JAMES, J., for the Court:
¶ 1. Shain and Dana Speights were granted an irreconcilable-differences divorce by the Lawrence County Chancery Court. Shain appeals the chancellor's decision to award physical custody of the parties' four minor children to Dana, in addition to the award of $2,500 in attorney's fees to Dana. This Court affirms the award of physical custody. However, we find an abuse of discretion in the chancellor's award of attorney's fees. Thus, we reverse and remand that portion of the judgment.
¶ 2. Shain and Dana were married on July 14, 2000. During the marriage, the parties had four children. The parties separated on November 23, 2009. On April 30, 2010, Dana filed for divorce on the ground of habitual cruel and inhuman treatment or, in the alternative, on the ground of irreconcilable differences. On June 2, 2011, the Lawrence County Chancery Court entered a temporary order, granting Dana temporary custody of the parties' four minor children. The parties were awarded joint legal custody of the children, and Shain was granted visitation. On March 15, 2012, Shain filed an answer and counterclaim for divorce on the grounds of adultery and habitual cruel and inhuman treatment or, in the alternative, on the ground of irreconcilable differences.
¶ 3. A trial was held on March 19, 2012. The parties agreed to a divorce based on irreconcilable differences.
¶ 4. Our scope of review in domestic-relations matters is limited. Montgomery v. Montgomery, 759 So.2d 1238, 1240 (¶ 5) (Miss.2000) (citing Bell v. Parker, 563 So.2d 594, 597-97 (Miss.1990)). This Court will not disturb a chancellor's judgment absent an abuse of discretion or manifest error. Id.
¶ 5. Shain argues that the chancellor's decision to award physical custody
Id.
¶ 6. The chancellor applied each of the Albright factors in determining which parent was better suited for physical custody of the minor children. Ultimately, the chancellor determined that it was in the best interest of the children to remain in Dana's custody. Shain contends that the chancellor erred in the Albright analysis of three factors: (1) the health and sex of the children, (2) parenting skills, and (3) the stability of the home environment.
¶ 7. To support his argument, Shain refers to an incident that occurred during the parties' separation while the children were in Dana's care. Dana testified that on one morning, the parties' eleven-year-old son, who has ADHD, mistakenly ingested the wrong type of medication. Dana stated that she usually places all of the children's medication on the kitchen table. The parties' seven-year-old daughter takes medication for asthma. Dana testified that, at the time of the incident, the brand of their son's ADHD medication had been recently changed, and he mistakenly thought that the asthma medication was his new medication. According to Dana, the child was immediately taken to the emergency room for treatment. Dana testified that the child was not physically harmed, nor did he suffer any long-term effects from the ingestion. Dana also testified that she now gives each child their respective medications herself, and that she watches the children as they take the medication.
¶ 8. Also in support of his argument, Shain references the children having head lice while in Dana's care. The chancellor found that this did not adversely affect the children because the head lice "only happened on two occasions ... and there have been no further episodes." In his brief, Shain argues that this in incorrect. From the record, it is unclear where the chancellor got the notion that the children had head lice on only two occasions. At trial, the following exchange took place between Dana and Shain's attorney regarding the head lice:
¶ 9. Shain argues that the "health of the children" and "stability of the home environment" factors favor him over Dana for a number of reasons. First, Shain points to the fact that Dana is a smoker. Dana testified that she normally smokes cigarettes outside of the home, but has on occasion smoked around the children while inside the home. Shain argues that Dana's smoking negatively affects the health of the children. However, Shain testified that his grandmother, who occasionally helps with the children while they are in his custody, smokes as well. The chancellor found that because there was no evidence of an adverse impact on the children from the grandmother's smoking or from Dana's smoking, the "health of the children" factor was neutral. The chancellor did, however, order that there be no smoking or consumption of alcohol in the presence of the children by either party or by family members.
¶ 10. Next, Shain argues that since the parties' separation, Dana has moved three times, and that her moving evinces instability of the home environment. However, Dana testified that during each of these moves, the children remained in the same school. Dana also testified that she has lived at her current address for over a year. For these reasons, the chancellor found that the children were not adversely affected as a result of the moves.
