IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI CAUSE NO CA-00110

Transcription

1 E-Filed Document Nov :53: CA Pages: 22 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI MONTE KNIGHT VS. APPELLANT CAUSE NO CA MONICA KNIGHT APPELLEE APPELLEE S RESPONSE BRIEF MICHAEL D. GOGGANS (MSBN 10581) THE GOGGANS LAW FIRM, PLLC TH AVENUE MERIDIAN, MISSISSIPPI (601) ORAL ARGUMENT REQUESTED

2 TABLE OF CONTENTS TABLE OF CONTENTS. 2 TABLE OF AUTHORITIES..3 STATEMENT OF THE CASE AND PROCEDURAL HISTORY..5 STATEMENT OF THE ISSUES....7 SUMMARY OF THE ARGUMENT. 8 ARGUMENT. 9 I. WHETHER THE TRIAL COURT ACTED WITHIN ITS DISCRETION WHEN IT DIVIDED THE MARITAL ESTATE OF THE PARTIES. 9 II. III. WHETHER THE TRIAL COURT ACTED WITHIN ITS DISCRETION WHEN IT AWARDED MONICA ATTORNEY S FEES 19 WHETHER THE TRIAL COURT SHOULD AWARD MONICA ATTORNEY S FEES FOR DEFENDING THIS APPEAL. 21 CONCLUSION. 21 CERTIFICATE OF SERVICE..22 Page 2

3 TABLE OF AUTHORITIES Statutes and Rules: M.C.A Allred v. Allred, 735 So.2d 1064, 1070 (Miss. Ct. App. 1999)..16 Barnett v. Barnett, 908 So.2d 833 (Miss. Ct. App. 2005)...14 Bowen v. Bowen, 982 So.2d 385, 395 (Miss. 2008) 16 Brawly v. Brawly, 734 So.2d 237, 241 (Miss. Ct. App. 1999)...16 Burnham v. Burnham, 2014 WL (Miss. Ct. App. April 8, 2014).13 Burnham v. Burnham, 2014 WL (Miss. Ct. App. June 16, 2015)..13 Chamblee v. Chamblee, 637 So.2d 850 (Miss. 1994).12 Childs v. Childs, 806 So.2d 273, 275 (Miss. Ct. App. 2000) 15, 16 Cuccia v. Cuccia, 9 So.3d 1228 (Miss. 2012) 12 Dunaway v. Dunaway, 749 So.2d 1112, 1121 (Miss. Ct. App. 1999).10, 14 Dunn v. Dunn, 911 So.2d 591 (Miss. 2005)..12, 16 Durr v. Durr, 912 So.2d 1033, 1041 (Miss. Ct. App. 2005)..21 Evans v. Evans, 75 So.3d 1083, 1089 (Miss. Ct. App. 2011) 19 Ferguson v. Ferguson, 639 So.2d 921 (Miss. 1994).16, 18 Grant v. Grant, 765 So.2d 1263 (Miss. 2000) 21 Hankins v. Hankins, 729 So.2d at 1283, 1286 (Miss. 1999)...20 Irby v. Estate of Irby, 7 So.3d 223, 230 (Miss. 2009)..9, 15 King v. King, 946 So.2d 395, (Miss. Ct. App. 2003). 14 Page 3

4 Langdon v. Langdon, 854 So.2d 485 (Miss. Ct. App. 2003)..14 McKissack v. McKissack, (Miss. Ct. App. 2015)....9 Miss. Power & Light Co. v. Cook, 832 So.2d 474 (Miss. 2002) 19 Mixon v. Mixon, 734 So.2d 956, 960 (Miss. Ct. App. 1998).. 16 Newsom v. Newsom, 557 So.2d 511, 514 (Miss. 1990)...9 Phillips v. Phillips, 45 So.3d 684, 692 (Miss. Ct. App. 2010)..9 Phillips v. Phillips, 904 So.2d 999, 1001 (Miss. 2004).16 Proctor v. Proctor, 143 So.3d 615, 623 (Miss. Ct. App. 2014) 20 Seale v. Seale, 159 So.3d 987, 989 (Miss. Ct. App. 2014). 9, 13 Sproles v. Sproles, 782 So.2d 742, 747 (Miss. 2001) 16 Vaughn v. Vaughn, 56 So.3d 1283 (P17) (Miss. Ct. App. 2001)..9 Ward v. Ward, 131 So.3d 1244 (Miss. Ct. App. 2014).. 17, 18 Weathersby v. Weathersby, 693 So.2d 1348, 1354 (Miss. 1997). 15 Wheat v. Wheat, 37 So.3d 632 (Miss. 2010)..12 Wright v. Wright, 737 So.2d 408, 411 (Miss. Ct. App. 1999)..16 Page 4

