's Argument (Tracie) | Defendant's Argument (Dailey) | Held |
|---|---|---|---|
| Whether denial of continuance was an abuse of discretion | Trial should proceed; deny continuance | Denial prejudiced Gregory; counsel unprepared | Denial not an abuse; no reversible prejudice shown |
| Whether modification of child support valid without specific findings for deviation from guidelines | Increase warranted due to child's increased needs (college, insurance, activities) | Modification arbitrary; no findings to justify deviation from 14% guideline | Reversed and remanded: chancery court failed to make required on-the-record findings to justify deviation |
| Whether attorney’s fees awarded to Tracie were proper | Fees proper because Gregory’s contempt and evasion caused extra legal costs | Fees arbitrary; chancellor didn’t apply McKee factors | Affirmed: fees appropriate where contempt caused additional legal fees |
| Whether Tracie should receive appellate attorney’s fees | Appellate fees warranted (claims frivolous) | Appeal raised a valid issue; appellate fees not warranted | Denied appellate fees: appeal not frivolous and lower-court fee award was based on contempt, not inability to pay |
Key Cases Cited
- Yelverton v. Yelverton, 961 So.2d 19 (Miss. 2007) (requires specific findings to support deviation from child-support guidelines)
- Klein v. McIntyre, 966 So.2d 1252 (Miss. Ct. App. 2007) (reversed child-support modification for lack of specific findings)
- Morris v. Morris, 5 So.3d 476 (Miss. Ct. App. 2008) (remand required when chancellor fails to make specific findings for guideline deviation)
- McGehee v. Upchurch, 733 So.2d 364 (Miss. Ct. App. 1999) (same principle on findings requirement)
- Huseth v. Huseth, 135 So.3d 846 (Miss. 2014) (attorney’s-fee awards may be granted without regard to need when fees result from another’s conduct)
- Chesney v. Chesney, 849 So.2d 860 (Miss. 2002) (upholding fee awards where one party’s conduct caused extra legal fees)
- Mount v. Mount, 624 So.2d 1001 (Miss. 1993) (attorneys’ fees properly assessed against a party in contempt)
- Sizemore v. Pickett, 76 So.3d 788 (Miss. Ct. App. 2011) (standard of review for continuance denials)
- Robinson v. Brown, 58 So.3d 38 (Miss. Ct. App. 2011) (denial of continuance reviewed for abuse of discretion; reversal requires prejudice)