Facts: Husband and Wife, the parents of five children, separated after 10 years of marriage.

Wife’s first attorney withdrew and filed an attorney’s lien to recover $82,000 of unpaid attorney’s fees and expenses.

The marital residence was worth $600,000 with an outstanding mortgage balance of $317,500 and the attorney’s lien from Wife’s first attorney of $82,000.

Without including the attorney’s lien, the equity in the marital residence totaled $282,500. Including the attorney’s lien reduces the equity to $200,500.

After what the opinion describes as “more than six years of highly contentious litigation,” the trial court entered a parenting plan awarding equal time to both parents, divided the marital estate 69% to Wife and 31% to Husband, and awarded wife transitional alimony for $2500 per month for five years.

In dividing the marital estate, the trial court awarded the marital residence to Husband but required him to pay 50% of the equity to Wife after paying the attorney’s lien.

Husband appealed.

On Appeal: The Court of Appeals modified the trial court’s judgment.

Husband argued the trial court’s division of the marital residence made him responsible for paying one-half of Wife’s $82,000 fee to her first attorney, and the Court agreed:

It is well-settled that an award of attorney’s fees in a divorce case constitutes alimony in solido…. Because the trial court did not consider or apply the statutory factors set forth in [Tennessee Code Annotated] § 36-5-121(i) as required in making what is clearly a [$41,000] award of Wife’s attorney’s fees, it applied an incorrect legal standard. We have determined that under the circumstances presented in this case, such an award is unwarranted.

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The voluminous size of the technical record and the enormous legal bills incurred by both parties attest to their extraordinary litigiousness. As found by the trial court, Wife filed “at least” five petitions for contempt against Husband, none of which were successful. Wife made numerous allegations of abuse against Husband, “including inappropriate contact with the children by Husband and by a young female family member,” according to the trial court’s findings, which necessitated DCS involvement; but the trial court found that “DCS investigations of the accusations have resulted in no findings of abuse.” To provide one example, Wife’s response to the guardian ad litem’s (GAL’s) report and proposed parenting plan included, but was not limited to, the following: (1) motion to disqualify the GAL; (2) subpoena to take deposition duces tecum of the GAL; (3) motion to consider child’s preference and allow testimony of children; (4) motion to transfer and assign the case to an out of county judge; (5) motion to exclude the testimony of [] the custodial evaluator; and (6) a separate petition to disqualify the GAL with accompanying memorandum of law, filed after Wife’s motion seeking the same result.

For his part, Husband also filed no small number of motions with the trial court. He argues that most of them involved attempts to obtain and exercise visitation with his children. Wife asserts that her litigiousness was motivated by her genuine fears for the safety and welfare of the children. The parties were within their rights to fully and strenuously litigate each issue, but in the absence of circumstances warranting an exception to the application of the American Rule [generally requiring each party to pay their own attorney’s fees], they should each be responsible for their own attorney’s fees.

The Court modified the trial court’s division to provide that each party receive 50% of the equity in the marital residence without deducting the debt secured by an attorney’s lien for fees charged by Wife’s first attorney. The remainder of the trial court’s judgment was affirmed, and neither party received attorney’s fees incurred on appeal.

K.O.’s Comment: I share this glorious quotation from the opinion without context or explanation:

The trial court was not persuaded by Wife’s argument that Husband’s consumption of a glass of wine at the 2017 Super Bowl party was a reasonable ground to restrict Husband’s visitation with his children, and neither are we.

For the record, the New England Patriots beat the Atlanta Falcons 34-28, with Tom Brady leading the Patriots to victory after overcoming a 28-3 deficit.

Davis v. Davis (Tennessee Court of Appeals, Western Section, October 13, 2021).

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