"{\"id\": \"7446365\", \"name\": \"Marvin POWELL v. Christine A. POWELL\", \"name_abbreviation\": \"Powell v. Powell\", \"decision_date\": \"1994-10-20\", \"docket_number\": \"No. 92-CA-00497\", \"first_page\": \"269\", \"last_page\": \"281\", \"citations\": \"644 So. 2d 269\", \"volume\": \"644\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T18:45:02.858542+00:00\", \"provenance\": \"CAP\", \"judges\": \"HAWKINS, C.J., DAN M. LEE, P.J., and SULLIVAN, PITTMAN, BANKS and McRAE, JJ., concur.\", \"parties\": \"Marvin POWELL v. Christine A. POWELL.\", \"head_matter\": \"Marvin POWELL v. Christine A. POWELL.\\nNo. 92-CA-00497.\\nSupreme Court of Mississippi.\\nOct. 20, 1994.\\nHalbert E. Doekins, Jr., Jackson, for appellant.\\nRoy J. Perilloux, Perilloux & Milner, Sean A. Milner, Jackson, for appellee.\", \"word_count\": \"7236\", \"char_count\": \"43400\", \"text\": \"ON PETITION FOR REHEARING\\nJAMES L. ROBERTS, Jr., Justice,\\nfor the Court:\\nThe original opinions are withdrawn and these opinions are substituted therefor.\\nThis appeal arises from an order of the Hinds County Chancery Court, First Judicial District, transferring custody of sixteen-year-old Tracee Resehell Powell from her father Marvin to her mother Christine, awarding Christine child support and attorney's fees, and providing for the garnishment of Marvin's wages. The order had been entered after a hearing unattended by Marvin or counsel on his behalf. We find insufficient evidence that Marvin received notice of the hearing, and hold that he was denied due process by the adjudication of custody and support matters in his absence. We reverse and remand for a new hearing.\\nA.\\nFACTS AND PROCEDURAL HISTORY\\nMarvin and Christine Powell were married in 1972 and had two daughters. Sherrie Mischelle was born in 1973, and Tracee Resc-hell in 1976.\\nOn October 4, 1985, the Chancery Court of the First Judicial District in. Hinds County entered a judgment of divorce. Christine was awarded custody of the girls, then ages 12 and 9, and Marvin was ordered to pay child support in the amount of $300.00 per month until June 1, 1986, at which point the amount would increase to $400.00 per month.\\nOn September 5, 1989, Marvin and Christine agreed to a modification of the divorce judgment, and the Hinds Chancery Court entered an order transferring custody of both daughters to Marvin. Support payments were terminated.\\nOn November 21, 1991, Christine filed a motion for modification of the judgment, seeking custody of Tracee. She alleged that Tracee had expressed a desire to be with her, and that while Marvin was not averse to this, he refused to pay child support absent a court order. Christine requested child support and attorney's fees.\\nOn December 19, 1991, an alias summons was filed in the Hinds Chancery Court, stating that it had been served on Marvin Powell the previous day, apparently at his place of employment. The summons stated that a complaint was attached (Christine's motion for modification), and that Marvin was \\\"required to mail or hand-deliver a copy of a written response\\\" to Christine's lawyer within 30 days. The summons did not set a date or time for a hearing or other procedure.\\nOn March 2, 1992, Christine filed a Notice of Hearing in the Hinds Chancery Court, stating that she would bring her motion before the Court on March 9, 1992 at 9:00 a.m. A certificate of service stated that Christine's lawyer had sent a copy of the notice to Marvin at his home address of 147 Powell Road, Jackson. Marvin contends that he never received this notice.\\nThe hearing was held before the Hinds Chancery Court on March 9, 1992. Present were Christine and her lawyer, Roy Peril-loux. At the hearing, Perilloux stated that after filing the motion for modification, he had received a telephone call from Marvin's last attorney of record, Hal Dockins. Peril-loux also stated that he had spoken with Dockins \\\"last week to advise him of the hearing,\\\" and that Dockins had told him that while he was not representing Marvin, he did not think Marvin was opposed to the motion, except for the child support provision. The Chancellor requested that Perilloux take a quick look around the courthouse for Marvin. Marvin was not found, and the hearing was held.