Facts: Father filed a petition to modify child support alleging a decrease in his income.
After a hearing, the trial court modified and reduced Father’s child support obligation retroactive to the date he filed his petition to modify.
The trial court also ordered Mother to pay $10,000 toward Father’s attorney’s fees and expenses.
On Appeal: The Court of Appeals reversed the trial court.
Tennessee follows the American Rule regarding the payment of attorney’s fees. This rule provides that a party in a civil case 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.
In child support matters, Tennessee has a statute creating a right to recover attorney’s fees. Tennessee Code Annotated § 36-5-103(c) provides:
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 Tennessee Supreme Court has stated that “[i]n cases involving the custody and support of children, . . . it has long been the rule in this State that counsel fees incurred on behalf of minors may be recovered when shown to be reasonable and appropriate.” Thus, Tennessee Code Annotated § 36-5-103(c) has been used as authority to award fees to custodial parents who have successfully sought increases in child support, as well as to parents who successfully defend an obligor parent’s efforts to reduce a child support obligation.
After reviewing the record, the Court reasoned:
This matter is not one in which Father incurred attorney fees on behalf of the minor. The instant action is not to enforce any decree for child support, nor does it seek to adjudicate the custody of a child. Therefore, this action does not fit the language or purpose of Tennessee Code Annotated § 36-5-103(c); so no exception to the American Rule exists in this case….
[W]e reverse the award of attorney’s fees to Father.
Accordingly, the trial court’s award of attorney’s fees to Father was reversed.
K.O.’s Comment: This holding is consistent with other Tennessee cases interpreting the statute as only allowing for the award of attorney’s fees to a party defending an action to change a prior child support order on the theory that the defending party is enforcing the prior order. See, e.g., Hansen v. Hansen.
Information provided by K.O. Herston: Knoxville, Tennessee Divorce and Family Law Attorney.