Facts: Husband and Wife divorced after 19 years of marriage.

Their five-day trial focused on questions of property classification.

After five loooong days, the trial court expressed its frustration with Wife changing her testimony about when she transferred proceeds from the sale of her business many years earlier.

Citing its “discretion” to award attorney’s fees, the trial court then awarded attorney’s fees to Husband for four of the five days of trial that the trial court determined occurred because of “the unreasonable arguments of [Wife].”

Wife appealed.

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

Tennessee follows the “American rule” for an award of attorney’s fees. Under the American rule, a party in a civil case may recover attorney’s fees only if

• a contractual or statutory provision creates a right to recover attorney’s fees, or
• some other recognized exception to the American rule applies.

The Court found the trial court lacked a legal basis for awarding attorney’s fees to Husband:

Although a party can be awarded attorney’s fees as an award of alimony in solido in a divorce action, the trial court stated nothing with regard to an award of alimony to Husband and did not make findings relevant to such an award to Husband. There was also no contract in this case providing for an award of attorney’s fees. Furthermore, Tennessee Rule of Civil Procedure 11 allows an award of attorney’s fees as a sanction when the trial court finds that a party has presented a pleading, written motion, or other document to the court “for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” However, in that circumstance, sanctions can be imposed only after the party or attorney is provided with notice and a reasonable opportunity to respond.

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[T]he trial court in this case does not specifically refer to Rule 11 as its authority for imposition of the award of attorney’s fees, only that it was at the trial court’s discretion and that Wife had caused an unreasonable delay due to her unfounded arguments and contradictory testimony. We note that the trial court’s reasoning for its award of attorney’s fees is similar to the language in Rule 11 allowing sanctions when the parties’ filings are for an improper purpose such as “to cause unnecessary delay or needless increase in the cost of litigation.” However, the trial court did not provide Wife with notice and an opportunity to respond to any allegation of such by following the procedure set forth in Rule 11.03 prior to the award of attorney’s fees.

Because the trial court lacked a legal basis upon which to award attorney’s fees, e.g., alimony or Rule 11 sanctions, the award of attorney’s fees was reversed.

Abner v. Abner (Tennessee Court of Appeals, Eastern Section, September 18, 2020).