\\nIn an order dated March 12, 1992, the chancellor' transferred custody of Tracee from Marvin to Christine. He awarded $250.00 per month child support, as well as Christine's $550.00 attorney's fees. The judgment provided that an order be served on Marvin's employer, commanding Texas Eastern Transmission Corporation to withhold $250.00 per month for Tracee's support. The withholding order was to take effect immediately. Additionally, a writ of garnishment was served on Texas Eastern Transmission in the amount of $550.00.\\nMarvin filed a motion for relief from the March 12th judgment and to stay the garnishment proceedings. He claimed that although he had been served the alias summons in December 1991, he had never received notice of the hearing held March 9, 1992, and that the alias summons failed to comply with the notice requirements of M.R.C.P. 81. He asked the Court to set aside its judgment as void, to stay or vacate all garnishments, and to assess attorney's fees and court costs.\\nA hearing on this motion was held on April 23,1992. It was attended by Christine, Mar vin, and their lawyers. Marvin's lawyer Hal Dockins made the following statement concerning his client's alleged lack of notice of the March 9th hearing:\\nMy client never received any notice of the hearing. When he received the alias summons, Your Honor, he came to my office. I called Mr. Perilloux on the phone. I asked Mr. Perilloux, I said, \\\"I notice that your summons does not yet have a hearing date.\\\" He said, \\\"I haven't set it yet.\\\" I never heard from Mr. Powell or Mr. Peril-loux again. I saw Mr. Perilloux in the hallway one day when I was here on another matter, and he asked me a question about Mr. Powell's case. And I advised him that I had advised Mr. Powell that he should take some sort of action on the case. I was on another matter. I never received any notice of the hearing date. Mr. Powell never received notice of a hearing date. The next thing we knew about the case Mr. Powell was being garnished.\\nPerilloux had a somewhat different recollection of the conversation in the hallway:\\n(M)r. Dockins and (Carol English) were having a conversation at the counter on Friday, March the 6th, prior to this hearing, when I happened by. And Carol asked me was the hearing before you that Monday still on. And I said, \\\"You couldn't have asked me at a more appropriate time,\\\" because Mr. Dockins had made a telephone call on this case. And I turned to Hal and asked him, \\\"Are you representing Mr. Powell?\\\" And his response was, \\\"Definitely not.\\\" And I said somewhat in a joking manner, Judge, \\\"Speak now or forever hold your peace,\\\" to which Hal said, \\\"I am definitely not representing him. He's fair game.\\\" Judge, I think there's a waiver problem here.\\nDockins denied that he had ever told Peril-loux that he was no longer representing Marvin Powell.\\nThe chancellor was unsympathetic to Marvin's claim that he had not received notice of the March 9th hearing. He stated that he had an affidavit from Perilloux, swearing that he had sent notice of the hearing by first class U.S. mail to Marvin at his Powell Road address in Jackson. However, no such affidavit appears in the record. The chancellor held that notice of the hearing had been given, and denied Marvin's motion to set aside the judgment.\\nThe chancellor then permitted Dockins to call Marvin to make an offer of proof. Marvin testified that he had been employed at Texas Eastern for sixteen years, and that it was there he had been served the alias summons. He stated that the summons had given no indication of when or where he was to appear to defend his rights, and that had he received notice of the hearing, he would have appeared. Upon questioning by the judge, Marvin stated that he had no objection to Tracee going to live with Christine, and that he had no objection to paying child support.\\nThe chancellor denied Marvin's motion in an order dated April 28, 1992. On May 18, 1992, Marvin appealed the judgment to this Court.\\nB.\\nNOTICE\\nI. WHETHER A RULE 4 ALIAS SUMMONS, WHICH FAILED TO GIVE NOTICE OF THE DATE, TIME AND PLACE OF A MODIFICATION OF CHILD CUSTODY HEARING, COMPLIES WITH THE NOTICE REQUIREMENTS OF M.C.R.P. 81(d)(5).\\nII. WHETHER A LETTER CONTAINING THE DATE AND TIME OF A HEARING ALLEGEDLY MAILED TO THE RESPONDENT TWO MONTHS AFTER SERVICE OF THE RULE 4 ALIAS SUMMONS IS SUFFICIENT NOTICE OF HEARING OF RULE 81(d) MATTERS WHERE THE RULE 4 ALIAS SUMMONS DID NOT CONTAIN THE REQUIRED NOTICE OF THE DATE, TIME AND PLACE OF THE HEARING.