Tennessee Supreme Court Debates “Prevailing Party” in Nashville, Tennessee Postdivorce Dispute: Colley v. Colley

Facts: Husband and Wife, the parents of three children, divorced in 2012 with a marital dissolution agreement (“MDA”). Husband agreed to pay Wife transitional alimony and maintain life insurance to secure the alimony payment. The MDA also included this provision awarding attorney’s fees to the prevailing party in a dispute over the enforcement of the MDA:

In the event it becomes reasonably necessary for either party to institute or defend the legal proceedings related to the enforcement of any provision of this Agreement, the prevailing party shall also be entitled to a judgment for reasonable expenses, including attorney’s fees, incurred in connection with such proceedings.

A year later, Husband filed a petition to change the parenting plan. After the parties engaged in discovery, Husband voluntarily dismissed his petition over a year after it was filed.

Wife became engaged to remarry, with her marriage scheduled for March 2019.

In January 2019, Husband petitioned to terminate Wife’s transitional alimony, alleging that she was living with her fiancé before her scheduled marriage. Husband also sought to remove the requirement for life insurance to secure the alimony obligation.

Wife agreed that the transitional alimony and need for life insurance would end when she remarried in March. But she denied there was any reason to terminate alimony for the two months before her remarriage. She also asked for an award of attorney’s fees.

At a hearing on Wife’s motion for protective order in response to Husband’s overbroad discovery requests, the trial court observed that Husband “has been a bully and he has bullied [Wife] for years, which must end.” The trial court also stated that it “will not allow [Husband] to continue to bully [Wife].”

After a settlement conference failed nearly two years after Husband’s petition was filed, Husband voluntarily dismissed his petition. A voluntary dismissal is also called a “nonsuit.”

Wife filed a motion to recover her attorney’s fees per the MDA and TCA § 36-5-103(c).

The trial court awarded Wife $16,500 for her attorney’s fees.

Husband appealed, and the Court of Appeals reversed the trial court’s award of attorney’s fees to Wife. The Court of Appeals held neither party was a “prevailing party” because Husband voluntarily dismissed his petition and, therefore, there was no judicial determination on the merits.

The Supreme Court granted Wife’s request for permission to appeal.

On Appeal: The Tennessee Supreme Court unanimously reversed the Court of Appeals but split 3-2 on the rationale.

In Tennessee, parties to civil cases can usually only recover their attorney’s fees if a contractual or statutory provision creates a right to do so.

Marital Dissolution Agreement. The first issue is whether Wife was entitled to attorney’s fees even though Husband voluntarily dismissed his post-divorce petition before it was adjudicated on its merits. The Court held that Wife was the prevailing party even though there was no adjudication on the merits:

Specifically, under the language in the attorney fee provision in the MDA, “it [became] reasonably necessary for [Wife] to … defend legal proceedings related to the enforcement of” the transitional alimony and life insurance obligations awarded to Wife in the MDA. Consequently, under this attorney fee provision, Wife is “entitled to a judgment for reasonable expenses, including attorney’s fees, incurred in connection with such proceedings” if she is considered the “prevailing party,” in light of Husband’s nonsuit.

Wife argues that, when litigation Husband initiated “ends with a judgment that dismisses a plaintiff’s claims and affords him no relief, it makes little sense to conclude that the defendant did not ‘prevail’” as the term is used in the MDA. In response, Husband argues Wife cannot be considered the prevailing party in the context of his petition to end his alimony obligation because he nonsuited the petition, so the trial court never ruled on the merits.

We must agree with Wife. Husband’s position finds no support in the text of the MDA. The filing of Husband’s petition to reduce his alimony obligations under the MDA forced to Wife to defend the MDA. In doing so, Wife’s only goal was to preserve the status quo, through either a decision on the merits or dismissal of the petition. Husband’s choice to nonsuit his petition meant that Wife, as the defending party, achieved that result.

