                    IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2004-CA-02365-SCT

NITA ELAINE SNYDER DOBBINS,
INDIVIDUALLY AND AS NATURAL MOTHER
AND NEXT FRIEND OF THE INFANT CHILD
NAMED IN THE PETITION

v.

JOHNNY LEE COLEMAN

DATE OF JUDGMENT:                           11/08/2004
TRIAL JUDGE:                                HON. MITCHELL M. LUNDY, JR.
COURT FROM WHICH APPEALED:                  DESOTO COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                     H R. GARNER
ATTORNEY FOR APPELLEE:                      JOHN WATSON
NATURE OF THE CASE:                         CIVIL - DOMESTIC RELATIONS
DISPOSITION:                                AFFIRMED - 04/13/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       DICKINSON, JUSTICE, FOR THE COURT:

¶1.    The first question presented is whether upon a determination of paternity, Mississippi

law requires the natural father to assume sole financial responsibility for the child’s medical

expenses. The second is whether the chancellor’s award of attorney’s fees to the mother was

reasonable and proper.

                    BACKGROUND FACTS AND PROCEEDINGS

¶2.    On March 31, 2003, Nita Elaine Snyder Dobbins (“Ms. Dobbins”) gave birth to

T.H.C. (“the Child”) as a result of relations between herself and Johnny Lee Coleman (“Mr.

Coleman”). The Child was born out of lawful wedlock. Ms. Dobbins filed a Petition to
Establish Paternity for Filiation, Child Support and Other Relief, asking the chancellor to

make a determination of paternity, give her exclusive care, custody, and control of the Child,

and require Mr. Coleman “to pay all reasonable support, maintenance, medical bills incurred

for and in (sic) behalf of the child, to maintain medical insurance on the child, to pay all

medical bills, as well as pay all medical bills incurred.”

¶3.      Mr. Coleman filed an Answer and Counter-Petition, admitting he was the Child’s

father, but denying sole responsibility for any expenses or medical bills. He requested the

court give him “reasonable, specific and designated visitation with the minor child” and joint

legal custody of the Child. Mr. Coleman also claimed Ms. Dobbins should pay half the

Child’s medical expenses not covered by health insurance.

¶4.      In his Temporary Order, the chancellor found Mr. Coleman was the father of the Child

and required him to pay $200 per month in child support to Ms. Dobbins until the case came

for a final hearing. The chancellor also granted Mr. Coleman temporary visitation with the

Child.

¶5.      In her Answer to Counter-Petition, Ms. Dobbins denied Mr. Coleman was entitled to

joint legal custody of the Child. She again asserted that, once Mr. Coleman was adjudicated

the father, Mississippi law requires him to be responsible for all the education and other

expenses incurred on behalf of the Child.

¶6.      In his Order of Filiation, the chancellor found Mr. Coleman was the natural father of

the Child. The chancellor awarded the parties joint legal custody, granted physical custody



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to Ms. Dobbins, and granted visitation rights to Mr. Coleman. The chancellor ordered Mr.

Coleman to include the Child under his group medical insurance and to continue the $200

per month support payments until a final hearing on the support matter, noting that the final

support amount could be adjusted in light of the guidelines found in Mississippi Code

Annotated Section 43-19-101. Finally, the chancellor took under advisement the issues of

payment of past and future medical expenses and the awarding of reasonable fees.

¶7.    After briefing by the attorneys, the chancellor issued his opinion on these matters from

the bench on November 8, 2004. The chancellor stated “that to make a father solely

responsible for all past and future medical expenses, regardless of the party’s financial status

and wherewithal would be a violation of equal protection laws and would be making a

determination based solely on sex and not financial ability and cannot be constitutionally

permissible.” The chancellor entered his Order on November 15, 2004, making the parties

“equally responsible for the balances of the existing medical bills” and requiring them to split

all future medical bills as well. The chancellor also ordered Mr. Coleman to reimburse Ms.

Dobbins for the reasonable attorney’s fees she incurred in bringing and maintaining her

Petition to Establish Paternity for Filiation, Child Support and Other Relief.

¶8.    Ms. Dobbins now appeals the chancellor’s determination that Mr. Coleman would be

responsible for only half of the Child’s medical expenses, rather than the full amount. Mr.

Coleman cross-appeals with respect to the chancellor’s award of attorney’s fees.




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                                      DISCUSSION

       I.     Whether the chancellor erred in holding that the natural father
              of an illegitimate child cannot be made automatically responsible
              for all past, present, and future medical expenses of the child.

