Facts: Mother and Father, the parents of two children, divorced with a parenting plan.

Three years later, Mother notified Father of her intention to move with the children from Parsons, Tennessee, to Nashville, Tennessee. Father filed a petition in opposition and asked to be designated the primary residential parent.

Shortly thereafter, Father took actions that resulted in a dependency and neglect action being filed by the Department of Children’s Services (“DCS”) alleging possible abuse by Mother’s husband, Stepfather. The relocation matter was suspended while the dependency and neglect action moved forward.

A few months later, DCS agreed to dismiss its petition in juvenile court provided Stepfather had no contact with the children and the issues of custody and visitation returned to the trial court to be decided with the pending relocation matter. Thus, jurisdiction over the relocation matter returned to the trial court.

The trial court found the Father did not prove a material change sufficient to justify changing the parenting plan. The trial court also granted Mother’s request to move with the children and dissolved the no-contact order as to Stepfather. Mother was designated the primary residential parent, and Father was awarded visitation every other weekend and for large parts of the summer. The trial court also awarded Mother a $56,000 judgment for her attorney’s fees and expenses, some of which were incurred while defending the dependency and neglect action.

Father appealed, arguing that Mother could not recover attorney’s fees incurred defending against the dependency and neglect action.

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

Here, the juvenile court, with the agreement of the parties, dismissed the dependency and neglect action, but kept in place significant restrictions on Mother’s parenting time. The juvenile court clearly intended the trial court to resolve the remaining issues of visitation and custody in the relocation proceeding. Thus, the juvenile court transferred at least a portion of what was at issue in the dependency and neglect action to the trial court for final resolution.

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Father points out that he did not initiate the juvenile court matter, as DCS initiated that action on the basis of a referral by the children’s counselors. The trial court found, however, that Father took the children to [the counselors] without Mother’s notice or consent, in violation of the parties’ parenting plan. Thus, Father’s actions were the catalyst for the entire series of events that led to the DCS action. While in some cases a parent may certainly be justified in initiating a dependency and neglect action when abuse is suspected, the trial court found that was not the case in this particular instance. Still, Father certainly capitalized on the DCS action, as he continuously cited the allegations at the heart of the DCS investigation as a basis for denying Mother’s efforts to relocate and to be named primary residential parent of the children…. [W]e cannot conclude that the trial court abused its discretion in determining that it could award fees incurred during the dependency and neglect proceeding following the transfer of the custody and visitation issues to the trial court for final resolution along with the relocation issue.

The Court affirmed the trial court’s judgment for attorney’s fees.

K.O.’s Comment: Mother also asked for a judgment for her attorney’s fees incurred on appeal. However, she relied only on the statute that allows fee awards to a prevailing party when an appeal is frivolous, which is a narrow—and rare—situation. Unfortunately, Mother did not cite the attorney’s fee provision in the parental relocation statute or TCA §36-5-103(c), which applies when changing a parenting plan. Doing so would have likely led to a judgment for her attorney’s fees on appeal.

Source: Key v. Gonzales (Tennessee Court of Appeals, Western Section, February 5, 2024).

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