Faris v. Jernigan


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Docket Number: 2004-CA-02548-COA

Court of Appeals: Opinion Link
Opinion Date: 10-10-2006
Opinion Author: Myers, P.J.
Holding: Affirmed

Additional Case Information: Topic: Child custody - Ne exeat bond - Attorney’s fees
Judge(s) Concurring: King, C.J., Lee, P.J., Southwick, Irving, Chandler, Griffis, Barnes, Ishee and Roberts, JJ.
Procedural History: Bench Trial
Nature of the Case: CIVIL - DOMESTIC RELATIONS

Trial Court: Date of Trial Judgment: 11-23-2004
Appealed from: Forrest County Chancery Court
Judge: J. Larry Buffington
Disposition: MOTHER NOT ALLOWED VISITATION WITH CHILD OUTSIDE THE STATE OF MISSISSIPPI WITHOUT POSTING A $40,000 NE EXEAT BOND. MOTHER ORDERED TO PAY FATHER $40,000 IN ATTORNEYS’ FEES AND EXPENSES INCURRED AS A RESULT OF PROTRACTED LITIGATION.
Case Number: 94-0395-GN

  Party Name: Attorney Name:  
Appellant: Kelly R. Faris




S. CHRISTOPHER FARRIS



 

Appellee: Jay L. Jernigan ANTHONY SAKALARIOS  

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Topic: Child custody - Ne exeat bond - Attorney’s fees

Summary of the Facts: Kelly Faris and Jay Jernigan were granted a divorce. Primary custody of their minor daughter was originally awarded to Faris, but Jernigan later filed a petition to modify custody. the chancellor entered an order permanently reversing primary custody from Faris to Jernigan. Faris appealed, and the Court of Appeals affirmed. Following the modification of custody, Faris relocated to Atlanta, Georgia. Aware that visitation with her mother would require the child to leave the jurisdiction of the State of Mississippi, the chancellor’s order modifying custody required Faris to post a $5,000 ne exeat bond. Following a visit where Faris did not return the child to Gulfport as required, the court entered a contempt order against Faris for wilful violation of the custody and visitation order, and ordered the $5,000 ne exeat bond forfeited to Jernigan. Faris was incarcerated on the criminal contempt charge from March until August 2001. Faris’ incarceration was challenged, but upheld by the Mississippi Supreme Court. The couple’s child remained in the custody of the DeKalb County Juvenile Court from December 2000 until January 2002 during which time Jernigan was required to pay monthly child support and incurred significant travel and lodging expenses visiting his daughter. Jernigan incurred even greater expense defending against litigation in Georgia and prosecuting the contempt action in Mississippi. Since Faris’ release, the chancellor has allowed Faris restricted visitation with her daughter. The chancellor issued an order ruling that Faris could not take her daughter out of the jurisdictional boundaries of the State of Mississippi unless she posted a $40,000 ne exeat bond. The chancellor further ordered Faris to pay $40,000 in attorneys’ fees and expenses incurred by Jernigan in the litigation that resulted from Faris’ violation of the previous visitation order. Faris appeals.

Summary of Opinion Analysis: Issue 1: Ne exeat bond Faris argues that the chancellor erred in requiring her to post a $40,000 ne exeat bond, because she cannot financially comply with the restriction and there is no justification for such a restriction. The purpose of the ne exeat bond is to ensure that the orders of the court will not be ignored. The chancellor’s imposition of a $40,000 ne exeat bond in order for Faris to remove the restriction on visitation to the State of Mississippi was proper under the circumstances and the evidence before him. Further, the amount of the bond was proper in light of Faris’ past willingness to forfeit a $5,000 ne exeat bond, and related actions which resulted in Jernigan incurring more than $75,000 in attorneys’ fees and other associated expenses. Issue 2: Attorney’s fees Faris argues that the chancellor erred in ordering her to pay Jernigan’s attorneys’ fees in the amount of $40,000, because the fees should be paid by the State of Georgia, who wrongfully retained custody of the couple’s daughter. A review of the record indicates that Faris stipulated to the amount of fees incurred in the Georgia litigation, and an itemized bill from one of Jernigan’s attorneys, which outlined the charges incurred in the Mississippi contempt action, was submitted to the chancellor for review. There is no evidence in the record that the fees submitted by Jernigan’s attorney were unreasonable. Furthermore, where a party's intentional misconduct causes the opposing party to expend time and money needlessly, then attorneys’ fees and expenses should be awarded to the wronged party. Although the chancellor stated that the bulk of the fees incurred in the Georgia litigation were directly attributable to the Georgia court’s failure to promptly dismiss the case, he made it abundantly clear in his ruling that it was Faris’ actions in violating the visitation order of the State of Mississippi which triggered the sequence of events that led to the extended litigation in Georgia. Faris’ actions forced Jernigan to take legal action both in Georgia and Mississippi, and Jernigan would not have incurred this large amount of attorneys’ fees and related expenses had Faris followed the court’s order. Therefore, the chancellor did nor err in his assessment of $40,000 in attorneys’ fees and related expenses.


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