Facts: Husband and Wife entered into a marital dissolution agreement (MDA) that required Husband to leave Wife’s personal property in the garage at a certain time and leave home so Wife could retrieve her property. The items of personal property were itemized in the MDA along with the fair market value of each item.

The MDA also had this enforcement provision:

In the event it becomes reasonably necessary for either [party] to institute legal proceedings to procure the enforcement of any provision of this agreement, the prevailing party shall be entitled to a judgment for reasonable expenses, including attorney fees incurred in procuring the action.

Wife petitioned for breach of contract alleging that, when she retrieved the items, 95% of her property was unsalvageable or damaged, and that some items of her property were not placed in the garage for her to retrieve. She requested a judgment of $10,000 plus her attorney’s fees and costs.

The trial court granted Wife a judgment of $7820 but denied her request for attorney’s fees.

Wife appealed.

On Appeal: The Court of Appeals reversed the trial court.

Tennessee courts have long observed that parties are contractually entitled to recover their reasonable attorney’s fees when an agreement provides that the prevailing party in litigation may have such fees.

In these circumstances, the trial court does not have the discretion to set aside the parties’ agreement and replace it with its own judgment. The sole discretionary judgment the trial court may make is to determine the amount of attorney’s fees that is reasonable.

The Court found error in the trial court’s failure to award attorney’s fees:

Wife initiated this litigation to recover under the MDA, and the court awarded her a judgment. In denying Wife her fees, the court did not enforce that provision of the MDA. While we do not question the court’s rationale for not making the award, . . . the court did not have discretion to deny Wife’s request.

The Court reversed the trial court’s judgment denying attorney’s fees to Wife.

K.O.’s Comment: (1) Lawyers should consider including enforcement provisions in parenting plans.

(2) This opinion is designated a “memorandum opinion,” meaning it cannot be cited or relied on for any reason in any unrelated case.

Ryan-Cothron v. Cothron (Tennessee Court of Appeals, Middle Section, July 31, 2020).