Ellzey v. White
| Docket Number: | 2004-CA-02523-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 02-21-2006 Opinion Author: Lee, P.J. Holding: AFFIRMED IN PART; REVERSED AND REMANDED IN PART |
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| Additional Case Information: |
Topic: Child custody - Attorney’s fees - Child support - M.R.C.P. 81 - Jurisdiction - Section 93-27-209 Judge(s) Concurring: King, C.J., Myers, P.J., Southwick, Irving, Chandler, Griffis, Barnes, Ishee and Roberts, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 08-20-2004 Appealed from: Pike County Chancery Court Judge: W. Hollis McGehee, II Disposition: ADJUDICATED PATERNITY, GRANTED CUSTODY TO JESSICA WHITE AND ORDERED ELLZEY TO PAY CHILD SUPPORT AND ATTORNEY’S FEES Case Number: 2004-122 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Damon Ellzey |
M. DAVE HARBOUR |
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| Appellee: | Jessica White | DEE ALFORD SHANDY |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Child custody - Attorney’s fees - Child support - M.R.C.P. 81 - Jurisdiction - Section 93-27-209 |
| Summary of the Facts: | Jessica White filed a petition alleging that Damon Ellzey was the father of her child. The petition asked the court to adjudicate paternity, grant her custody of Devin, and order Ellzey to pay child support. A paternity test was performed, with the results concluding that Ellzey was the biological father of Devin. The chancellor adjudicated paternity, granted custody to White, ordered Ellzey to pay $680 per month in child support plus one-half of any non-covered medical expenses, ordered Ellzey to pay White’s attorney’s fees of $1,545, and awarded Ellzey limited visitation. Ellzey appeals. |
| Summary of Opinion Analysis: | Issue 1: Attorney’s fees Ellzey argues that the court erred in ordering Ellzey to pay White’s attorney’s fees. The award of attorney's fees is governed by the relative financial ability of the parties, the skill and standing of the attorney employed, the nature of the case and novelty and difficulty of the questions at issue as well as the degree of responsibility involved in the management of the cause, the time and labor required, the usual and customary charge in the community, and the preclusion of other employment by the attorney due to the acceptance of the case. At no point in the record does the chancellor discuss any of these factors in his decision to award White attorney’s fees. Therefore, the issue of attorney’s fees is reversed and remanded. Issue 2: Child support Ellzey argues that the court erred in ordering him to pay $680 per month in child support. Although not admitted into evidence, the chancellor references Ellzey’s Rule 8.05 Financial Declaration, wherein Ellzey stated that he made $1,720 gross monthly income from working as a manager at Babes Show Club. Ellzey also owns a seasonal waterfront bar in Louisiana and testified that he would make anywhere from $500 to $600 per weekend. However, Ellzey testified that that total does not include the deduction of business expenses, such as the mortgage, alcohol, and electric bills. It is unclear from the record as to how the chancellor calculated the amount of Ellzey’s adjusted gross income. From the record, there is no substantial evidence for the chancellor’s conclusion that Ellzey makes over $6,000 per month. Therefore, this issue is reversed and remanded. Issue 3: M.R.C.P. 81 Ellzey argues that M.R.C.P. 81 was not complied with because the date for the June 17, 2004, hearing was not entered into the record on the date of the May 3, 2004, hearing. The right to contest the trial court’s jurisdiction based upon a claimed problem with service may be lost after making an appearance in the case if the issues related to jurisdiction are not raised at the first opportunity. Ellzey defended himself before the court and, according to the transcript, was given the opportunity to address the court as well as cross-examine White. Therefore, there is no merit to his claim. Issue 4: Jurisdiction Ellzey argues that the court lacked jurisdiction due to a failure to comply with the Uniform Child Custody Jurisdiction and Enforcement Act. According to section 93-27-209, certain information must be submitted to the court in matters relating to child custody. White’s initial petition complies with the dictates of section 93-27-209. Issue 5: Custody Ellzey argues that there was insufficient evidence to support the chancellor’s decision to award custody to White. However, it is evident from the record that the parties withdrew the issue of custody. |
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