5 STATEMENT OF THE CASE AND PROCEDURAL HISTORY This case arises from a complaint for the dissolution of the marriage of Monte Knight (hereinafter Monte ) and Monica Knight (hereinafter Monica ), originally filed by Monica on November 22, This divorce case was heard by the Chancery Court of Clarke County, Mississippi, Judge Lawrence Primeaux presiding. On January 12, 2012, the parties agreed to the terms of a temporary order, entitled Settlement Announcement and Temporary Judgment. That order provided that Monica would have the custody of the minor child born of the marriage and that Monte was to pay the marital home mortgage indebtedness, including taxes and insurance, as temporary child support, among other terms. That temporary order clearly stated that Monte would continue to run his business, Green Fleet Mowing Service, while Monica would continue to operate her Christmas tree/fruit stand business. The order further provided that neither party was to encumber or sell any property. MRE 1-9. After Monte failed to pay the mortgage as ordered, the marital home was foreclosed upon. On August 15, 2012, an amended temporary order was entered setting a new monthly child support payment, as Monte had failed to maintain the house payments which constituted his original child support obligation per the first temporary order. MRE Monica filed contempt against Monte regarding his violation of the prohibition against encumbrance and transfer of various items, including tractors, vehicles and Page 5

6 Monica s engagement ring, for which Monte was found in contempt. Testimony of Monte, MRE 43-47; Opinion, MRE ; Final Judgment, MRE 162. The parties stipulated to a divorce on the ground of Monte s uncondoned adultery. They further stipulated that Monica was to be awarded custody of the minor child. The parties submitted to the court the issue of distribution of the marital estate and attorney s fees. MRE After a trial on these issues, held September 23, 24, 25 and 26, 2014, the court entered an Opinion on October 15, 2014, granting Monica a divorce from Monte on the grounds of uncondoned adultery, awarding her custody of the minor child, and addressing the division of the marital assets and the awarding of attorney s fees. MRE Monica adopts the facts set forth in that Opinion as her own facts in this appeal. A Final Judgment of Divorce was entered by the Court on November 20, MRE On December 3, 2014, Monte filed a Motion for New Trial and/or Correction to Judgment, which raises the same points which Monte now brings to the appellate court s attention. On December 23, 2014, the trial court entered a Final Amended Judgment modifying some terms of the previously entered Judgment. MRE Monte subsequently filed this appeal, to which Monica now responds. Page 6

7 STATEMENT OF THE ISSUES I. WHETHER THE TRIAL COURT ACTED WITHIN ITS DISCRETION WHEN IT DIVIDED THE MARITAL ESTATE OF THE PARTIES. II. III. WHETHER THE TRIAL COURT ACTED WITHIN ITS DISCRETION WHEN IT AWARDED MONICA ATTORNEY S FEES. WHETHER THE TRIAL COURT SHOULD AWARD MONICA ATTORNEY S FEES FOR DEFENDING THIS APPEAL. Page 7

8 SUMMARY OF THE ARGUMENT Monica urges the Court to affirm the trial court s ruling. Chancellors are provided great deference in deciding matters of equitable division. In the present case, the trial court issued a 52 page opinion after hearing four days of testimony on the issues of distribution of the marital assets and attorney s fees. It is clear from reading the trial court s opinion that it fully considered the facts and evidence before issuing the ruling. This point is further bolstered by the fact that Monte filed a motion for reconsideration with the trial court, raising the same arguments as these on appeal, which led the Chancellor to re-examine those issues and enter a Final Amended Judgment. There exists no manifest error on the part of the chancellor in this matter and the ruling of the trial court should be affirmed. Page 8

