Facts: Husband and Wife divorced in 2012. Seven years later, Husband petitioned for a judgment for Wife’s part of a tax debt addressed in their marital dissolution agreement (“MDA”).

Two weeks before the hearing, Husband voluntarily dismissed his petition.

Two days later, before the order of nonsuit was entered, Wife moved for attorney’s fees, alleging that Husband’s petition was an abusive civil action. The trial court denied this request, finding that Husband’s petition did not meet that criterion.

However, the trial court allowed Wife to request attorney’s fees by requesting to amend the order of voluntary dismissal.

The parties’ MDA provides that the prevailing party shall be entitled to a judgment for attorney’s fees in postdivorce litigation. Wife also argued that she was entitled to attorney’s fees as the prevailing party under Tennessee Code Annotated § 36-5-103(c).

Finding that Wife was the prevailing party, the trial court awarded her $16,500 in attorney’s fees.

Husband appealed.

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

Under Tennessee law, a party in a civil action may recover attorney’s fees only if a contractual or statutory provision creates the right to recover attorney’s fees.

Wife argued she was entitled to attorney’s fees as the prevailing party per the parties’ MDA and Tennessee Code Annotated § 36-5-103(c).

The Court rejected Wife’s arguments because Wife was not the “prevailing party”:

When a voluntary nonsuit is taken, the rights of the parties are not adjudicated, and the parties are placed in their original positions prior to the filing of the suit. A plaintiff’s voluntary nonsuit terminates the action without an adjudication of the merits and leaves the parties as if no action had been brought at all.

Husband’s nonsuit terminated the action without an adjudication of the merits and left the parties as if no action had been brought at all. Neither party is a “prevailing party” for purposes of triggering a right to recover attorney’s fees under either the MDA or Tennessee Code Annotated § 36-5-103(c). Accordingly, we conclude that the trial court erred in awarding Wife her attorney’s fees.

The Court reversed the trial court’s award of attorney’s fees to Wife.

Colley v. Colley (Tennessee Court of Appeals, Middle Section, November 17, 2022).

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