Facts: After 22 years of marriage, the parties divorced. Their marital dissolution agreement required Husband to pay Wife transitional alimony of $2000 per month for eight years. It also provided that the alimony would terminate upon either party’s death or Wife’s remarriage.

After Wife started cohabitating with her boyfriend, Husband moved to suspend his alimony obligation per the cohabitation provision of Tennessee Code Annotated § 36-5-121(g)(2)(C) and recover his reasonable attorney’s fees.

After ruling in Husband’s favor, the trial court awarded him a judgment for $19,331.50 for his reasonable attorney’s fees and expenses.

Wife appealed.

On Appeal: In a 2-1 decision, the Court of Appeals reversed the trial court.

Tennessee Code Annotated § 36-5-103(c) gives Tennessee courts discretion to award attorney’s fees in any litigation “enforcing any decree for alimony.”

Because attorney’s fees are a form of spousal support, an award of such fees is subject to the same statutory factors that must be considered in the award of any other type of alimony, i.e., those found in Tennessee Code Annotated § 36-5-121(i).

Wife argued the trial court lacked authority to award attorney’s fees to Husband because Husband’s petition was not one to enforce the marital dissolution agreement. The trial court agreed and characterized its award of attorney’s fees was an award of alimony to Husband. Wife argued this is error because Husband presented no evidence showing him to be the economically disadvantaged spouse or that Wife could pay his attorney’s fees.

The Court found Husband could not recover his attorney’s fees as a form of alimony:

Upon our thorough review of the record and the applicable statutory factors [for alimony], we conclude that the trial court erred in awarding attorney’s fees to Husband because Wife had successfully established during trial that her income and expenses were such that she did not have the ability to pay spousal support.

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The record indicates no proof presented by Husband that he was a disadvantaged spouse. . . . We conclude that the trial court erroneously declined to consider the financial evidence presented during the modification trial in awarding attorney’s fees to Husband and thereby employs reasoning that would cause an injustice to Wife. . . . We therefore reverse the trial court’s award of attorney’s fees to Husband.

Concurring and Dissenting Opinion: Judge McBrayer issued a separate opinion concurring in the result but dissenting from the majority’s reasoning because, in his opinion, Tennessee Code Annotated § 36-5-121 authorizes no award of attorney’s fees because the statute is inapplicable in postdivorce alimony-modification proceedings.

Tennessee Code Annotated § 36-5-121 authorizes an award of attorney fees in a divorce in only two instances. First, pending a final hearing, the court may award attorney fees “to enable . . . [a] spouse to prosecute or defend the suit of the parties.” Second, the court may award attorney fees as alimony in solido “calculable on the date the [divorce] decree is entered.” No provision is made in the statute for an award of attorney fees in postdivorce modification proceedings.

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Additionally, it would be unnecessary to authorize attorney fees “incurred in enforcing any decree from alimony” under Tennessee Code Annotated § 36-5-103(c) if such authority already existed under Tennessee Code Annotated § 36-5-121.

K.O.’s Comment: As readers of this blog already know, the legislature amended Tennessee Code Annotated § 36-5-103(c), effective July 1, 2018, to allow “[a] prevailing party [to] recover reasonable attorney’s fees . . . in any . . . proceeding to enforce, alter, change, or modify any decree of alimony.” As of July 1, awards of attorney’s fees like that made by the trial court in this case will be allowed.

Scherzer v. Scherzer (Tennessee Court of Appeals, Middle Section, May 24, 2018).