Facts: Mother and Father are the unmarried parents of Child. When they separated, Mother was designated the primary residential parent and Father was ordered to pay child support.
Six years later, Mother petitioned to modify child support and requested an award of attorney’s fees. Father counter-petitioned for a change of primary custody.
After the trial, the trial court increased Father’s child support obligation and denied his request to become the primary residential parent. The trial court denied Mother’s request for attorney’s fees.
On Appeal: The Court of Appeals reversed the trial court.
Mother argued the trial court abused its discretion by denying her request for attorney’s fees.
Civil litigants are generally required to be responsible for their own attorney’s fees in the absence of a statute or contractual provision otherwise. One of the most common circumstances in family law cases in which an award of attorney’s fees is appropriate is when an economically disadvantaged parent returns to court to enforce the other parent’s child support obligations.
Tennessee Code Annotated § 36-5-103(c) provides a statutory mechanism for the recovery of attorney’s fees in certain cases involving the custody and support of children. Section 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.
In cases involving the custody and support of children, it has long been the rule in Tennessee that attorneys fees incurred on behalf of minors may be recovered when shown to be reasonable and appropriate. There is no absolute right to such fees, but their award in custody and support proceedings is fairly common.
There is no list of factors a trial court should take into account in exercising its discretion on the question of attorney’s fees. However, such awards are most appropriate .where the parent proves he or she is entitled to an award for the benefit of the minor child, and where the cost of vindicating that right produces an inequitable reduction in the actual amount the child receives.
Additionally, a trial court may consider proof of a party’s inability to pay such fees and whether one party is at an economic disadvantage in comparison to the other. The purpose of requiring a non-custodial parent to pay attorney’s fees is to protect the legal remedies of the child, not the parent. Tennessee courts can grant attorney’s fees awards in child custody or support proceedings to facilitate a child’s access to the courts.
After reviewing the record, the Court reasoned:
In this case, the evidence adduced at trial indicates that there is a large disparity between the income of Mother and Father. Specifically, the juvenile court found that Father’s monthly gross income is $9,783.41, while Mother’s income is only $1,576.90. It was because of this economic gap that Mother prevailed on her petition to increase child support, resulting in an increase of monthly support from $520 to $959.38. Based on these facts, we have determined that if Mother were now also required to pay the entirety of her attorney’s fees it would, in effect, reduce the amount of support received. This result would ultimately operate to the detriment of the parties’ child.
For the reasons stated above, Mother is entitled to recover the attorney’s fees she incurred, to the extent they are reasonable and necessary, to enforce Father’s child support obligation and to defend his petition to change custody….
Therefore, on remand, the [trial] court is instructed to award Mother attorney’s fees she incurred in pursuit of her petition for modification of child support and in defending against Father’s counter-petition, to the extent those fees are both reasonable and necessary.
Accordingly, the trial court’s denial of attorney’s fees to Mother was reversed. The Court also awarded Mother her reasonable attorney’s fees on appeal.
Information provided by K.O. Herston: Knoxville, Tennessee Divorce and Family Law Attorney.