\\nIII. WHETHER RESPONDENT'S RIGHT OF DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES OF AMERICA AND THE CORRELATING SECTION OF THE MISSISSIPPI CONSTITUTION WAS VIOLATED WHERE THE NOTICE OF THE TIME, PLACE AND DATE DID NOT COMPLY WITH M.R.C.P. 81(d)(5).\\nMarvin argues that the summons with which he was served on December 18, 1991, was of the wrong variety, and did not comply with the notice requirements of M.R.C.P. 81(d)(5). He notes that he was served with a Rule 4 or \\\"alias\\\" summons, which requires a written response to be delivered to the plaintiffs attorney within thirty days. Marvin contends that he should have been served with a Rule 81 summons, which does not require a response, but sets a time and place for a hearing in court concerning the matters set out in the complaint. Marvin also contends that he was not notified of the March 9, 1992, hearing on Christine's motion; in particular, he denies having received the notice Roy Perilloux certifies he mailed to Marvin on February 19, 1992.\\nChristine argues that Marvin was properly apprised of her motion for modification by service of the summons and complaint, and that the notice requirements of Rule 81 were met by the notice of hearing she claims was sent to Marvin on February 19, 1992. M.R.C.P. 81\\nM.R.C.P. 81 governs procedure in twelve categories of civil actions, including child custody actions. The comment to the Rule states:\\nRule 81(a) lists 12 categories of civil actions which are not governed entirely by the M.R.C.P. In each of those actions there are statutory provisions detailing certain procedures to be utilized . (h)ow-ever in any instance in the twelve listed categories in which the controlling statutes are silent as to a procedure, such as security for costs, form of summons and methods of service of process and notices, service and filing of pleadings, computation of time, pleadings and motions, discovery, subpoenas, judgments and the like, the M.R.C.P. govern.\\nComment, Rule 81. The statute pertaining to child custody (including modification of a custody order) is Miss.Code Ann. (1972) \\u00a7 93-5-23 (Supp.1992). It is silent concerning the procedures for summons and service of process; therefore, the M.R.C.P. govern. See Covington v. Covington, 459 So.2d 780 (Miss.1984) (where statute addressing chancery court's contempt power is silent as to methods of service of notices, M.R.C.P. govern).\\nRule 81(d)(1) provides that child support actions are \\\"triable 30 days after completion of service of process in any manner other than publication.\\\" Rule 81(d)(4) provides:\\nNo answer shall be required in any action or matter enumerated in subpara-graphs (1) and (2) above but any defendant or respondent may file an answer or other pleading or the court may require an answer if it deems it necessary to properly develop the issues .\\n(emphasis added). Finally, Rule 81(d)(5) provides:\\nUpon the filing of any action or matter listed in subparagraphs (1) and (2) above, summons shall issue commanding the defendant or respondent to appear and defend at a time and place, either in term time or vacation, at which the same shall be heard. Said time and place shall be set by special order, general order or rule of the court. If such action or matter is not heard on the day set for hearing, it may by order entered on that day be continued to a later day for hearing without additional summons on the defendant or respondent\\n(emphasis added). The Comment to Rule 81 states that section (d)(5) \\\"recognizes that since no answer is required of a defendant/respondent, then the summons issued shall inform him of the time and place where he is to appear and defend.\\\" Form ID in the Appendix to the Rules is entitled \\\"Rule 81 Summons.\\\" It notices the defendant that a complaint is attached, and provides blanks for the date, time and courthouse where the defendant should appear. It also states that the defendant may, but is not required to file an answer. A Form IA summons (an \\\"alias summons\\\"), on the other hand, notifies the defendant that he must deliver a response to the attached complaint to the plaintiffs lawyer within 30 days.