Facts: Mother and Father divorced in 2003. Father had regular, unsupervised parenting time with their children.
In 2006, Mother petitioned to modify the parenting plan and temporarily suspend Father’s parenting time because Mother alleged Father was addicted to drugs and alcohol. She also requested recovery of her reasonable attorney’s fees and expenses.
After discovery had been completed and the case scheduled to proceed to trial, Mother’s legal expenses totaled $16,277. During discovery, Father admitted abusing alcohol and drugs. Father proposed a settlement that was rejected by Mother.
Mother changed lawyers. The trial was subsequently continued at various times at the request of both parties.
Additional discovery took place, during which Father admitted he continued to abuse alcohol and drugs. Despite these admissions, Mother continued to incur substantial private investigator fees to survey Father and report on his alcohol use. The parties then entered into a settlement agreement, which was similar to the original settlement offer previously rejected by Mother.
Mother filed her petition for attorney’s fees and expenses. At this time, Mother’s legal expenses totaled $49,594.
Despite the settlement, Mother again incurred fees related to the use of a private investigator. This time, the surveillance was not just limited to Father, and also to Father’s counsel, ostensibly to show that Father’s counsel improperly asked to we schedule a deposition.
The parties eventually went before a Special Master for hearing on the issue of attorney’s fees and expenses. The total requested by Mother at this time was $354,872. The Special Master found that Mother’s request was excessive. Mother was awarded $124,824 in attorney’s fees and expenses. Both parties appealed to the trial court.
The trial court further reduced Mother’s award of fees and expenses to $42,277. The trial court commented:
There has been an ongoing conflict between not only the parties to this case but also between Mother’s counsel and opposing counsel and the guardian ad litem. This Court believes that this unfortunate conflict has caused Mother’s counsel to use every litigation arrow in his quiver in pursuit of Mother’s goals. Mother can certainly engage in such a strategy but she must recognize that she cannot expect the other side to pay for it.
The trial court further commented that the “vast majority” of the fees and expenses incurred by Mother were neither reasonable nor necessary “for purposes of requiring the opposing party to pay them in their entirety.” Thus, the total amount awarded for Mother’s fees and expenses was a $42,277.
On Appeal: The Court of Appeals affirmed the trial court.
Typically, Tennessee courts follow the American rule regarding attorney’s fees and require litigants to pay their own attorney’s fees unless there is a statute or contractual agreement providing otherwise. Tennessee Code § 36-5-103(c) provides a statutory mechanism for the recovery of attorney’s fees in certain situations. Section 36-5-103(c), in relevant part, provides:
[T]he spouse or other person to whom 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 in 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.
Thus, Tennessee Code § 36-5-103(c) allows a party to recover his or her reasonable and necessary attorney’s fees in cases involving child support modification and custody.
The appropriate factors Tennessee courts must consider when fixing a reasonable attorney’s fee are:
1. The time devoted to performing the legal service.
2. The time limitations imposed by the circumstances.
3. The novelty and difficulty of the questions involved and the skill requisite to perform the legal service properly.
4. The fee customarily charged in the locality for similar legal services.
5. The amount involved and the results obtained.
6. The experience, reputation, and ability of the lawyer performing the legal service.
After reviewing the record, the Court reasoned:
Mother points to no specific errors in the trial court’s judgment other than the reduction in the award attributable to non-attorneys and associates. Taking the trial court’s ruling in the light most favorable to it, we discern no abuse of discretion in the trial court’s decision. First, the trial court pointed to specific facts justifying the reduction in fees. For example, [Mother’s counsel] wrote a letter to Father’s counsel indicating that he would be prepared for trial shortly after Mother retained him, presumably based on Father’s condemnatory admissions to his substance abuse. Despite the fact that Mother’s original attorney believed that the matter was nearing conclusion, an opinion that [Mother’s counsel] initially shared, Mother and [Mother’s counsel] proceeded to incur hundreds of thousands of dollars of additional fees and expenses. Furthermore, even though Father continued to admit his alcohol and drug use, Mother hired private investigators to follow Father.
In addition, although we have no doubt of [Mother’s counsel’s] excellent representation, the results obtained by [Mother’s counsel] are similar to the settlement offer made by Father’s prior counsel in 2006…. While similar results obtained at trial are not always indicative that a fee is unreasonable, this fact does tend to show that the parties’ positions were not so diametrically opposed as to require hundreds of thousands of dollars of legal fees to reach an agreement.
Accordingly, the Court held the trial court did not abuse its discretion in declining Mother’s request for reimbursement of over $350,000 in legal expenses.
K.O.’s Comment: You know it is not going to end well when the Court begins its analysis with this sentence: “As an initial matter, we must first discuss the deficiencies in Mother’s brief.” *gulp*
After discussing specific deficiencies, the Court adds, “[T]his Court might be inclined to overlook the deficiencies in Mother’s brief  had the brief contained appropriate citations to authority.” After discussing how “no relevant legal authority is cited” as to various issues raised by Mother on appeal, the Court says:
Again, Mother cites no legal authority . . . nor constructs any legal argument as to why this issue must be reversed. [W]e remind litigants that judges are not like pigs, hunting for truffles buried in briefs. It is not the function of the appellate court to research and construct the parties’ arguments.
The Court went on to award Father “frivolous appeal damages” for his attorney’s fees incurred responding to the issues the Court determined were waived by Mother “due to deficient briefing.”
Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.