9 Page 9 ARGUMENT I. WHETHER THE TRIAL COURT ACTED WITHIN ITS DISCRETION WHEN IT DIVIDED THE MARITAL ESTATE OF THE PARTIES. A. STANDARD OF REVIEW: Appellate courts review a chancellor s equitable division under the manifesterror standard of review. Vaughn v. Vaughn, 56 So. 3d 1283 (Miss. Ct. App. 2011) (cited with approval, McKissack v. McKissack, (Miss. Ct. App. 2015). This Court's standard of review in domestic [-]relations matters is extremely limited. Seale v. Seale, 159 So.3d 987, 989 (Miss. Ct. App. 2014)(quoting Phillips v. Phillips, 45 So.3d 684, 692 (Miss.Ct.App.2010). For domestic matters on appeal, this Court is required to respect the findings of fact made by a chancellor supported by credible evidence and not manifestly wrong. Irby v. Estate of Irby, 7 so.3d 223, 230 (Miss. 2009) (citing Newsom v. Newsom, 557 So.2d 511, 514 (Miss. 1990)). The core question for this court, therefore, is whether the chancellor committed manifest error when it divided the marital assets (and associated debts) of the two parties. Absent manifest error, the court should respect the findings of the chancellor and affirm his ruling. B. THE COURT ACTED WITHIN ITS DISCRETION WHEN IT EQUITABLY DIVIDED THE MARITAL ASSETS OF THE PARTIES AND PROPERLY CONSIDERED THE DEBT ASSOCIATED WITH ASSETS Monte argues that the trial court did not correctly value some items of property, devoting a substantial part of his brief to that proposition. As discussed above, Monte takes issue with the chancellor not simply averaging the numbers provided by the

10 parties. Neither party offered into evidence appraisals or any expert testimony regarding the valuation of any item. In light of Monte s complaints regarding valuations, it bears repeating what this court has said on multiple occasions, first in Dunaway v. Dunaway, 749 So. 2d 1112, 1121 (Miss. Ct. App. 1999): To the extent that the evidence on which the chancellor based his opinion was less informative than it could have been, we lay that at the feet of the litigants and not the chancellor. The chancellor appears to have fully explored the available proof and arrived at the best conclusions that he could, and we can discover no abuse of discretion in those efforts that would require us to reverse his valuation determinations. While averaging two given values is a method available to a chancellor to arrive at a value for a property, it is not a requirement, nor is it the only method a chancellor may use to value property. A chancellor is soundly within his discretion to value an item based on the testimony and evidence received; he is not bound to accept the valuation of one party or the other, or if a conflict exists, to average those figures. Monte also asserts that the chancellor did not take into consideration the debt associated with the assets when valuing the assets. This proposition is without merit. The chancellor was well aware of the debts associated with the assets. In his 52 page opinion, the chancellor was clear that Monte should be responsible for the debts he has incurred. The division of the marital estate should recognize that Monte will need to have the assets that are encumbered by debts. Opinion, MRE 143. The equitable division should be accomplished so that Monte gets the items having liens. He does not Page 10

