Facts: Father and Mother are the divorced parents of three children. Mother received the majority of parenting time in the divorce.

Four years later, Father petitioned to change custody because of Mother’s alcohol abuse. Protracted litigation ensued as Mother sought treatment, struggled with relapses, and concealed the truth from the trial court.

Eventually, the parties announced an agreement in open court that changed custody to Father, provided for equal parenting time, changed decision-making authority, and required Mother to submit to random drug and alcohol tests.

Despite announcing their agreement in April 2019, they did not agree on a written order consistent with the agreement. In November 2019, the trial court entered its own order memorializing the agreement.

In March 2020, the trial court granted Father’s request for attorney’s fees, ordering Mother to pay Father’s attorney’s fees totaling $36,448. In April 2021, Mother prevailed on a child-support dispute and was awarded $13,286 in arrearages from Father.

Mother appealed the award of attorney’s fees to Father.

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

Tennessee Code Annotated § 36-5-103(c) allows a Tennessee court to award reasonable attorney’s fees to the prevailing party in an action to enforce or modify alimony, child support, or a parenting plan.

Mother argued it was error to award Father the attorney’s fees he incurred from May 2019 (the month after the announcement of their agreement) through March 2020 (the month attorney’s fees were awarded). The Court disagreed:

Mother no longer assented to the parties’ agreement and asked the trial court to amend its November 2019 order, thus continuing the child custody modification issue…. [T]he record shows that the issue of child custody was not fully resolved until April 2021 when the trial court denied Mother’s motion to reconsider Father’s [] authority over major decisions concerning the children. So, although the litigation on child custody continued well beyond March 2020, the trial court awarded Father his attorney’s fees through March 2020 only. Because March 2020 marked the end of the substantive litigation over child custody and Father’s request for attorney’s fees, we conclude that the trial court’s award of Father’s fees through March 2020 was not an abuse of discretion ….

Mother also argued the trial court did not consider the fact that she prevailed on the child-support dispute or each party’s ability to pay attorney’s fees. Those arguments met with the same fate:

[C]ontrary] to Mother’s argument, [Tennessee law] does not mandate a denial of attorney’s fees to a party who has not prevailed on every aspect of his or her case; the inquiry is more subtle and fact specific. The mere fact that Mother prevailed on her petition to modify child support does not, ipso facto, foreclose Father’s recovery of attorney’s fees on his successful petition to modify child custody. [] Mother’s alcoholism precipitated Father’s petition to modify custody, and Mother’s subsequent refusal to consent to the parties’ previous agreement delayed the resolution of the custody matter …. As such, the issue of custody comprised the majority of the litigation in this case and occurred over a 16-month period from October 2018 through February 2020. Conversely, the parties spent considerably less time on the litigation of Mother’s petition to modify child support, i.e., the majority of the child-support litigation occurred over a period of less than three months between February 2021 and April 2021. Therefore, under the facts of this case, it was not an abuse of discretion for the trial court to award Father attorney’s fees on his petition to modify custody despite Mother prevailing on her petition to modify child support.

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Father’s ability to pay—or Mother’s inability to pay—his attorney’s fees is not the controlling question here. Because attorney’s fee awards in child custody proceedings are not primarily for the benefit of the custodial parent but rather to facilitate a child’s access to the courts, when a trial court awards attorney’s fees under [the statute], it may consider proof of inability to pay, but such consideration will not be controlling. According to the record, the attorney’s fees Father incurred as a result of this litigation were indeed necessary to protect the children.

The Court affirmed the trial court’s award of Father’s attorney’s fees.

Standley v. Standley (Tennessee Court of Appeals, Middle Section, May 9, 2022).

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