As Husband acknowledged in oral argument, the result would be the same with any type of dismissal of Husband’s petition; a voluntary dismissal without prejudice, a voluntary dismissal with prejudice, a dismissal by the trial judge on the procedural ground, or a dismissal by the trial judge on the merits. In any of these scenarios, Wife successfully achieved her objective of keeping her alimony award. Wife is the “prevailing party” in the trial court proceedings.

Accordingly, under the attorney fee provision in the parties’ MDA, as the “prevailing party,” Wife is “entitled to a judgment for reasonable expenses, including attorney’s fees, incurred in connection with” her defense of Husband’s petition at the trial court level.

Statute. TCA § 36-5-103(c) lets trial courts award attorney’s fees to the prevailing party in certain family-law disputes, and this version of the statute was in effect when Husband filed his petition in January 2019:

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 proceedings 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 that Wife was the “prevailing party” under the statute where Husband voluntarily dismissed his postdivorce petition to end his alimony obligation:

[The revisions to the statute in 2018] bespeak an intent to broaden § 36-5-103(c), not narrow it. In particular, the term “prevailing party” is overall more inclusive than [the previous version of the statute’s reference to the] “plaintiff spouse.” The term “prevailing party” would allow the statute to reach actions in which an ex-spouse is placed in the position of having to litigate to protect or defend an award of alimony or child support but is not necessarily a “plaintiff” in the litigation.

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In Husband’s brief, he takes the position that, in order to qualify for an award of attorney fees, “the case must’ve been heard and decided on the merits and facts of the case and the outcome must have materially altered the legal relationship of the parties.” Respectfully, this position is inconsistent with the text of the statute. It explicitly applies in “any … proceeding to enforce, alter, change, or modify any decree of alimony….” These are all proceedings in which material alteration in the parties’ legal relationship could occur, as where an obligor spouse gets a reduction in alimony or child support. But they are also proceedings in which an obligate spouse must incur attorney fees to defend an existing award of alimony or child support granted in the original divorce. In such a proceeding, the objective of the obligee spouse may be no change whatsoever, that is, to prevent an outcome that “materially alter[s] the legal relationship of the parties.”

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It is not unusual in family law cases to see an obligor former spouse with significant monetary resources force a financially disadvantaged ex-spouse to incur attorney’s fees postdivorce to enforce or defend alimony, child support, or a parenting plan originally ordered by the trial court….

The trial judge in this case apparently viewed Husband as having taken such a path.

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The petition that is the subject of this appeal was filed roughly 2 months before Wife’s scheduled remarriage, when Husband’s transitional alimony obligation would naturally end if he did nothing at all. The petition was Husband’s effort to keep from paying only two months of transitional alimony and the associated life insurance premiums. His fulsome discovery requests over this minimal dispute included a demand that Wife hand over to her Husband her actual cell phone, purportedly to allow him to conduct a forensic examination without limit. His aggressive postdivorce litigation prompted the trial judge to comment that Husband “has been a bully and he has bullied [Wife] for years.”

The statute is clearly applicable here. We must reject Husband’s contention that, in order to qualify for an award of attorney fees, the case must have been decided in a manner that “materially altered the legal relationship of the parties.” The text of the statute expressly provides for an award of attorney fees for a party defending against a petition to “alter, change, or modify” an award, where the defending party seeks no alteration in the legal relationship of the parties.

This tees up the question of whether Wife can be considered a “prevailing party” under § 36-5-103(c). Under the statute, trial courts may award attorney fees “from the non-prevailing party” to the “prevailing party.”

[I]n the proceedings on Husband’s petition to curtail the alimony, Wife sought no affirmative relief other than attorney fees and costs. She sought only to fend off Husband’s attempt to end the alimony sooner than provided in the MDA. Husband argues Wife cannot be considered the “prevailing party” in the context of his petition to end his alimony obligation because the trial court never ruled on the merits of his petition.

Respectfully, Husband’s position finds no support in the text of the statute. The text in § 36-5-103(c) contains no indication that a court decision on the merits is required. The nonsuit of Husband’s petition meant that Wife succeeded in fending off his attempt to reduce the alimony he had to pay her…. Regardless of the type of dismissal, Wife successfully achieved her objective of retaining her alimony award. She “prevailed” over Husband in his postdivorce effort to end the alimony.

