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

Their marital dissolution agreement (MDA) required Husband to:

• prepare a qualified domestic-relations order awarding half of his pension to Wife within 60 days;
• reimburse Wife for her health insurance premiums for 12 months; and
• supply proof of life insurance securing the alimony award and proof that Wife is the sole irrevocable beneficiary.

Their MDA also had this enforcement provision:

Should either party incur any expense or legal fees as a result of the breach or noncompliance of this Agreement, should either party be caused to file a petition for specific enforcement and/or contempt of court relative to this Agreement, or should either party otherwise be caused to litigate to collect from a party, estate, or third-party any sums or property to be transferred or received herein . . ., the Court shall award all reasonable attorney fees and suit expenses to the non-defaulting party, after such hearing and upon appeal.

Three months after their divorce, Wife petitioned for civil contempt alleging that Husband did not prepare the qualified domestic-relations order, reimburse her health insurance costs, and provide proof of life insurance.

Husband denied willfully disobeying the MDA. For example, he said his lawyer emailed the proposed qualified domestic-relations order to Wife’s lawyer, who never responded.

While the trial court denied Wife’s petition for civil contempt after finding that Husband did not act willfully or intentionally, the trial court noted it was “abundantly clear that there was no full and accurate compliance” by Husband.

The trial court denied Wife’s request for attorney’s fees after finding Husband the prevailing party.

Wife appealed.

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

In Tennessee, a party in a civil case generally may recover attorney’s fees only if a contract or statute creates a right to recover attorney’s fees. Otherwise, litigants handle their own attorney’s fees.

An MDA is a contract, and many include provisions about an award of attorney’s fees in postdivorce proceedings. Here, the parties had such a provision (block quoted above).

Wife argued that the MDA entitled her to attorney’s fees because, regardless of his intent, Husband’s noncompliance required her to petition to enforce the MDA.

The Court agreed it was error to deny Wife her attorney’s fees even though her petition was denied:

[W]e conclude that the trial court’s disposition on the matter of attorney’s fees under the provision of the MDA was in error. . . . [T]he trial court determined that [Husband] was the prevailing party and, under this theory, declined to award [Wife] her attorney’s fees. Respectfully, we find this conclusion to be in conflict with the clear and unambiguous language of the parties’ MDA. The language in the MDA in this case expressly provides, in pertinent part, that, “. . . the Court shall award all reasonable attorney fees and suit expenses to the non-defaulting party, after such hearing and upon appeal.” . . . The trial court, in its order, found that “it is abundantly clear that there was no full and accurate compliance on behalf of Husband, with the terms of the Agreement at the time the petition was filed.” Therefore, as [Husband] was not in compliance as required by the MDA, he was effectively in default. As a result of [Husband’s] noncompliance, [Wife] incurred legal fees in filing her petition to enforce her rights under the MDA and, according to the clear language of the MDA, was entitled to her attorney’s fees.

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As evidenced by [Wife’s] petition for contempt and the trial court’s order noting [the Husband’s] noncompliance, [Husband] failed to uphold his obligations at the time of [Wife’s] filing. . . . We do not regard this as being merely a technical or unimportant omission or defect. Rather, as is clear from the trial court’s findings, [Husband] was not compliant with several of the MDA’s provisions, which necessitated [Wife’s] filing of her petition. As we perceive it, this is a clear breach of a contractual provision agreed to by the parties . . . .  [W]e find that the award of attorney’s fees in this case clearly carries out the parties’ stated intent in the MDA, as it states that the defaulting party should be required to pay the attorney’s fees of the non-defaulting party who incurred fees and expenses due to noncompliance or a breach.

The Court reversed the trial court’s order denying Wife her attorney’s fees and granted her attorney’s fees incurred on appeal.

Bachelor v. Burrell (Tennessee Court of Appeals, Western Section, January 21, 2021).

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