¶ 11. Shain also argues that the children would be more stable in his custody because he is employed and Dana is not. Dana testified that during the marriage, both parties agreed that Dana would forgo her career plans so that she could remain home and care for the children full-time. Dana stated that after the parties separated, she obtained employment, but quit working after five months because it was causing her to spend too much time away from the children. She also stated that she is currently looking for a job. The chancellor determined that because Dana had been the primary caregiver of the children since their births, it was in the children's best interest to remain in her custody. The chancellor did not find Dana's current unemployment to have a negative impact on the children.
¶ 12. Regarding the parties' parenting skills, Shain argues that Dana has made poor decisions regarding the children's care since the parties' separation. Specifically, Shain refers to Dana's decision to allow the children to take medication while unsupervised. As previously stated, Dana testified that she now supervises the children when they take medication, and the medication is no longer stored within the children's reach. The chancellor determined that the incident of the parties' son ingesting the wrong medication was an isolated incident, and held the following:
¶ 13. Shain also references Dana's decision to expend money on Christmas gifts for the children instead of paying her monthly car note. According to Dana, Shain had given her money, which she used to purchase gifts for the children. Dana stated that during that time, her
¶ 14. "We will not disturb the findings of a chancellor unless the chancellor was manifestly wrong [or] clearly erroneous, or applied an erroneous legal standard." Jordan v. Jordan, 105 So.3d 1130, 1133 (¶ 10) (Miss.Ct.App.2012) (quoting Taylor v. Bell, 87 So.3d 1134, 1137 (¶ 6) (Miss.Ct.App.2012)). Accordingly, we decline to disturb the chancellor's findings. The record shows that the chancellor carefully applied each of the Albright factors, and the judgment is well supported by the evidence. We find no error in the chancellor's decision to award physical custody of the children to Dana.
¶ 15. Next, Shain argues that the chancellor erred in awarding $2,500 in attorney's fees to Dana. "The award of attorney['s] fees in divorce cases is left to the discretion of the chancellor, assuming he follows the appropriate standards." Creekmore v. Creekmore, 651 So.2d 513, 520 (Miss.1995) (citing Adams v. Adams, 591 So.2d 431, 435 (Miss.1991)). "Attorney['s] fees are not generally awarded unless the party requesting such fees has established the inability to pay." Id. (citing Dunn v. Dunn, 609 So.2d 1277, 1287 (Miss.1992)). Regarding attorney's fees, the chancellor held the following:
¶ 16. Although Dana offered testimony regarding her lack of income, she did not offer any evidence of the amount of attorney's fees she incurred. The record shows that Dana's attorney briefly mentioned her intention to offer evidence of attorney's fees at the conclusion of trial, but she never did so. At no time during trial did Dana or her attorney provide the chancellor with evidence of attorney's fees. Thus, it is unclear to this Court how the chancellor arrived at a figure of $2,500. Further, there is no financial statement from Dana in the record to substantiate her inability to pay.
