Facts: After five years of marriage, Husband and Wife divorced in 1975. Husband was ordered to pay alimony in futuro of $2400 per month until Wife’s death or remarriage.

In 1980, the alimony obligation was lowered to $600 per month.

In 2003, the court increased the alimony obligation to $1000 per month.

In 2016, 41 years after this five-year marriage ended, Wife petitioned to increase the alimony amount. Husband counter-petitioned to terminate or reduce the amount.

The trial court denied Wife’s petition because she failed to prove a material change in circumstances. The trial court denied Husband’s counter-petition and awarded Wife $14,000 for her attorney’s fees.

Husband appealed the award of attorney’s fees.

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

In postdivorce modification proceedings, a marital dissolution agreement may create a right to recover attorney’s fees. Absent an attorney-fee provision in a marital dissolution agreement, there are statutory grounds for awarding attorney’s fees in alimony-modification cases.

One statutory ground is found at Tennessee Code Annotated § 36-5-103(c). The version of the statute in effect when this case was decided provided:

[t]he plaintiff spouse may recover from the defendant spouse . . . reasonable attorney fees incurred in enforcing any decree for alimony, . . . both upon the original divorce hearing and at any subsequent hearing . . . in the discretion of such court.

Alimony is only awarded to an economically disadvantaged spouse who has a demonstrated need for the support. Because requiring the recipient of alimony to use that support for legal fees incurred in defending an action to modify the alimony would defeat the purpose of the alimony statute, Tennessee courts have interpreted the statute to authorize trial courts to award attorney’s fees to an alimony recipient forced to defend an action to reduce or terminate that alimony.

The Court found the statute conferred on the trial court the authority to award attorney’s fees to Wife:

When Husband filed his counterpetition to terminate his alimony obligation, Wife defended the existing alimony decree, and by doing so Wife was seeking “to enforce” the existing award of alimony then in effect.

The trial court’s judgment was affirmed.

Dissent: Judge McBrayer dissented because he believes the trial court lacked the statutory authority to award attorney’s fees.

Here, the trial court determined, correctly, that [Wife] was not seeking to enforce her alimony award; she was seeking to increase the award.

Judge McBrayer repeated the same reasoning in a concurring opinion he filed a week later in Friesen v. Freisen.

K.O.’s Comment: Tennessee Code Annotated § 36-5-103(c) has since been amended to provide:

A prevailing party may recover reasonable attorney’s fees . . . from the non-prevailing party in any . . . proceeding to enforce, alter, change, or modify any decree of alimony . . . .

In his dissent, Judge McBrayer says this statutory change supports his interpretation of the former statute because, under the new version, “[d]efending against an action to reduce or terminate alimony is no longer enough to trigger an award.”

How so? Defending against an action to reduce or terminate alimony is still seeking to enforce the existing award the same as it was under the prior version of the statute.

Jarman v. Jarman (Tennessee Court of Appeals, Middle Section, October 31, 2018).