\\nThe summons with which Marvin was served on December 18, 1991, was an alias summons. It stated that Marvin was required to respond within 30 days to Roy Perilloux; it did not set a time, date and place for a hearing on the complaint. In short, it did not comply with the requirements of Rule 81. \\u215b\\nIn Saddler v. Saddler, 556 So.2d 344 (Miss.1990), this Court considered whether a Rule 4 summons, served with a motion for modification of a divorce decree, was proper, where the custodial mother sought increased child support from the father. Lear, the mother, who alleged that Walter's income had substantially increased, had Walter served with the Rule 4 summons, pleadings, requests for admissions, and interrogatories. Walter did not answer any of the above. Several months later, Lear filed an application for a default judgment with an affidavit concerning Walter's finances. She also requested an evidentiary hearing to establish the precise amounts of increased child support and attorney's fees. Ten days later, a default judgment was entered, finding that Lear was entitled to an increase in child support and attorney's fees, and setting a date for a hearing three weeks later. At the hearing, the chancellor denied Walter's motion to set aside the default judgment, and ordered him to pay increased child support and attorney's fees. We reversed, holding that the entry of default was improper:\\nIt is patent and obvious that the Chancellor erred in granting the default judgment. Rule 81(d)(5) requires the issuance of summons commanding the defendant to appear and defend at a time and place at which the action is to be heard and precludes a default judgment. That kind of summons was not issued in this case.\\nSaddler v. Saddler, 556 So.2d at 346 (Miss.1990).\\nThe proper procedure under Rule 81 would have been to serve Marvin with the motion for modification and a Rule 81 summons, setting a time and date for a hearing at the Hinds Chancery Court, First Judicial District, and informing him that he was not required to respond in writing. It appears from the record that at the time Marvin was served with the motion and Rule 4 summons, no date was set for a hearing. It is clear that under Rule 81, even had Marvin been served with the correct form of summons, he would not have been required to respond in writing to the motion. The effect of the Rule 4 summons was merely to inform Marvin that a motion for modification had been filed. Such \\\"notice\\\" does not comply with Rule 81, which requires that a date and time be set for a hearing. Therefore, the Court finds that when proceeding under matters enumerated in Rule 81, a proper 81 summons must be served.\\nC.\\nAdditionally, we reverse the awards of child support and attorney's fees, and set aside the writ of garnishment on Marvin's wages. Applicable law, appropriate for consideration of these matters on remand, follows.\\nChild Support\\nIV. WHETHER AN AWARD OF CHILD SUPPORT IS PROPER WHERE COUNSEL FOR THE MOVING PARTY FAILED TO PLACE INTO THE RECORD ANY EVIDENCE OF THE RESPONDENT'S PRESENT INCOME, THE NEEDS OF THE CHILD, OR THE RESPONDENT'S PRESENT ABILITY TO PAY THE CHILD SUPPORT AWARD.\\nMarvin argues that the chancellor abused his discretion in awarding child support without taking into consideration all the relevant factors \\u2014 in particular, Marvin's ability to pay. Marvin notes that he has remarried and has custody of Tracee's sister, and contends that the evidence of his circumstances at the March 9th hearing was insufficient. He also contends that the record is similarly devoid of any evidence on Tracee's actual needs. Christine argues that the record shows that Marvin did not have difficulty paying $400.00 a month (when he was paying Christine support for both daughters), and that he is still employed at the same company at the same job; therefore, he can still afford $250.00 per month. She also argues that the chancellor's reasoning that \\\"costs have gone up,\\\" justifying an increase, was within the chancellor's discretion. Finally, she contends that since Marvin stated at the April 23rd hearing that he had no objection to paying child support, he effectively waived this issue on appeal.