Facts: Mother and Father are the divorced parents of five children, only one of whom is a minor. They divorced in New York. Mother and Child moved to Tennessee.

In 2017, Mother asked Father to take out an additional life insurance policy on Father to benefit their children. Although there was already a court-ordered life insurance policy, Mother wanted more insurance. When Father declined, Mother started denying and delaying his court-ordered parenting time. Her shenanigans went on for several years.

Finally, Father petitioned to modify the parenting plan based on Mother’s failure to cooperate and follow the parenting plan. Mainly, Father wanted a set summer schedule so he could schedule vacations and summer plans. He also asked for his attorney’s fees.

Father earns over four times what Mother makes.

The trial court found Mother did not follow the existing parenting plan, denied Father’s requests for reasonable parenting time, did not adhere to her agreement for Father to make up missed time, did not timely reimburse Father for her contribution toward travel costs, and disparaged Father to Child all “for no good reason and purely out of spite.” The trial court found Mother to be “spiteful and vengeful” and unable to cooperate on scheduling Father’s summer vacations.

The trial court ordered a specific summer schedule and awarded Father $15,000 in attorney’s fees.

Mother appealed the award of attorney’s fees, arguing that Father was not the prevailing party on every issue, that he was only awarded one more week of parenting time, that she prevailed in part because she originally had 30 days to reimburse travel expenses and now has 60 days, and that the trial court did not consider her inability to pay.

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

Tennessee Code Annotated § 36-5-103(c) allows a trial court to award reasonable attorney’s fees to the prevailing party in parenting disputes. A party need not prevail on every issue to be considered the prevailing party for attorney’s fees.

Attorney’s fees are awarded in parenting disputes primarily to facilitate a child’s access to the courts, not to benefit the custodial parent. Thus, when a trial court awards attorney’s fees under § 36-5-103(c), it may consider proof of inability to pay, but this consideration will not be controlling. Tennessee courts may also consider other factors, such as whether a parent acted in good or bad faith.

The Court found no error in the trial court’s decision:

It is clear from the record that the trial court properly considered the parties’ ability to pay both by discussing their incomes and the amount of attorney’s fees they each incurred, and then by awarding Father approximately half of the attorney’s fees he incurred in the proceeding. Father’s fees totaled $28,659.75 by the time of trial; yet, the trial court ordered Mother to pay only $15,000 of those fees. Consequently, the record shows that the trial court considered Mother’s financial situation in making the award. Mother essentially argues that the parties’ ability to pay should have been the weightiest factor in the trial court’s analysis because Mother makes much less money than Father. Nonetheless, Mother’s ability to pay is not controlling.

Rather, when awarding attorney’s fees pursuant to § 36-5-103(c), courts may consider other factors such as status as prevailing party and good or bad faith. Here, the factors other than ability to pay militate heavily against Mother…. The record in the case establishes that [Child] was missing her already limited time with Father due in large part to Mother’s inability to coparent…. [W]e discern no abuse of discretion by the trial court.

The Court affirmed the trial court’s judgment.

Source: Berl v. Berl (Tennessee Court of Appeals, Middle Section, April 22, 2024).

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