¶ 17. "An award of attorney's fees should be `fair and should only compensate for services actually rendered after it has been determined that the legal work charged for was reasonably required and necessary.'" Jordan, 105 So.3d at 1135 (¶ 20) (quoting Dunn, 609 So.2d at 1286). It has long been the practice of trial courts to apply the factors in McKee v. McKee, 418 So.2d 764, 767 (Miss.1982), in awarding attorney's fees. Although it is not necessarily reversible error for the chancellor not to make an on-the-record analysis of
¶ 18. In response to the dissenting opinion, it was not necessary for the appellant to request a reconsideration in order to preserve the matter for appeal. The case of Concannon v. Reynolds, 878 So.2d 107 (Miss.Ct.App.2003), was decided on limited facts, as were other cases cited in the dissenting opinion. These cases did not have the effect of altering Mississippi Rule of Appellate Procedure 3(a), which states:
The proper filing of a notice of appeal is the first step in perfecting an appeal. No request for a rehearing or request for reconsideration is necessary. The dissenting opinion also relies on Mississippi Code Annotated section 9-1-41 (Rev.2002), which states:
¶ 19. In the present case, the chancellor made insufficient findings and there is insufficient proof in the record for this court to determine whether the chancellor's findings were fair and reasonable. Although the statute gives the court broad discretion, the award of attorney's fees cannot be upheld by this court unless the record supports the award. An award of attorney's fees may be sufficient in a simple matter before the court, where the award is based on the court's experience and observation. However, in a case of this nature, where there are many billable hours that the court is unable to observe or lacks knowledge of, it is incumbent upon the party requesting fees to place before the court evidence as to the reasonableness of the amount of the award, so that the record as a whole can support the award of attorney's fees. Because the chancellor's award of $2,500 is not supported by the evidence, we reverse and remand this portion of the judgment for a proper assessment of attorney's fees.
¶ 20.
LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN
CARLTON, J., concurring in part and dissenting in part:
¶ 21. I respectfully concur in part and dissent in part with respect to the majority's opinion. I concur with the majority's decision affirming the chancellor's award of physical custody of the parties' four minor children to Dana. However, since I find no abuse of discretion by the chancellor in his award of attorney's fees to Dana, I would also affirm this decision.
¶ 22. Here, the complaint shows that Dana claimed an inability to pay her attorney's fees, and her complaint requested that the court order Shain to pay all attorney's fees and costs of court. Shain denied Dana's averment, and in his counter-complaint, Shain also asserted that the trial court should award him, not Dana, reasonable attorney's fees. In satisfying the factual findings required by precedent and equity, the chancellor first determined that Dana lacked ability to pay her attorney's fees. See Lindsey v. Lindsey, 219 Miss. 540, 544, 69 So.2d 203, 204 (1954) (chancellor must find inability to pay to support an award of attorney's fee award in a divorce case); 7 Jeffrey Jackson & Mary Miller, Encyclopedia of Mississippi Law § 8:68, at 260 (2001) (award of attorney's fee in divorce case must be supported by finding that requesting party lacked ability to pay).
¶ 23. With respect to reasonableness of the amount of the attorney's fee award, the Legislature established in Mississippi Code Annotated section 9-1-41:
The Legislature last amended section 9-1-41 in 1990. Previously, in Cheatham v. Cheatham, 537 So.2d 435, 440 (Miss.1988), the supreme court recognized that McKee set forth the following factors for the chancellor to consider as guidelines when determining an appropriate amount of fees sufficient to employ one competent attorney:
¶ 24. Here, the record shows that the chancellor followed the statutory provisions of section 9-1-41 and also considered the McKee factors. Consistent with section 9-1-41, the chancellor applied his experience and observation to the information before the court in determining the reasonableness of the amount of attorney's fees required to procure one competent attorney in that community for this case.
¶ 25. As stated, in the judgment granting the divorce, the chancellor found Dana lacked the income or financial resources to employ an attorney. In addressing Shain's counter-complaint for attorney's fees, the chancellor determined that Shain possessed sufficient assets and income to enable him to pay attorney's fees for his representation. Consistent with precedent and section 9-1-41, the chancellor then found that in light of Dana's inability to pay, equity required that he order Shain to pay for Dana's attorney's fees. The chancellor then determined that, after taking into consideration the court's familiarity with the time and work necessary to properly and adequately represent a party in a child-custody dispute such as this case, an appropriate attorney's fee to be paid for and on behalf of Dana would amount to $2,500.
¶ 26. The record reflects that the complaint was filed in April 2010. The record also shows that motions for continuance were filed, as well as a motion and an amended motion for temporary relief. The record shows that a notice of hearing and amended notice of hearing were filed and a temporary order issued. Discovery was served, and Dana filed a motion to compel discovery responses from Shain. As noted above, the record reflects Shain
¶ 27. In this case, the chancellor clearly found that Dana lacked the ability to pay her attorney's fees.