\\nDecisions regarding modification of child support are within the discretion of the chancellor, and this Court will reverse only where there is manifest error in findings of fact, or an abuse of discretion. Hammett v. Woods, 602 So.2d 825, 828 (Miss.1992); Lawrence v. Lawrence, 574 So.2d 1376 (Miss.1991). The party seeking modification must show a material change of circumstances of the father, mother, or children arising subsequent to the original decree. McEachern v. McEachern, 605 So.2d 809, 813 (Miss.1992); Cox v. Moulds, 490 So.2d 866, 869 (Miss.1986). The factors to be considered are 1) increased needs of children due to advanced age and maturity; 2) increase in expenses; 3) inflation; 4) relative financial condition and earning capacity of the parties; 5) health and special medical needs of the child, both physical and psychological; 6) health and special medical needs of the parents, both physical and psychological; 7) necessary living expenses of the father; 8) estimated amount of income taxes each party must pay; 9) free use of residence, furnishings, and automobile; and 10) other facts and circumstances bearing on the support as shown by the evidence. McEachern v. McEachern, 605 So.2d at 813 (Miss.1992); Adams v. Adams, 467 So.2d 211, 215 (Miss.1985).\\nIn the ease at bar, the only evidence concerning Marvin's ability to pay was Christine's testimony that he still worked at Texas Eastern, and that he had had no difficulty paying $400.00 per month when that was required. Moreover, there was no evidence presented concerning the other relevant factors \\u2014 for example, Christine's income, or lack thereof. Finally, because Marvin was not present at the March 9th hearing, he was unable to testify as to his capacity to pay, or to question Christine's statements concerning Tracee's needs.\\nIt is true that Marvin stated at the April 23rd hearing that he had no objection to paying child support. It is also true that the chancellor's award of $250.00 per month support for sixteen year old Tracee was probably reasonable. However, in reviewing an award of child support, as any matter, this Court looks to the record to see if sufficient evidence supports the chancellor's findings. See, e.g., Hammett v. Woods, 602 So.2d at 828-829 (Miss.1992) (no substantial evidence in record to support increase in support obligation). The award of child support in the amount of $250.00 per month is reversed and remanded for more complete findings on the factors articulated above, and consideration of same.\\nAttorney's Fees\\nV. WHETHER AN ATTORNEY FEES AWARD IS PROPER WHERE COUNSEL FOR THE MOVING PARTY FAILED TO PLACE INTO THE RECORD EVIDENCE OF ENTITLEMENT TO FEES, THE ATTORNEY'S TIME, ITEMIZATION OF SERVICES RENDERED, OR REASONABLENESS OF THE ATTORNEY'S HOURLY RATE.\\nVI. WHETHER A WRIT OF GARNISHMENT FOR ATTORNEY'S FEES IS VOID WHERE THE WRIT WAS EXECUTED FOUR DAYS AFTER ENTRY OF JUDGMENT.\\nFees\\nMarvin argues that the record is devoid of documentary evidence concerning the attorney's fees he was ordered to pay. Without proof of entitlement to fees, amount of attorney time, services rendered, or reasonableness of the award, he contends that the award of $550.00 must be reversed. Christine argues that the amount awarded was within the discretion of the chancellor, and should stand.\\nThis Court has many times held that the amount of attorney's fees is a matter left to the discretion of the chancellor. See, e.g., Greenlee v. Mitchell, 607 So.2d 97 (Miss.1992); Smith v. Dorsey, 599 So.2d 529 (Miss.1992); Young v. Huron Smith Oil Co., Inc., 564 So.2d 36 (Miss.1990). However, the award must be supported by sufficient evidence, and not merely \\\"plucked out of the air.\\\" Young, 564 So.2d at 40; Carter v. Clegg, 557 So.2d 1187, 1192 (Miss.1990). See also Holleman v. Holleman, 527 So.2d 90, 96 (Miss.1988). Where the evidence is insufficient, this Court will reverse the award. Karenina by Vronsky v. Presley, 526 So.2d 518, 525 (Miss.1988); McKee v. McKee, 418 So.2d 764 (Miss.1982).\\nAt the March 9th hearing, no evidence, such as a timesheet showing the number of attorney hours spent, was presented in support of the award of $550.00. The chancellor merely asked Christine what she owed Perilloux, and assigned the fee to Marvin. Moreover, this was done in Marvin's absence. In Griffin v. Griffin, 579 So.2d 1266 (Miss.1991), this Court reversed an award of attorney's fees, finding that the evidence supporting it \\u2014 which included timesheets and an affidavit setting out hours worked, hourly rates, and costs \\u2014 was insufficient. The Court noted that there was no explanation for the number of hours required, or the usual charge in the community. The Court held that the chancellor had erred in granting the award against the husband in his absence:\\n(P)arties are entitled to notice and due process. Sylvester was not present when the evidence was presented and was not given the opportunity to examine witnesses and to question the reasonableness of the award .