11 have the funds to pay off liens to give Monica items debt-free. If Monica were to be given items with liens, it is problematical whether Monte would pay the liens, and it is likely that the parties would only wind up in further, expensive litigation. Id. Monte will be responsible for the tax liens and the debt. Id. It is without question that the chancellor carefully considered all the facts, including the debt associated with the assets, and expressly noted such in his opinion, before dividing the marital estate. Monte s position as stated in his brief ignores the fact that much of the debt assessed to him was a direct result of his failure to abide by the temporary order entered in this cause. These liens of which Monte complains are by and large newly created liens, liens made contrary to the order of the court. For example, on Page 11 of Appellant s Brief, his item 256 lists a debt of $16,650 on a 2008 Dodge truck. Gayle Massey s testimony goes to the heart of these contemptuous transactions. MRE Ms. Massey testified that the truck was unencumbered when Monte used it as collateral December 13, MRE 22A-22D. Ms. Massey further testified that Monte did not notify her that a court order prohibited his encumbering the vehicle. MRE 22B. In March 2014, prior to the entry of the final order and well prior to this appeal, the vehicle in question was sold to, and the encumbrance thereon paid in fully by, Valley Storm Shelters. 1 MRE Ms. Massey further testified that Monte came to her to secure loans encumbered by other vehicles after entry of the temporary order. MRE 26-1 As this debt has been paid for quite some time, well before the entry of the Final Judgment, it is curious that Monte addresses it in his brief. Page 11

12 36. In addition to loans through Ms. Massey encumbering the tractors (MRE 37-42), Monte had obtained a $50,000 loan from Floyd McCarra, on which the statute of limitations had expired prior to the entry of the Final Judgment. This debt was included in Appellant s Brief on page 11 as part of item 230, being $50,000 of the $66,733 listed (one presumes the balance is that owed to Ms. Massey). Because of these actions, the chancellor found Monte in contempt. Monte continued to defy the trial court with continued contemptuous actions relating to encumbering marital property. MRE Monte asserts that his equitable division of the marital assets is impermissibly low, and that it is not a fair distribution. However, on countless occasions, Mississippi appellate courts have confirmed that equitable distribution does not mean and equal distribution. See eg. Cuccia v. Cuccia, 9 So.3d 1228 (Miss. 2012); Wheat v. Wheat, 37 So.3d 632 (Miss. 2010); Dunn v. Dunn, 911 So.2d 591 (Miss. 2005); Chamblee v. Chamblee, 637 So.2d 850 (Miss. 1994). This court addressed a similar situation just last year in Seale v. Seale. There, the chancellor awarded the husband most of the marital debt, leaving him with a substantially smaller portion of the marital estate than the wife (in fact, that husband received a far smaller share of the marital estate than did Monte in the instant case). There as here, the husband was the principle factor in the termination of the marriage. 2 There as here, the wife was given the responsibility of raising a minor child, with the 2 This matter came to trial on stipulation of the parties for a divorce on the grounds of Monte s uncondoned adultery. In the Seale case, divorce was granted based on uncondoned adultery of the husband as well. Page 12

13 accompanying burdens of providing food and shelter. The totality of the record in that case, as in this case, supported the chancellor s findings and conclusions regarding the division of the marital estate. Seale, supra. Monte cites to Burnham v. Burnham for the proposition of a fairness doctrine in division of the marital estate, but cites to an opinion that has been retracted. Burnham v. Burnham, 2014 WL (Miss. Ct. App. April 8, 2014). The reported version of the case omits the fairness doctrine cited to by Monte. Burnham v. Burnham, 2014 WL (Miss. Ct. App. June 16, 2015). In the reported opinion, the court affirmed the unequal award, stating [g]iven the chancellor s thorough analysis of the Ferguson factors, supported as it is by record evidence, we can find no abuse of discretion in the equitable, if unequal award. Id at 22. As in Burnham, the chancellor in this case made a thorough analysis of the Ferguson factors before issuing his opinion. Monte asserts that it is improper that he be assigned the entirety of the tax debt. As the evidence at trial demonstrated, that tax debt was incurred solely under Monte s business, for which he filed taxes under his personal social security number. MRE The chancellor noted that the tax return indicated Monte operated the business as a sole proprietor, had a bank account in his name doing business as Green Fleet Mowing Service, and that the tax liens are all listed under Monte s personal social security number. Opinion, MRE 112. When considering the whole marital estate and the debts, the chancellor came to the proper conclusion that Monte, who applied the losses from the business on his own individual tax return after the temporary hearing, Page 13

