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Sullivan v. Stringer4/20/1999
to be shifted from parent to parent").
Issue 2: Attorney's fees.
. The awarding of attorney's fees in a domestic relations matter rests with the trial court's sound discretion and will not be disturbed on appeal absent manifest error or abuse of that court's discretion. Suess v. Suess, 718 So. 2d 1126, 1129 (Miss. Ct. App. 1998). Fees were not awarded here.
. We are pointed by Ms. Sullivan to Gregg v. Montgomery, as support for a finding that she was entitled to attorney's fees. 587 So. 2d 928 (Miss. 1991). Gregg can certainly be read to support such a Conclusion.
"When the husband files a petition against his former wife in which he is unsuccessful, he is generally assessed with attorney's fees. This Court has said that when a former husband brings his former wife into court:"
" eeking, without justification, alteration of his liability to her from a Court decree fixing it, should pay for her an attorney's fee. Otherwise, he could sue her so often as to impose an oppressive burden on her allowance in resisting his repeated applications." Id. at 934 (quoting Cumberland v. Cumberland, 564 So.2d 839, 845 (Miss.1990)).
. Since Ms. Sullivan has so far been the unsuccessful party, she would not be entitled to attorney's fees. However, if after remand the chancellor determines to return custody of the child to her, then he can reconsider the issue of fees.
. Since we are not holding that custody necessarily should be returned to Ms. Sullivan, but only concluding that based on the findings made by the chancellor a change has not been justified, we order that the custody that has been maintained during the pendency of this appeal continue until the chancellor has had an opportunity to address the case on remand.
. THE JUDGMENT OF THE SIMPSON COUNTY CHANCERY COURT IS REVERSED AND REMANDED ON THE ISSUE OF CHILD CUSTODY AND ATTORNEY'S FEES FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.
McMILLIN, C.J., KING, P.J., BRIDGES, COLEMAN, DIAZ, IRVING, LEE, PAYNE, AND THOMAS, JJ., CONCUR.
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