Charles Thomas Gardner, Jr. v. Janet Glisson Gardner
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2000-CA-00930-COA
CHARLES THOMAS GARDNER, JR.
v.
JANET GLISSON GARDNER
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
APPELLANT
APPELLEE
05/09/2000
HON. FRANKLIN C. MCKENZIE JR.
JONES COUNTY CHANCERY COURT
BILL WALLER SR.
THOMAS T. BUCHANAN
CIVIL - DOMESTIC RELATIONS
CHARLES THOMAS GARDNER, JR., IS REQUIRED TO
REIMBURSE JANET GLISSON GARDNER WITHIN 30
DAYS, THE SUM OF $2,500 IN ATTORNEY FEES AND
$106 IN COURT COSTS.
AFFIRMED - 09/25/2001
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
10/16/2001
BEFORE SOUTHWICK, P.J., LEE, AND MYERS, JJ.
MYERS, J., FOR THE COURT:
¶1. Charles Gardner appeals the February 10, 2000 order of the Chancery Court for the Second Judicial
District of Jones County awarding Janet Gardner $2,500 in attorney fees in connection with her motion for
citation of contempt, motion for modification and motion for emergency relief. Finding no error, we affirm.
FACTS
¶2. The chancellor entered a final judgment of divorce between Charles and Janet on October13, 1997.
This judgment provided that Charles and Janet have joint custody of their children, each of them taking the
children in four-day intervals. Janet filed her first motion for citation of contempt on July 18, 1998. As a
result of that motion, an agreed order was entered on the matter in September 4, 1998, stipulating that
when the children were exchanged, Janet would deliver the children to the Sandersville Police Department
and Charles would deliver them to the Laurel Police Department.
¶3. On December 17, 1998, Janet filed a motion for citation of contempt, a motion for modification, and a
motion for emergency relief. These motions were heard on January 11, 2000, and the chancellor promptly
entered a judgment on the matter, granting primary physical custody to Janet. Such judgment made no
mention of contempt or the payment of attorney fees. However, the chancellor's subsequent order pursuant
to the judgment, entered on February 10, 2000, required Charles to pay $2,500 in attorney fees to Janet.
The chancellor's order did not enumerate the rationale behind awarding the attorney fees, other than to say
that Charles was found to be in contempt of court.
ANALYSIS
I. PROPRIETY OF THE AWARD OF ATTORNEY FEES
¶4. Charles argues that the chancellor erred in honoring Janet's request for attorney fees without evaluating
that request pursuant to the six factors set forth in McKee v. McKee, 418 So. 2d 764, 767 (Miss. 1982).
However, "the establishment of the McKee factors are not necessary for a contemnee to recover attorney
fees related to pursuing actions where a contemnor has wilfully violated a lawful order of the court. To hold
otherwise would cause no peril to those restrained from certain conduct if they violate the orders of a
court." Mixon v. Mixon, 724 So. 2d 956, 964 (¶29) (Miss. Ct. App. 1998).
¶5. While we agree with Charles that there is a need to ensure "that the chancellor's award is based on
factual information and is not arbitrary," we find evidence in the record to support the amount awarded in
this case. At the hearing on her motions, Janet testified as to the amount she paid her attorney. No crossexamination was made on this matter, nor was any rebuttal evidence offered to contradict Janet's testimony.
The chancellor was therefore justified in awarding Janet with those attorney fees that she testified had been
incurred.
¶6. THE JUDGMENT OF THE CHANCERY COURT FOR THE SECOND JUDICIAL
DISTRICT OF JONES COUNTY IS AFFIRMED. STATUTORY DAMAGES AND INTEREST
ARE AWARDED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,
IRVING AND CHANDLER, JJ., CONCUR. BRANTLEY, J., NOT PARTICIPATING.
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