McDonald v. McDonald


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Docket Number: 2010-CA-00044-COA

Court of Appeals: Opinion Link
Opinion Date: 08-16-2011
Opinion Author: Roberts, J.
Holding: Affirmed

Additional Case Information: Topic: Contempt - Separate maintenance - M.R.A.P. 28(a)(6) - Attorney's fees on appeal
Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Myers, Barnes, Ishee, Carlton, Maxwell and Russell, JJ.
Procedural History: Bench Trial
Nature of the Case: CIVIL - DOMESTIC RELATIONS

Trial Court: Date of Trial Judgment: 11-09-2009
Appealed from: Clay County Chancery Court
Judge: H.J. "Jim" Davidson, Jr.
Disposition: MOTION TO TERMINATE SEPARATE MAINTENANCE DENIED, AND HUSBAND HELD IN CONTEMPT FOR FAILURE TO PAY SEPARATE-MAINTENANCE PAYMENTS
Case Number: 2007-0336

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Edgar L. McDonald, Jr.




HAL H.H. MCCLANAHAN



 

Appellee: Cynthia Jean Guess McDonald GEORGE M. MITCHELL JR.  

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Topic: Contempt - Separate maintenance - M.R.A.P. 28(a)(6) - Attorney's fees on appeal

Summary of the Facts: Edgar McDonald Jr. (Ed) unsuccessfully attempted to divorce his wife, Cynthia McDonald. Instead, the chancery court granted Cindy’s request for separate maintenance. Less than two weeks later, Ed attempted to terminate his separate-maintenance obligation, but the chancery court denied Ed’s motion. Ed then attempted to terminate his separate-maintenance obligation again – this time via his motion to alter or amend the order denying his motion to terminate separate maintenance. Cindy responded by requesting that Ed be held in contempt for failing to pay her separate maintenance. The chancellor denied Ed’s motion to alter or amend his previous order and granted Cindy’s request that Ed be held in contempt. Accordingly, the chancellor awarded Cindy a judgment of $6,000. The chancellor also awarded Cindy $1,000 in attorney’s fees. Ed appeals.

Summary of Opinion Analysis: Issue 1: Separate maintenance Ed argues the chancellor erred when he refused to terminate the separate-maintenance obligation. A decree for separate maintenance is a judicial command to the husband to resume cohabitation with his wife, or in default thereof, to provide suitable maintenance for her until such time as they may be reconciled to each other. The purpose of the award is to provide, as nearly as may be possible, the same sort of normal support and maintenance for the wife, all things considered, as she would have received in the home, if the parties had continued normal cohabitation. If the husband should, in good faith, offer to cohabit and treat the wife with conjugal kindness, the wife’s right to separate maintenance ceases and would, on a proper showing to the court, be discontinued. For reconciliation to occur it must be accepted that the appellant was honest in his intention to remedy his fault, and that his offers of reconciliation and request to return were made in good faith, with honest intention to abide thereby, and that the defendant deliberately refused his offers. The chancellor was not manifestly wrong when he found that Ed did not seek to resume cohabitation in good faith. The chancellor heard testimony that Ed had refused to entertain Cindy’s questions regarding Ed’s extra-marital affairs. It was only during the hearing on Ed’s second motion to terminate separate maintenance that Ed finally revealed the name of a paramour. It was not unreasonable for the chancellor to conclude that, by declining to discuss openly any lingering issues regarding his capacity for fidelity, Ed had not made a good-faith attempt to resume cohabitation and his marital relationship with Cindy. Thus, the chancellor did not abuse his discretion when he denied Ed’s requests to the terminate separate-maintenance obligation. Issue 2: Contempt Ed argues that the chancellor erred when he held him in contempt. Ed also argues that the chancellor erred in awarding Cindy $1,000 in attorney’s fees because Cindy was able to pay for her own attorney. Ed failed to cite relevant authority to support his argument on appeal. Thus, this issue is procedurally barred under M.R.A.P. 28(a)(6). Cindy requests an award of attorney’s fees on appeal. Attorney's fees are based upon necessity rather than entitlement. The chancellor specifically held that the attorney’s fees awarded to Cindy are based on the fact that Ed was in contempt “and not the ability to pay.” Thus, Cindy will not be awarded any attorney’s fees on appeal.


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