282 So.3d 727
Miss. Ct. App.2019Background
- Parents Perkins and Herrin share a child born 2015; an agreed final chancery judgment (Dec. 2016) set child support, daycare cost-sharing, visitation, health-insurance obligation, and required Herrin to pay Perkins’ attorney fees.
- Herrin fell behind on payments after reducing work hours to attend paramedic school and after his other child moved in; Perkins sued for contempt and sought arrearages and fees.
- Perkins filed an amended contempt petition specifying amounts for unpaid child support, daycare, and attorney’s fees; Herrin answered and counterclaimed for modification but did not move to dismiss for defective pleading or seek discovery on arrearages.
- At the April 2018 hearing Herrin admitted failure to pay attorney’s fees, denied knowledge of daycare obligation (despite the signed order), offered no documentary refutation, and presented inability-to-pay as a defense.
- The chancery court found Herrin in contempt by clear and convincing evidence, ordered payment of outstanding attorney’s fees and daycare arrearage, awarded Perkins trial attorney’s fees, and temporarily reduced Herrin’s monthly child support for six months.
- Herrin appealed, challenging only the sufficiency of Perkins’s contempt petition; Perkins sought appellate attorney’s fees.
Issues
| Issue | Plaintiff's Argument (Perkins) | Defendant's Argument (Herrin) | Held |
|---|---|---|---|
| Whether contempt petition was insufficient for failing to itemize each missed payment | Petition gave notice with dates and amounts; adequate under Rule 8 | Petition failed to specifically enumerate each instance of contempt; dismissal required | Court affirmed: Herrin waived the pleading claim by not raising it below, cited lack of prejudice and that Rule 8 notice pleading sufficed |
| Whether chancery court erred in finding Herrin in contempt | Contempt supported by admissions, signed final judgment, and evidence of arrearages | Herrin argued changed circumstances and lack of notice about daycare debt | Court found contempt proven by clear and convincing evidence; sanctions and payment orders affirmed |
| Whether trial court abused discretion by ordering remedial sanctions including attorney’s fees and temporary modification of support | Fees and purge payments appropriate; temporary modification permitted | Herrin argued inability to pay and need for modification | Court did not abuse discretion; awarded fees and ordered payments, granted temporary reduction of ongoing support |
| Whether Perkins is entitled to appellate attorney’s fees | Requests fees under Rule 38 and practice of awarding fees when trial-level fees awarded | Herrin opposed | Court denied without prejudice, directing Perkins may file a Rule 27(a) motion before mandate per Latham |
Key Cases Cited
- Latham v. Latham, 261 So. 3d 1110 (Miss. 2019) (motion for appellate attorney’s fees must comply with Rule 27(a))
- Bosarge v. Bosarge, 879 So. 2d 515 (Miss. Ct. App. 2004) (contempt for failure to pay child support reviewed for manifest error)
- Wilson v. Stewart, 171 So. 3d 522 (Miss. Ct. App. 2014) (chancellor’s factual findings reviewed under abuse-of-discretion/manifest-error standard)
- Gilliland v. Gilliland, 984 So. 2d 364 (Miss. Ct. App. 2008) (contempt adjudication requires clear and convincing proof)
- Grant v. Grant, 765 So. 2d 1263 (Miss. 2000) (practice of awarding appellate fees when trial court awarded attorney’s fees)
- Welch Roofing & Const. Inc. v. Farina, 99 So. 3d 274 (Miss. Ct. App. 2012) (pleadings under Rule 8 need only provide sufficient notice of claims)