¶9.    On appeal, Ms. Dobbins claims the chancellor committed reversible error by declaring

Mississippi Code Annotated Section 93-9-7 unconstitutional and holding that the father of

an illegitimate child cannot be made solely responsible for the past, present, and future

medical expenses of his child. Mr. Coleman responds that the chancellor correctly held that

Section 93-9-7 was unconstitutional because the provision “[does] not serve its stated

legislative purpose in a manner which can pass scrutiny.” Section 93-9-7 states:

       Obligations of the father. The father of a child which is or may be born out of
       lawful matrimony is liable to the same extent as the father of a child born of
       lawful matrimony . . . for the reasonable expense of the mother’s pregnancy
       and confinement, and for the education, necessary support and maintenance,
       and medical . . . expenses of the child. . . .

Another statute relevant to this issue, according to the chancellor and the parties, is

Mississippi Code Annotated Section 43-19-101(6), which states in part, “[a]ll orders

involving the support of minor children, as a matter of law, shall include reasonable medical

support.”

¶10.   The parties’ arguments in this case rest on the assumption that the chancellor actually

held that Section 93-9-7 violates the Equal Protection Clause of the Fourteenth Amendment.

Looking carefully at the language of the Order, though, reveals that the chancellor did not




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declare any portion of the Mississippi Uniform Law on Paternity1 unconstitutional, and

rightly so; rather, he correctly held that an interpretation of the statutes automatically holding

the father solely responsible for all of his child’s medical expenses is impermissible. As

previously noted, Section 93-9-7 states, “ [t]he father of a child which is or may be born out

of lawful matrimony is liable to the same extent as the father of a child born of lawful

matrimony. . . .” (emphasis added). In his Order, the chancellor stated:

       To hold the father solely responsible for the payment of all past, present and
       future medical bills not covered by health insurance would be unjust,
       unconscionable, and would violate equal protection laws under the provisions
       of Miss. Code Ann. Section 93-9-7, 93-9-9, 93-3-11, 93-9-15, 93-9-29, 93-9-
       45. Mississippi Code Annotated Section 43-19-101(6) provides that all orders
       involving support of minor children, as a matter of law, shall include
       reasonable medical support.

¶11.   A precise reading of both the chancellor’s bench opinion and Order confirms he did

not declare the statute unconstitutional.       The chancellor merely rejected one party’s

interpretation of the provision automatically requiring a father to pay all medical expenses

and commented that such an interpretation would be unconstitutional. The statute plainly

provides that someone like Mr. Coleman, the father of a child born out of lawful matrimony,

is liable to the same extent as the father of a child born of lawful matrimony - no greater

extent, no lesser extent.

¶12.   As we noted in Moulds v. Bradley, 791 So.2d 220, 229 (Miss. 2001), “[a]fter an

adjudication of paternity, an illegitimate child’s legal relationship to the father with regard


       1
           Miss. Code Ann. §§ 93-9-1 et seq. (1972).

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to financial support is no different than that of a legitimate child born to a marriage that

ended in divorce.” (per concurring opinion of Diaz, J., with two Justices joining and three

Justices joining in part). In Moulds, after the Chancery Court entered a decree finding

Moulds to be the natural father of Bradley’s child, the court ordered Moulds to pay weekly

child support of fifty dollars and to provide the child with medical and dental insurance once

financially able. Id. at 223. Such a child support order was squarely within the province of

the chancellor. Miss. Code Ann. § 43-19-101(6); Miss. Code Ann. § 93-9-29; Miss. Code

Ann. § 93-11-65(1). The court never required the father to pay all past, present, and future

medical expenses for the illegitimate child. Moulds, 791 So.2d at 223. The support was

subject to adjustment, and once Moulds’ income increased, the court modified the amount

of support pursuant to the guidelines in Section 43-19-101. Id. at 226.

¶13.   The chancellor in this case assumed a similar course of action. In its Order of

Filiation, the court found Mr. Coleman to be the natural father of the Child. The court also

ordered Mr. Coleman to pay $200 in monthly support and to include the Child under his

group medical insurance. Finally, the court noted “that at the final hearing of this cause the

child support may be increased or reduced by the Court, depending upon adjusted gross

income as defined as (sic) Miss. Code Ann. § 43-19-101 (1972).”

¶14.   The chancellor, in his November 15 Order, determined that the parties should be

equally responsible for the Child’s medical expenses, a result clearly permitted by Section

93-9-7 because, “[t]he father of a child which is . . . born out of lawful matrimony is liable



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to the same extent as the father of a child born of lawful matrimony . . . .” The Order noted

in conclusion that, “[a]ll aspects of the Order of Filiation entered on September 24, 2004,

shall remain in full force and effect,” making the final amount of support subject to

adjustment, just as in Moulds.