\\nThe attorney's fee of $4,450.00 was a substantial fee and it was allowed in an ex parte hearing, regardless of the opposing parties' right to be present at the hearing.\\nGriffin v. Griffin, 579 So.2d at 1268 (Miss.1991). See also Lenoir v. Lenoir, 611 So.2d 200 (Miss.1992) (award of attorney's fees reversed and remanded, where party to whom they were assigned had not been present, and had not had opportunity to question their reasonableness). The attorney's fees Marvin was ordered to pay were assigned to him at what was, in effect, an ex parte hearing. Under Griffin v. Griffin and Lenoir v. Lenoir above, it was an abuse of discretion for the chancellor to award the fees in Marvin's absence. Furthermore, it was error for the chancellor to award the fees without sufficient supporting evidence. The award of attorney's fees against Marvin is reversed. On remand, if attorney's fees are awarded to either party, the record should contain sufficient evidence to support such an award.\\nGarnishment Proceedings\\nMarvin argues that issuing the Writ of Garnishment to Texas Eastern in the amount of $550.00 on March 16, 1992, four days after the judgment, was \\\"premature\\\" and \\\"illegal,\\\" being in violation of M.R.C.P. 62(a), which mandates an automatic 10-day stay of execution. He states that he did not have an opportunity to defend against the motion for garnishment, and that his paycheck was in fact garnished, with ensuing stigma. Chris tine contends that the garnishment was \\\"voluntarily stayed\\\" pending the hearing of Marvin's Motion for Relief of Judgment, and that no funds were withheld from Marvin's wages until his appeal was perfected without super-sedeas. Therefore, she contends, any error is moot and harmless.\\nM.R.C.P. 62 provides in part:\\n(a) Automatic Stay; Exceptions. Except as stated herein or as otherwise provided by statute or order of the court for good cause shown, no execution shall be issued upon a judgment nor shall proceedings be taken for its enforcement until the expiration of ten days after its entry or the disposition of a motion for a new trial, whichever last occurs .\\nThe record contains the following documents filed subsequent to entry of the March 12th judgment, which included the award of attorney's fees: 1) an order issued March 12th to Texas Eastern to withhold $250.00 per month of Marvin's wages for child support; 2) a \\\"Suggestion for Writ of Garnishment\\\" submitted by Roy Perilloux on March 16th against Texas Eastern in the amount of $550.00; 3) a Writ of Garnishment for $550.00 issued March 16th, and served on Texas Eastern on March 18th; Marvin's Motion for Relief and to Stay Garnishment Proceedings, filed March 20th; a Notice of Hearing on the motion for April 1st, also filed March 20th; an Answer by Texas Eastern filed April 3rd; a Renotice of Hearing for April 23rd, filed April 10th; and the chancellor's April 28th Order Denying Relief from the Judgment and Denying Stay of Garnishment Proceedings.\\nThere is no evidence that Marvin's wages were in fact garnished in the amount of $550.00. We cannot address Marvin's claim that the writ was executed .prematurely, without knowing when it was executed. See, e.g., Wallace v. State, 607 So.2d 1184, 1189 (Miss.1992) (\\\"Facts asserted to exist must and ought to be definitely proved and placed before us by a record, certified by law; otherwise, we cannot know them\\\"). The grant of attorney's fees is reversed; as discussed above, the record on remand should contain adequate documentation supporting any award of fees. If garnishment is again ordered, the record should contain documentation of this as well.\\nD.\\nAttorney's Fees On Appeal\\nVII. WHETHER THE APPELLANT IS ENTITLED TO ATTORNEYS FEES AND COSTS OF APPEAL WHERE HE WAS REQUIRED TO INCUR THOSE EXPENSES TO PROTECT HIS RIGHT TO CUSTODY OF A MINOR CHILD AND WHERE OTHER SUBSTANTIAL RIGHTS OF THE APPELLANT WERE VIOLATED AT THE TRIAL COURT LEVEL.\\nMarvin argues that but for Christine's failure to follow the requirements of Rule 81 in informing him of the modification hearing, he would have been present to defend his interests, and thus his Motion for Relief from Judgment and this appeal would have been avoided. He contends that because it is Christine's fault he could not defend his interests at the hearing, she should bear a part of his attorney's fees and costs incurred in his appeal.