Facts: Father and Mother, the parents of Child, divorced. In the early years of Child’s life, Child lived in Florida less than a mile away from Maternal Grandmother, who saw Child several times each week.

After the divorce, Mother moved to Maternal Grandmother’s property, and Maternal Grandmother continued to see Child regularly.

Maternal Grandmother eventually became estranged from Mother, who then became involved with drugs.

Maternal Grandmother last saw Child in 2018, when Father obtained emergency custody of Child because of Mother’s substance abuse.

Maternal Grandmother sued for grandparent visitation in 2021. After a trial, the trial court dismissed Maternal Grandmother’s petition because she presented no evidence that Child would be in danger of substantial harm without Court-ordered visitation.

The trial court denied Father’s request for attorney’s fees, holding that although Father was the “prevailing party,” TCA § 36-5-103(c) does not apply to grandparent visitation cases to let a biological parent recover attorney’s fees from a grandparent.

Grandmother appealed the denial of grandparent visitation, and Father appealed the trial court’s denial of his attorney’s fees.

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

Tennessee follows the “American Rule” on attorney’s fees, which states that a party in a civil action may recover attorney’s fees only if (1) a contractual or statutory provision creates a right to recover attorney’s fees or (2) some other exception to the American Rule applies, allowing for recovery of attorney’s fees in a particular case.

TCA § 36-5-103(c) says:

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.

The Court held this statute does not allow for the recovery of attorney’s fees in a grandparent visitation case:

[TCA § 36-5-103(c)] does not, however, provide for an award of attorney’s fees in the context of a grandparent visitation case, and inasmuch as Tennessee adheres to the American Rule, we cannot countenance Father’s position on fees….

Although Father endeavors to shoehorn this case under the reach of the statute and characterizes Grandmother’s petition as a “challenge to the existing custody Order,” we note that in a relatively recent appeal, which arose from an action for grandparent visitation, this Court stated that it was “unaware of any contract, statute, or recognized exception that would provide [a basis for an award of attorney’s fees to the grandmother therein].” In light of the foregoing, we hereby respectfully deny Father any relief concerning this issue.

The Court affirmed the trial court’s judgment.

K.O.’s Comment: The “relatively recent” opinion the Court refers to is the 2018 opinion In re Diawn B. Until now, whether attorney’s fees were recoverable in a grandparent visitation case was, in my mind, an open question. The Tennessee Supreme Court in Toms v. Toms relied on the statute to award attorney’s fees to the prevailing party in a custody dispute between a parent and a grandparent. Here, the Court distinguished Toms because that dispute involved custody, not visitation. So, unless there is a legislative fix, this opinion provides a definitive answer to this question for now.

Source: Peirce v. Hope (Tennessee Court of Appeals, Western Section, June 6, 2024).

If you find this helpful, please share it using the buttons below.