14 should be assessed the tax debt. MRE This approach comports with King v. King, 946 So.2d 395, (Miss. Ct. App. 2003), where a judgment for unpaid taxes was assessed against the husband where he was in charge of managing the business that accrued that tax debt. Monte further finds fault with the allocation of other debt for marital property being assessed against him by the chancellor. Typically, debt securing a marital asset is assessed to the party receiving the marital asset. See e.g., Barnett v. Barnett, 908 So. 2d 833 (Miss. Ct. App. 2005); Langdon v. Langdon, 854 So. 2d 485 (Miss. Ct. App. 2003); Dunnaway v. Dunnaway, 749 So. 2d 1112 (Miss. Ct. App. 1999). In Dunnaway, the husband was awarded debt along with the business to which the debts were associated, much as in the instant case. In the present case, the chancellor explained his logic for pairing the assets with the debts and for assessing them to Monte, further providing evidence that the chancellor considered the debt in arriving at the equitable distribution of the marital estate. Opinion, MRE Monte makes allegations concerning the valuation of the two estates that do not follow logically. Looking to his chart on Page 4 of the Appellee s Brief, one observes that in his analysis, Monte has both awarded himself the debt associated with his assets plus added the positive value of that debt to Monica s column, in what is ill-founded logic at best. In truth, Monte s portion of the marital estate should be reduced by the associated Page 14

15 debt 3, but one cannot at the same time add that value back to the other side (otherwise, the debt is counted twice). In adjusting the division of martial estate, a chancellor may take into account the prior distribution of marital assets by a party, whether the distribution was by mutual agreement or unilateral action. Childs v. Childs, 806 So.2d 273, 275 (Miss. Ct. App. 2000) (citing Weathersby v. Weathersby, 693 So.2d 1348, 1354 (Miss. 1997)). As noted above, Monte s actions, in contravention of the temporary order entered by the trial court, resulted in debt being incurred and assets being added and deleted. The chancellor was entitled to take these facts into account when making a final distribution of the estate. Another debt assessed to Monte arises from his business operations. In Irby the court affirmed a chancellor s assessment of 75% of a tax debt to the husband who had operated a business and failed to pay taxes. Irby at 234. That court, however, noted that the wife had jointly spent the proceeds of a lawsuit filed to recover those taxes, thereby incurring a direct benefit related to the taxes which the trial court evidently considered. Id. Both Monte and Monica presented testimony concerning the tax debt and who should be responsible for the debt. No accountant or similar tax expert testified on behalf of either party regarding the taxes or business responsibilities. Such a conflict in testimony presents a classic question of credibility, which is to be resolved by the 3 That is not to say that every chart must fully and accurately reflect both the value and the debt. So long as the opinion/judgment/order is clear that the chancellor considered debt issues in making the equitable distribution, no fault should be found. Page 15

16 chancellor. Childs at 275 (citing Brawly v. Brawly, 734 So.2d 237, 241 (Miss. Ct. App. 1999) and Mixon v. Mixon, 734 so.2d 956, 960 (Miss. Ct. App. 1998)). Where there is conflicting testimony, the chancellor, as trial of fact, is the judge of the credibility of the witness and the weight of their testimony, as well as the interpretation of evidence where it is capable of more than one reasonable interpretation. Bowen v. Bowen, 982 So.2d 385, 395 (Miss. 2008) (internal citations omitted, citing Sproles v. Sproles, 782 So.2d 742, 747 (Miss. 2001) and others). In the present case, the court found the testimony of Monica to be more credible, resulting in, among other things, the tax liability being assessed to Monte. The law is well settled that this Court is bound by the chancellor s finding of credibility. Childs at 275. (citing Wright v. Wright, 737 So.2d 408, 411 (Miss. Ct. App. 1999) and Allred v. Allred, 735 So.2d 1064, 1070 (Miss. Ct. App. 1999)). Monte alleges that the chancellor did not properly follow the edicts of Ferguson and its progeny. This argument is without merit given even a cursory review of the chancellor s 52 page opinion. When considered in light of the testimony and evidence received by the trial court, and given the discretion afforded chancellors in making such determinations, it is clear that the chancellor s Ferguson analysis was well founded. Appellate courts should not conduct a Ferguson analysis anew: Rather the Court will review the chancellor s judgment to ensure that he followed the appropriate standards and did not abuse his discretion. Dunn at 596 (citing Phillips v. Phillips, 904 So.2d 999, 1001 (Miss. 2004). Page 16