\\nChristine argues that under Miss.Code Ann. (1972) \\u00a7 11-3-23 (Supp.1992), she is entitled to collect 15% of the chancellor's award if that award is affirmed. Multiplying the number of months left in Tracee's minority (60) by the monthly award of $250.00, and adding the attorney's fees award of $550.00, she reaches a total of $15,550, fifteen per cent of which is $2332.50. Accordingly, Christine has moved for an award in this amount \\\"as a reasonable attorney's fee.\\\"\\nSection 11-3-23, providing for damages to be awarded by this Court where it affirms the judgment of a lower court, has been applied to domestic cases. See, e.g., Lumbermens Mutual Casualty Co. v. Rhodes, 459 So.2d 244 (Miss.1984). However, \\u00a7 11-3-23 applies only to unconditional affirmances on appeal. Old Secur. Casualty Ins. Co. v. Clemmer, 458 So.2d 732 (Miss. 1984). Because Christine does not prevail on appeal, she is not entitled to an award under this statute.\\nMarvin cites no authority for his argument that Christine should bear a part of the costs incurred for this appeal. An appellant has an affirmative duty to provide support for his assignments of error. Roberson v. State, 595 So.2d 1310, 1318 (Miss.1992); R.C. Petroleum, Inc. v. Hernandez, 555 So.2d 1017, 1023 (Miss.1990) This Court feels no compunction to address an assignment of error in the absence of such support. Caruso v. Picayune Pizza Hut, Inc., 598 So.2d 770, 776 (Miss.1992). Moreover, there is no merit to Marvin's argument. This Court does not award attorney's fees simply because a party was compelled to appeal to vindicate his rights, and incurred costs in doing so. We have also held that attorney's fees should not be awarded as a means to penalize. Lenoir v. Lenoir, 611 So.2d 200 (Miss.1992). Finally, Marvin presents no evidence concerning Christine's ability to pay his requested costs and attorney's fees, and made no showing that he is unable to pay them. When a party is able to pay attorney's fees, an award of such fees is inappropriate. Lenoir v. Lenoir, 611 So.2d 200, 204 (Miss.1992); Hammett v. Woods, 602 So.2d 825, 830 (Miss.1992), citing Martin v. Martin, 566 So.2d 704, 707 (Miss.1990)\\nMarvin's assignment of error seeking attorney's fees for this appeal is without merit, and is denied. Christine's motion for attorney's fees on appeal is also denied.\\nThe case is reversed and remanded for proceedings not inconsistent with this opinion.\\nREVERSED AND REMANDED.\\nHAWKINS, C.J., DAN M. LEE, P.J., and SULLIVAN, PITTMAN, BANKS and McRAE, JJ., concur.\\nSMITH, J., dissents with separate written opinion joined by PRATHER, P.J.\\n. The record contains copies of two other summons for Marvin, dated November 21, 1991, directed to his home address of 147 Powell Road in Jackson. These summons were apparently not served.\\n. Dockins had not represented Marvin in the original divorce proceedings, but had represented him in a modification of the decree.\\n. Apparently a court employee, never specifically identified in the record.\\n. This Court's finding in Covington v. Covington, 459 So.2d 780 (Miss.1984), was correct at the time it was decided based upon Rule 81 at that time. However, since Covington Rule 81 was changed. In Hunt v. Hunt, 629 So.2d 548 (Miss.1993) and Cooley v. Cooley, 574 So.2d 694 (Miss.1991), the Court decided those cases without applying amended Rule 81. Therefore, to the extent that those cases are in conflict with today's holding they are overruled. Although a Rule 81 summons must be served, we do not find that personal jurisdiction is lost once a court had personal jurisdiction over the defendant at the time of the divorce, but hold that Rule 81 matters, because of their nature, require special notice.\\n. It is noted that the award of $550.00 in this case is significantly lower than the $4,450.00 award in Griffin. It is also noted that in Gray v. Gray, 562 So.2d 79 (Miss.1990), this Court affirmed an award of $500.00 in attorney's fees as \\\"within the chancellor's discretion,\\\" while admitting that \\\"the proof offered in the case . may be insufficient.\\\" 562 So.2d at 83. However, in Gray, there was some evidence supporting the award, in the form of a statement itemizing the attorney's charges. There is no such statement in the record in the case at bar.\\n. We express no opinion concerning the merits of the attorney's fees award to Christine.\"}"