¶15.   Nothing in the statutes or in our jurisprudence demands that the father of an

illegitimate child be automatically liable for all of his child’s medical expenses. The

chancellor correctly arrived at a permissible financial arrangement clearly contemplated by

the statute where both parents share past and future medical expenses equally. Mississippi

Code Annotated Section 93-11-65(2) even provides, “where the proof shows that both

parents have separate incomes or estates, the court may require that each parent contribute

to the support and maintenance of the children in proportion to the relative financial ability

of each.”

¶16.   The chancellor noted in the Hearing for Oral Opinion that an interpretation of Section

93-9-7 requiring the father of an illegitimate child to pay all medical expenses conflicted with

Mississippi Code Annotated Section 43-19-101(6), which states, “[a]ll orders involving

support of minor children, as a matter of law, shall include reasonable medical support.” Ms.

Dobbins also acknowledges the conflict between an interpretation of Section 93-9-7

requiring the father to automatically provide full medical support, and the language of

Section 43-19-101(6) which requires reasonable medical support. Once again, Section 93-9-

7 states that the father of an illegitimate child must pay reasonable medical expenses to the



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same extent as the father of a child born of lawful matrimony. The correct interpretation of

these statutes demonstrates how the provisions compliment each other, rather than conflict

with each other.

¶17.   There is no reason to conduct a constitutional analysis of Section 93-9-7 on equal

protection grounds because the chancellor simply did not hold that the provision violated the

Equal Protection Clause of the Fourteenth Amendment. Additionally, at no point did either

party argue the constitutionality of Section 93-9-7 below. Therefore we decline to address

any of the parties’ arguments as to the constitutionality of the provision. See Estate of

Patterson v. Patterson, 798 So.2d 347, 351 (Miss. 2001); Pickens v. Donaldson, 748 So.2d

684, 692 (Miss. 1999).

¶18.   The chancellor arrived at a permissible result under Section 93-9-7 and other statutory

child support provisions, and we may only reverse the chancellor’s findings when “the

chancellor was manifestly wrong, clearly erroneous, or applied the wrong legal standard.”

Miss. Dep’t of Human Servs. v. Murr, 797 So. 2d 818, 820 (Miss. 2000). The chancellor

applied the correct standard, and there is no basis upon which to reverse his determinations.

¶19.   Therefore, we affirm the chancellor’s September 24 Order of Filiation and the

November 15 Order.

       II.    Whether the chancellor erred in ruling that Ms. Dobbins was
              responsible for half of the Child’s past and future medical bills.

¶20.   Ms. Dobbins’ second issue on appeal basically restates her foundation argument from

the first issue - that Mr. Coleman should be required to pay all past, present, and future

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medical bills. Again, Mississippi Code Annotated Section 93-9-7 clearly permits some

division of the financial burden for a child born out of wedlock because the father of a child

born out of lawful matrimony “is liable to the same extent as the father of a child born of

lawful matrimony.” Mr. Coleman’s liabilities are not automatically greater or less simply

because his child was born out of lawful matrimony. Assigning the financial responsibility

for the child’s medical expenses is properly left to the chancellor. Because the chancellor’s

decision was not manifestly wrong or clearly erroneous based on the record, we affirm the

September 24 Order of Filiation and November 15 Order.

       III.   Whether the chancellor abused his discretion in awarding Ms.
              Dobbins’ attorney’s fees against Mr. Coleman.

¶21.   On cross-appeal, Mr. Coleman argues that the chancellor’s award of attorney’s fees

to Ms. Dobbins pursuant to Mississippi Code Annotated Section 93-9-45 was both

unconstitutional under the Equal Protection Clause of the Fourteenth Amendment and

unreasonable in light of the facts. The first claim is procedurally barred, while the second

claim is without merit.

¶22.   Section 93-9-45 of the Mississippi Uniform Law on Paternity controls the awarding

of the petitioner’s court costs and attorney’s fees against a defendant after the entry of an

Order of Filiation and states:

       If the court makes an order of filiation, declaring paternity and for the support
       and maintenance, and education of the child, court costs, including the cost of
       the legal services of the attorney representing the petitioner, expert witness
       fees, the court clerk, sheriff and other costs shall be taxed against the
       defendant.

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¶23.   Mr. Coleman’s claim regarding this provision’s unconstitutionality is procedurally

barred for failure to raise the issue in the court below. At no point did Mr. Coleman ever

argue that Section 93-9-45 violated the Equal Protection Clause of the Fourteenth

Amendment on the basis of sex. As such, we will not review this assignment of error. See

Patterson, 798 So.2d at 351; Pickens, 748 So.2d at 692.