17 First, Monte reiterates his argument that the chancellor failed to consider the debts associated with the assets. As noted above, the chancellor did in fact expressly consider those debts and reference them in his opinion. Further, this very same issue was brought to the court s attention via a motion to reconsider. After reviewing the motion, the chancellor amended certain portions of his ruling but generally affirmed the ruling, further demonstrating that he was cognizant of the debt issues raised by Monte and evidencing that he had considered them in reaching his opinion. The chancellor distributed the estate as he deemed proper under Mississippi law and in accordance with his discretion as chancellor. Next, Monte spends a great deal of time discussing the wasteful dissipation of marital assets. Monte cites to Ward v. Ward to argue that the business losses should not be considered waste. Ward v. Ward, 131 So.3d 1244 (Miss. Ct. App. 2014). But note that in Ward the Court of Appeals did not assert that business losses do not constitute waste, they simply deferred to the discretion of the chancellor, who had arrived at that conclusion after his full consideration of the facts, testimony, record and arguments. Compare Ward with the facts of this case, where the chancellor also benefited from substantial testimony, pleadings, exhibits and arguments. The chancellor concluded, after weighing the evidence and arguments that had been presented, that Monte s conduct constituted wasteful dissipation of the marital assets in multiple regards. Page 17 Monte has wastefully dissipated marital assets in several respects: (1) he did not pay the mortgage debt, taxes or hazard insurance on the former marital residence, causing its loss as an asset; (2) he created new debt on marital assets after the separation, against the express order of the court;

18 (3) he sold marital assets after the separation, against the express order of the court; (4) he allowed his Green Fleet business to lose lucrative contracts, causing financial harm both to himself and Monica; (5) he invested money in fishing equipment and then [sic] at a loss when the parties were not in a position to afford such an extravagance; (6) he allowed tax liens for undeposited payroll taxes to accumulate, which adversely affected the parties ability to refinance the balloon note on their home, and the balloon note was incurred to prop up Monte s failing business. Opinion, MRE It was equitable, if unequal, for the chancellor to divide the marital estate in the manner in which he did. As in Ward, the chancellor addressed all Ferguson factors in distributing the marital estate. As in Ward, this court should defer to the wide latitude in fashioning equitable remedies in domestic relations matters which is the solemn responsibility of the chancellor. Ward at It bears mentioning that the business losses in question here were not the result of a single risk (such as the Kona investment in Ward), but were instead the result of a long series of poor business decisions made by one party, Monte. The business was in Monte s name and operated under Monte s social security number. Monte made all the decisions for the business. Monte failed to pay the taxes due, almost from inception of the business, resulting in multiple tax liens filed against Monte personally. Monte chose to engage in other recreational activities, such as fishing with his girlfriend, over trying to save his business. 4 Monte applied the losses of the business to this own separate tax 4 In his brief, Monte alleges that his second business was a professional fishing business. However, aside from one victory in 2006 (from which he never actually received cash, only a boat), no net income was ever generated by the supposed business. Instead, the fishing venture resulted in a Page 18

