Attorney’s Fees Challenged in Lebanon, Tennessee Alimony Modification: Himes v. Himes

May 10, 2021 K.O. Herston 0 Comments

Facts: When Husband and Wife divorced, they agreed Husband would pay $5000 each month in periodic alimony and keep a $500,000 term life insurance policy benefiting Wife to secure the payment of alimony.

Three and a half years later, Husband petitioned to decrease his alimony obligation because he lost his job. The trial court reduced his obligation to $2500 per month.

One and a half years after that, Wife petitioned to increase Husband’s alimony back to the original $5000 per month. She also complained that Husband no longer kept the life insurance policy.

Husband counter-petitioned to decrease or terminate his alimony obligation because of his retirement at age 65. Regarding life insurance, Husband explained that the annual premium increased tenfold from $2702 to $27,740. He replaced the policy with a $250,000 term policy with a more affordable premium.

The trial court found that neither party foresaw the dramatic increase in the life insurance premium, Husband’s conduct was not willful, and Wife suffered no damages because of the policy lapse. Husband was not in contempt of court.

The trial court then found Wife was entitled to the retroactive increase in alimony she requested. Likewise, Husband was entitled to the prospective decrease in alimony he requested because of his retirement.

The trial court denied Wife’s request for attorney’s fees.

Wife appealed.

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

Wife argued she was entitled to attorney’s fees under the marital dissolution agreement and Tennessee Code Annotated § 36-5-103(c).

Marital Dissolution Agreement. Tennessee courts have no discretion to deny an award of attorney’s fees mandated by a valid and enforceable MDA. Absent any ambiguity, courts must interpret and enforce the MDA according to its plain terms.

The MDA contained this enforcement provision:

In the event either party has to petition the Court for enforcement of any of the provisions of this Agreement, then the party at fault shall be responsible for reasonable attorney fees, expenses, and court costs in the enforcement of same.

Wife argued she had to petition the court to enforce both the alimony and life insurance provisions in the MDA, and she was partly successful.

The Court found Wife’s requested fees did not fit within the scope of the MDA’s enforcement provision:

Wife’s petition to modify alimony cannot be characterized as a petition to enforce the alimony provision in the MDA. . . . [The trial court previously] modified the alimony provision. It is undisputed that Husband was current in his alimony payments when Wife filed her petition.

While Wife did petition the court to enforce the life insurance provision, the court declined to find Husband “at fault.” Only the party “at fault” is responsible for paying the fees associated with enforcement of the MDA. We must enforce the parties’ contract as written.

Tennessee Code Annotated § 36-5-103(c). This statute authorizes a court to award reasonable attorney’s fees to a “prevailing party” in a proceeding to modify an alimony award.

The Court found no error in the trial court’s denial of fees because neither party prevailed:

Wife sought a return to the original alimony amount. Husband requested a reduction or termination of alimony. And the [trial] court awarded both parties partial relief. We cannot say that the [trial] court’s decision was an abuse of discretion.

The trial court’s judgment was affirmed.

Himes v. Himes (Tennessee Court of Appeals, Middle Section, April 20, 2021).

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Attorney’s Fees Challenged in Lebanon, Tennessee Alimony Modification: Himes v. Himes was last modified: May 4th, 2021 by K.O. Herston

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