¶24.   Mr. Coleman’s second claim - that the attorney’s fees awarded to Ms. Dobbins were

unreasonable - is without merit. Section 93-9-45 provides that when an Order of Filiation

is entered by the court, the defendant will be assessed “the cost of the legal services of the

attorney representing the petitioner . . . .” Here, the chancellor entered an Order of Filiation

on September 24, 2004, with respect to the petitioner, Ms. Dobbins, and the defendant, Mr.

Coleman. The chancellor, in his November 15 Order, held that the attorney’s fees incurred

by Ms. Dobbins were reasonable and were to be paid by Mr. Coleman.

¶25.   While the awarding of attorney’s fees and costs appears automatic pursuant to the

statute, we have held that those fees must be reasonable. R.E. v. C.E.W., 752 So.2d 1019,

1028 (Miss. 1999). The record in this case includes a detailed Attorney’s Report of Fees

Incurred for Nita Elaine Snyder Dobbins with an itemization of all charges and expenses

related to this paternity action, an employment contract, and affidavits from two attorneys

practicing in DeSoto County as to the usual and customary fees charged by attorneys in

domestic relations cases in the community.2 In his opinion, the chancellor noted, “[t]he

       2
        A third affidavit concerning the reasonableness of Ms. Dobbins’ attorney’s fees was
provided by H.R. Garner, counsel for Ms. Dobbins. Because of the potentially self-serving nature

                                              10
attorney’s fees are reasonable, and the statute also says that the future father shall pay

attorney fees if they are reasonable and they are granted. He shall pay them.”

¶26.   This Court “will not disturb the factual findings of a chancellor when supported by

substantial evidence unless the Court can say with reasonable certainty that the chancellor

abused his discretion, was manifestly wrong, clearly erroneous or applied an erroneous legal

standard.” Cummings v. Benderman, 681 So.2d 97, 100 (Miss. 1996). The chancellor’s

decision to award attorney’s fees pursuant to Section 93-9-45 cannot be characterized as an

abuse of discretion, manifestly wrong, or clearly erroneous.

¶27.   Mr. Coleman’s reliance on Clark v. Whiten, 508 So.2d 1105 (Miss. 1987) and McKee

v. McKee, 418 So.2d 764 (Miss. 1982), is misplaced. Clark involved a jury’s, rather than a

judge’s, awarding of attorney’s fees without any evidence such as the reasonableness of the

hourly rate charged by the petitioner’s attorneys. Clark, 508 So.2d at 1108-09. In contrast,

the fees charged by Ms. Dobbins’ attorney fall within the customary charge in the

community, as explained in two attorney affidavits. In McKee, we found that fees based on

an estimated 850 hours worked on the case were too speculative to support an award of

attorney’s fees. McKee, 418 So.2d at 766-67. Here, the chancellor was provided with an

itemized account of all of Ms. Dobbins’ attorney’s fees and charges. Given the substantial

evidence supporting the chancellor’s award of attorney’s fees to Ms. Dobbins, we decline to

disturb the chancellor’s findings. Mr. Coleman’s assignment of error fails on the merits.



of this third affidavit, we decline to consider it when assessing the “reasonableness” issue.

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                                      CONCLUSION

¶28.   Contrary to the opinions expressed by the parties, the chancellor did not declare

Mississippi Code Annotated Section 93-9-7 on the obligations of an illegitimate child’s

father to be unconstitutional. The chancellor merely stated that an inaccurate interpretation

of the statute making the father solely responsible for all of his child’s medical expenses

would violate equal protection laws under the Mississippi Uniform Law on Paternity. Under

the statutory scheme for establishing child support, as well as this Court’s jurisprudence, the

chancellor made a permissible division of the financial responsibility for medical expenses

between both parents.      Because the chancellor applied the correct standard and his

determination was neither manifestly wrong nor clearly erroneous, this Court affirms the

disposition.

¶29.   Mr. Coleman never raised the issue of the constitutionality of awarding attorney’s fees

under Section 93-9-45 before the trial court, so we are procedurally barred from reviewing

that assignment of error. Finally, the record does not support Mr. Coleman’s assertion that

Ms. Dobbins’ attorney’s fees were unreasonable. Therefore, we also affirm the chancellor’s

award of Ms. Dobbins’ attorney’s fees against Mr. Coleman.

¶30.   AFFIRMED.

    SMITH, C.J., WALLER, P.J., EASLEY, CARLSON AND GRAVES, JJ.,
CONCUR. COBB, P.J., DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.




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