19 returns filed under his own social security number. For better or worse, Monte was the business and in the chancellor s judgment he was entitled to both the assets and the liabilities that accompanied the business. In the final analysis, the chancellor, who had the benefit of voluminous pleadings and a great amount of testimony concerning these issues, acted within his discretion and in compliance with applicable law in dividing the marital assets. The fact that Monte is not content with the division is not surprising, but it is not well founded in law. The chancellor s judgment dividing the marital assets should stand as set forth in his Final Amended Judgment. II. WHETHER THE TRIAL COURT CORRECTLY FOLLOWED THE LAW IN AWARDING MONICA ATTORNEY S FEES. The standard of review regarding an award of attorney s fees on appeal is abuse of discretion. Miss. Power & Light Co. v. Cook, 832 So. 2d 474 (Miss. 2002). The appellate court should be reluctant to disturb a chancellor s discretionary determination whether to award attorney s fees or the amount of any award. Evans v. Evans, 75 So. 3d 1083, 1089 (Miss. Ct. App. 2011). The appellate courts take this deferential position, in part, because it is the chancellor, as finder of fact, who is in the best position to make a determination on issues net loss of untold dollars from entry fees (typically $3,500 or more), upgraded fishing and boating equipment and new sponsored boats every year on a delayed billing basis. Opinion, p. 8. Further, Monte did not file tax returns reflecting this alleged fishing business. Page 19

20 such as the economic ability of a litigant to pay their attorney s fees. If this court began to invade that province, it would find itself inundated with the appeals of countless parties who do not agree with a chancellor s well-reasoned decision, in the hopes that a different set of judges would view the facts differently. Page 20 Further, a chancellor should make specific findings regarding the recipient s ability to pay. Proctor v. Proctor, 143 So.3d 615, 623, (Miss. Ct. App. 2014) (citing Hankins v. Hankins, 729 So. 2d at 1283, 1286 (Miss. 1999)). Here, after having had the benefit of receiving testimony regarding the income of the parties and reviewing their respective Rule 8.05 forms, the chancellor made specific findings in support of his decision to award attorney s fees. The court finds that Monica has provided sufficient evidence in the record that she does not have adequate funds to pay all of her own attorney s fees. The court finds that a reasonable attorney s fee in this case is $10,000. Monica has already paid $2,500 of that amount. The court finds, therefore that Monte should be ordered to pay Monica the sum of $7,500 as a reasonable attorney s fee... Opinion, MRE 158. As previously discussed, the chancellor is in the best position after having reviewed the rather extensive record to make a determination as to whether a litigant has the ability to pay. Here, after four days of trial, numerous motions and hearings and careful review of the parties financial information, the chancellor was very familiar with the relative financial positions of Monica and Monte. The chancellor recognized from sufficient evidence in the record that Monica did not have the ability to pay her attorney s fees. Id. Monte s contentions in this Issue are without merit and should be denied; the trial court s award of attorney s fees should be affirmed.

21 III. WHETHER MONICA SHOULD BE AWARDED COSTS AND ATTORNEY S FEES FOR DEFENDING THIS APPEAL Monica respectfully requests that the Court award her costs and attorney s fees for defending this case on appeal, pursuant to M.C.A , Grant v. Grant, 765 So. 2d 1263 (Miss. 2000) and Durr v. Durr, 912 So. 2d 1033, 1041 (Miss. Ct. App. 2005). CONCLUSION Based on the positions stated in this Appellee s Response Brief, together with the authorities cited above, Monica Knight respectfully requests that this Honorable Court affirm the ruling of the trial court. Further, Monica respectfully requests that the Court award her costs and attorney s fees for defending this case on appeal. Respectfully submitted this the 17 th day of November, MONICA KNIGHT, APPELLEE /s/mdgoggans MICHAEL D. GOGGANS (MSBN 10581) THE GOGGANS LAW FIRM, PLLC TH AVENUE MERIDIAN, MISSISSIPPI Phone No. (601) Fax No. (601) michael@gogganslaw.com ATTORNEY OF RECORD FOR APPELLANT Page 21

22 CERTIFICATE OF SERVICE I hereby certify that I electronically filed this APPELLEE S RESPONSE BRIEF using the Court s ECF system. Based on the records currently on file, the Clerk of Court will transmit a Notice of Electronic Filing to the following ECF registrants, being all counsel of record in this case. William B. Jacob Joseph A. Kieronski, Jr. Daniel P. Self, Jr. Self, Jacob &Kieronski, LLP Robert D. Jones Lawyers, PLLC This the 17 th day of November, /s/ Michael D. Goggans MICHAEL D. GOGGANS Page 22