Facts: The parties divorced after nine years of marriage. They have one child. When they divorced, they entered into a marital dissolution agreement in which Father agreed to pay one-half of Child’s college expenses, including “tuition, books, living expenses, etc.” The marital dissolution agreement did not contain an express provision related to attorney’s fees.

Years later, Child reached the age of majority and started attending college. Shortly thereafter, the parties returned to court over a dispute about what constitutes “living expenses.” The trial court resolved that dispute in Mother’s favor. The trial court then awarded Mother her attorney’s fees.

Father appealed.

On Appeal: The Court of Appeals reversed the trial court.

Father argued that Tennessee courts follow the rule that parties pay their own legal fees unless a contract, statute, or other recognized exception expressly authorizes otherwise.

Tennessee, like most jurisdictions, adheres to the “American rule” for award of attorney’s fees. Under the American rule, a party in a civil action may recover attorney’s fees only if: (1) a contractual or statutory provision creates a right to recover attorney’s fees; or (2) some other recognized exception to the American rule applies, allowing for recovery of such fees in a particular case.

Because the marital dissolution agreement is silent on the issue of attorney’s fees, attorney’s fees are not authorized by contract in this case.

Mother argued that because the issue in this case involves the support of the parties’ child, attorney’s fees are authorized pursuant to statute. Mother relied on Tennessee Code Annotated § 36-5-103(c), which states:

The plaintiff spouse may recover from the defendant spouse, and the spouse or other person to whom the custody of the child, or children, is awarded may recover from the other spouse reasonable attorney fees incurred in enforcing any decree for alimony and/or child support, or in regard to any suit or action concerning the adjudication of the custody or the change of custody of any child, or children, of the parties, both upon the original divorce hearing and at any subsequent hearing, which fees may be fixed and allowed by the court, before whom such action or proceeding is pending, in the discretion of such court.

The Court disagreed and reversed the trial court, reasoning:

Mother . . . cites no cases in which this statute has been applied to an award of attorney fees in a case involving only the payment or non-payment of post-majority support, nor has our research revealed any such cases. Further, this Court has held that to uphold the award of attorney fees pursuant to Tennessee Code Annotated § 36-5-103(c) “[t]he attorney’s work in securing the award must ultimately inure to the benefit of the minor children.” Thus, attorney fees pursuant to Tennessee Code Annotated § 36-5-103(c) are only appropriate when the legal fees are incurred on behalf of a minor child. There is no dispute in this case that the support at issue concerns an adult daughter of the parties who has reached the age of majority. Accordingly, Tennessee Code Annotated § 36-5-103(c) does not authorize the award of attorney’s fees in this case. Without any contractual or statutory authority supporting the award of attorney fees, we must conclude that the trial court erred in awarding Mother her attorney fees. The award of attorney fees is, therefore, reversed.

K.O.’s Comment: Unless there is some specific reason to omit it, the best course of action for Tennessee divorce lawyers is to include a provision in the marital dissolution agreement awarding attorney’s fees to the prevailing party in a post-divorce action to enforce the agreement.

Powers v. Powers (Tennessee Court of Appeals, Western Section, April 30, 2013).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.