Facts: The trial court approved Husband and Wife’s marital dissolution agreement (“MDA”) when they divorced in 2021. Notably, the MDA did not include a provision allowing the prevailing party in an action to enforce the MDA to recover their attorney’s fees.

Six months later, Husband filed a petition for civil contempt alleging that Wife was violating a provision in the MDA concerning the return of Husband’s personal property.

Wife responded by claiming Husband retrieve his personal property and filed his contempt petition only because Wife insisted he execute a quitclaim deed required by the MDA. Wife sought to recover her attorney’s fees per Tennessee Code Annotated § 36-5-103(c).

When Husband rested his case at trial, the trial court granted Wife’s motion for a directed verdict, finding that Husband acknowledged receiving all the items of personal property listed in the MDA but wanted additional items not listed in the MDA. As for Wife’s request for attorney’s fees, the trial court found Tennessee Code Annotated § 36-5-103(c) did not apply to civil contempt related to property disputes. Thus, the trial court determined that Wife could not recover attorney’s fees in her successful defense to against Husband’s contempt petition.

Wife appealed the denial of her request for attorney’s fees.

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

In Tennessee, parties are usually responsible for their own attorney’s fees. Tennessee Code Annotated § 36-5-103(c) creates an exception for certain family-law matters:

A prevailing party may recover reasonable attorney’s fees, which may be fixed and allowed in the court’s discretion, from the nonprevailing party in any criminal or civil contempt action or other proceeding to enforce, alter, change, or modify any decree of alimony, child support, or provision of a permanent parenting plan order, or in any suit or action concerning the adjudication of the custody or change of custody of any children, both upon the original divorce hearing and at any subsequent hearing.

Wife argued the statute lets attorney’s fees be awarded to a prevailing party in a contempt proceeding and, Wife argued, this includes any contempt proceeding. In this case of first impression, the Court disagreed:

We conclude that the plain language of Tennessee Code Annotated § 36-5-103(c) provides for attorney’s fees solely in matters involving alimony, child support, permanent parenting plan provisions, and custody of children.

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The entire text of § 36-5-103(c) is punctuated as one sentence. We find it helpful in analyzing the plain meaning of the statutory language to examine the “natural construction” of the sentence at issue.

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Upon thorough review of the plain language of the statute, we hold that Tennessee Code Annotated § 36-5-103(c) provides for attorney’s fees solely in matters involving alimony, child support, permanent parenting plan provisions, and custody of children. To the extent that others may entertain Wife’s interpretation of the statute, we note that this holding is, on its face, a matter of first impression. However, the statutory provision has been previously applied in accordance with this holding in numerous decisions.

The Court affirmed the trial court’s decision to deny Wife’s request for attorney’s fees because Tennessee Code Annotated § 36-5-103(c) does not provide for attorney’s fees to be awarded for enforcement of property issues in a divorce.

K.O.’s Comment: (1) At the close of Husband’s proof, Wife made a Rule 50.01 motion for directed verdict, and the trial court granted the motion. Tennessee law is clear that motions for directed verdict made per Rule 50 “have no place in bench trials.” See, e.g., In re Jonathan S. Jr. The proper motion in a bench trial is one for involuntary dismissal per Rule 41.02.

(2) Judge Frierson is credited with writing this opinion that has excerpts such as these:

• One of the clauses in § 36-5-103(c) is a nonrestrictive relative clause, signaled by the use of the relative pronoun, “which,” as the subject (relating back to “reasonable attorney’s fees”) and presenting the information that such fees “may be fixed and allowed in the court’s discretion.”
• The subject of this clause is “[a] prevailing party,” and the main verb phrase is “may recover,” which is followed by the direct object, “reasonable attorney’s fees.” Next appears the prepositional phrase, “from the nonprevailing party,” explaining from whom the fees may be recovered.
• Each of the four uses of “or” in the first “in” phrase does function to separate a word or phrase in an alternate relationship and indicate that each of the separated words or phrases could be employed without the other.

Can you tell that Judge Frierson’s law clerk has a Ph.D. in English? I bet she really enjoyed writing this opinion.

Source: Parker v. Parker (Tennessee Court of Appeals, Eastern Section, October 12, 2023).

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