Tennessee case summary on attorney’s fees in post-divorce action.
The husband and wife in this Hamilton County, Tennessee, case were divorced in 2010, and their agreed parenting plan called for joint custody of their two sons.
This was modified three years later when the wife returned to court requesting a change and complaining of an arrearage in child support. At that time, she was named the primary residential parent.
In 2014, the husband’s parenting time was further restricted and an order for protection was entered against him. Starting in late 2016, he was allowed two hours of supervised parenting time. In 2017, the court put a plan in place to phase out the supervision. During this time, numerous documents were filed with the trial court, and the trial court ultimately held that the wife was the prevailing party. The wife requested her attorney’s fees, and she was awarded over $26,000. Even though the husband was not the prevailing party, the husband also requested his attorney’s fees, but this request was denied by Judge Ward Jeffrey Hollingsworth. The husband then appealed to the Tennessee Supreme Court. He argued first that the trial court erred in designating the wife as the prevailing party. He also argued that the amount of fees was inappropriate.
The appeals court conceded that the husband had “some success” during the litigation process. However, it held that this was not sufficient. The test was whether the party had succeeded on a significant issue, and it noted that the wife had succeeded on numerous issues. For that reason, it held that the trial court was within its discretion in finding her to be the prevailing party.
The husband next argued that he was unable to pay the award. However, the court held that inability to pay was not a defense in the case of a child support or child custody case.
The wife also requested her attorney’s fees on appeal, and after reviewing the evidence, the Court of Appeals held that such an award was appropriate. It remanded the case for the lower court to determine the amount.
For these reasons, the Court of Appeals affirmed the case and remanded to the trial court.
No. E2019-01057-COA-R3-CV (Tenn. Ct. App. Dec. 9, 2020).
See original opinion for exact language. Legal citations omitted.
To learn more, see The Tennessee Divorce Process: How Divorces Work Start to Finish.
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