Facts: Mother and Father are the divorced parents of four children.
After they divorced in California, Father relocated to North Carolina with the children, and Mother relocated to Indiana. Postdivorce litigation ensued in those states.
Father and the children relocated to Tennessee after Father retired from the military.
In June 2017, Mother petitioned the Tennessee court to modify the parenting plan. Father filed an answer denying the allegations and seeking to recover his attorney’s fees per Tennessee Code Annotated § 36-5-103(c), which allows a prevailing party to recover reasonable attorney’s fees from the nonprevailing party

in any criminal or civil contempt action or other proceeding to enforce, alter, change, or modify any decree of alimony, child support, or provision of a permanent parenting plan order, or in any suit or action concerning the adjudication of the custody or change of custody of any children, both upon the original divorce hearing and at any subsequent hearing.

On April 6, 2018, Mother voluntarily dismissed her petition without prejudice, which means she reserved the right to refile it.
On April 20, 2018, because of a new dispute regarding the upcoming summer schedule, Father petitioned to modify the summer schedule. Once again, he requested the recovery of his attorney’s fees.
On May 25, 2018, the trial court approved the parties’ agreement modifying the summer schedule.
Six days later, Father petitioned to recover his attorney’s fees incurred defending Mother’s original petition she voluntarily dismissed on April 6.
Mother moved to dismiss Father’s petition as res judicata because Father did not raise the issue in his petition to modify the summer schedule. Father responded that his petition to modify the summer schedule was “time-sensitive” and “driven by an urgency to have that matter resolved expeditiously” and that it did not preclude him from returning to court to request fees incurred because of Mother’s earlier petition.
The trial court agreed, held that the doctrine of res judicata does not bar Father from recovering attorney’s fees from a prior petition, and ordered Mother to pay $11,963.08 for Father’s attorney’s fees and expenses.
Mother appealed.
On Appeal: The Court of Appeals affirmed the trial court.
The doctrine of res judicata, also known as claim preclusion, bars a second lawsuit between the same parties on the same claim regarding all issues that were, or could have been, litigated in the prior lawsuit. It is a “rule of rest.”
The party asserting a res judicata defense must demonstrate

• that the underlying judgment was rendered by a court with jurisdiction;
• that the same parties were involved in both lawsuits;
• that the same claim or cause of action was asserted in both lawsuits; and
• that the underlying judgment was final and on the merits.

The Court agreed that res judicata did not bar Father’s petition to recover attorney’s fees:

The first action involved . . . a series of allegations that Father alienated Mother, a litany of allegations that Father violated [a court] order, and a specific complaint about child custody for summer 2017. . . .
In Father’s answer, he requested that he “be reimbursed for his attorney[’s] fees incurred as a result of Mother’s filing” the petition. Mother later decided to voluntarily dismiss her petition. Notably, she dismissed her petition without prejudice, thereby reserving her right to adjudicate the matter at a later date. Father’s claim for attorney’s fees was not litigated in the “former suit,” because of Mother’s voluntary dismissal. There was no final judgment on that issue, and the matter remained dismissed without prejudice.
Despite Mother’s decision to voluntarily dismiss her petition without prejudice, Father was still permitted to recover the attorney’s fees he incurred in defending against her petition; [] Mother cannot voluntarily dismiss her petition in order to avoid paying the statutorily permitted attorney’s fees. In accordance with Tennessee Code Annotated § 36-5-103(c), and within a reasonable time following Mother’s dismissal, Father properly filed a petition seeking to recover his statutorily permitted attorney’s fees.
* * * * *
[T]here is nothing in the [agreed] order [regarding the summer schedule] that could be interpreted as having resolved Father’s claim for attorney’s fees in the separate matter or that could be deemed to otherwise preclude his ability to file a petition to recover those attorney’s fees. The fact that the parties had an additional emergency dispute regarding summer custody in the interim that necessitated court intervention appears to be in accordance with the ongoing state of affairs between the parties. There is no indication that “Father engaged in ‘gotcha’ litigation,” as Mother asks this Court to believe.

The trial court’s judgment was affirmed.
K.O.’s Comment: When an opposing party voluntarily dismisses their lawsuit, the better practice is to address attorney’s fees at the time or immediately after the voluntary dismissal. I have successfully argued that the voluntary dismissal is not effective until the counterclaim for attorney’s fees is disposed of, and I think that is the correct position.
Rule 41.01 says “[i]f a counterclaim has been pleaded by a defendant prior to [the voluntary dismissal], the defendant may elect to proceed on such counterclaim in the capacity of a plaintiff.” I read this to mean that if the defendant does not elect to proceed on the counterclaim during the voluntary dismissal, then the claim is waived.
I fail to understand how Father could not pursue his request for attorney’s fees and modification of the summer schedule simultaneously. One can understand how Mother could reasonably perceive Father’s delay to be duplicitous or “gotcha litigation” motivated by his desire to entice Mother to reach a compromise on the summer dispute before launching his action to recover attorney’s fees.
Hayes v. Scoggin (Tennessee Court of Appeals, Western Section, July 25, 2019).