Statute for Attorney’s Fees in Child Custody Disputes Inapplicable to Termination of Parental Rights Cases: In re Nathaniel C.T.

Facts: In June 2008, the Children entered into the temporary custody of their aunt by agreed order. In December 2008, Petitioners filed a petition to terminate the parental rights of Parents to the Children.

Ultimately, the parties entered mediation and reached an agreement in 2011. In the end, the Children remained with Parents.

Relying on Tennessee Code Annotated § 36-5-103(c), Parents filed a motion for attorney’s fees.

The trial court found this was not a child custody case that would enable the trial court to award attorney fees under Tennessee Code Annotated § 36-5-103(c). The trial court denied the request for attorney’s fees.

Parents appealed.

On Appeal: The Court affirmed the trial court.

A prevailing litigant has no right at common law to the payment of its legal fees or costs. The common law rule can be modified by contract, but in the absence of such, the authority of the court to award attorney fees must be statutorily grounded. Thus, in the absence of a statute, contract, or other compelling equitable ground, a trial court cannot compel a losing party to pay a prevailing party’s legal expenses.

Tennessee Code Annotated § 36-5-103(c) provides, in relevant part:

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.

After reviewing the record, the Court reasoned:

Custody is an issue in one form or another in every termination of parental rights case. This does not mean that every termination of parental rights case also may accurately be characterized as a custody case under Tennessee Code Annotated § 36-5-103(c). Such an interpretation collapses the very real distinctions between attempts to terminate parental rights and more modifiable matters of care and control. We find, as did the Trial Court, that this case is correctly characterized as a termination of parental rights case and not a custody case. We also observe that this is a case where one is hard-pressed to identify a “prevailing” party. The dispute ended in a mediated agreement.

Moreover, our research of case law on Tennessee Code Annotated § 36-5-103(c) has yielded nothing that would support an award of attorney’s fees in circumstances such as those of the instant case. A court may not award attorney’s fees simply because counsel have worked hard and obtained a favorable result for their clients[;] under Tennessee law there must be some specific legal basis for an award of attorney’s fees.

Judge Susano wrote a separate concurrence to emphasize his opinion that Tennessee Code Annotated § 36-5-103(c) only pertains to a dispute between spouses or a dispute between a “spouse” and an “other person to whom the custody of the child, or children, is awarded.” Since this case presented neither scenario, Judge Susano would hold the language of § 36-5-103(c) is not applicable.

Accordingly, the trial court’s ruling was affirmed.

In re Nathaniel C.T. (Tennessee Court of Appeals, Eastern Section, March 17, 2014).

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

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K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

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