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Under § 36-5-103(c) as amended, the challenger who forfeits, loses, and his opponent wins. Here, Wife sought to preserve the status quo, and whether she wins on the merits or by voluntary dismissal, both are wins for the status quo.

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Husband argues that if we hold that a respondent may be a “prevailing party” under § 36-5-103(c) when the petitioner nonsuits his petition to alter or modify an award of alimony, an award of child support, or a parenting plan, this would chill the right of plaintiffs to take a voluntary nonsuit. Even when taking a nonsuit is the most responsible decision, Husband warns, “no party would ever dismiss a case voluntarily … for fear of the risk of having to pay attorney fees.”

Not so. Awards of attorney fees under § 36-5-103(c) are permissive, not mandatory. The statute says they are “fixed and allowed in the court’s discretion.” Trial courts have full discretion under § 36-5-103(c) to consider the equities between the parties in deciding whether to award reasonable attorney fees after a nonsuit.

The Supreme Court reversed the Court of Appeals and affirmed the trial court’s attorney fee award to Wife. It also awarded Wife her reasonable attorney’s fees for the appeal to the Court of Appeals and the Supreme Court.

Concurring Opinion: Justice Campbell filed a separate opinion concurring in the outcome but disagreeing about the reasoning and legal analysis. Justice Bivens joined her.

In my view, a voluntary dismissal without prejudice—standing alone—could not make [Wife] a prevailing party. Although [Wife] may have “prevailed” in the colloquial sense of that term when the petition was voluntary [sic] dismissed, she was a “prevailing party” as that legal term of art has long been understood only because the voluntary dismissal meant that she had succeeded in defending her earlier court-awarded relief. To the extent the majority opinion holds that a defendant can be a prevailing party in the absence of any judicially sanctioned change in the parties’ legal relationship or judicial rejection of the plaintiff’s claims, I disagree.

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In my view, [Husband’s] voluntary dismissal without prejudice of his petition to modify the marital dissolution agreement did not, alone, make [Wife] a prevailing party. That’s because the voluntary dismissal did not itself alter the parties’ legal relationship. Nor did it involve judicial rejection of [Husband’s] claims, on the merits or otherwise.

*     *     *     *     *

[Wife] was a prevailing party in the earlier divorce proceedings in which the court approved the marital dissolution agreement that awarded her relief. When additional proceedings are necessary to defend or enforce a previous victory, a party can rely on his or her earlier prevailing-party status to qualify as a prevailing party in the later proceedings. That’s true even if the additional proceedings don’t adjudicate the merits of any claims or result in another judicially sanctioned change in the parties’ relationship.

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Although I disagree with the majority’s decision to adopt an interpretation of “prevailing party” that applies only in the family law context, lower courts and litigants in future cases should take the majority at its word and avoid extending that sui generis interpretation to other areas of the law. If applied more broadly, the majority’s position that a party prevails whenever he achieves his objectives in the litigation would disrupt settled precedent and put us out of step with the lion’s share of federal and state courts. Because the majority opinion stresses that it is interpreting “prevailing party” only for purposes of the marital dissolution agreement and § 36-5-103(c), its reasoning should be cabined accordingly.

K.O.’s Comment: (1) Curiously, the Tennessee Attorney General’s Office submitted an amicus curiae brief asking the Supreme Court to interpret the phrase “prevailing party” in all Tennessee statutes based on federal decisions applying federal civil rights statutes. It also represented the holding in a U.S. Supreme Court case that the majority “respectfully” said was not, in fact, what the Court held. Respectfully, ouch. This is another example of third parties trying and failing to muck around in family law matters.

(2) In previous cases, Justice Campbell has held herself out as a strict textualist. The consistency of that representation is tested here, where she avoids acknowledging the clear text of § 36-5-103(c) and its applicability to actions to “enforce, alter, change, or modify” an earlier order regarding alimony, child support, or a parenting plan. In every lawsuit where the statute applies, one party seeks relief, and the other opposes it. If the party seeking relief doesn’t get it, common sense tells us the other party is the prevailing party, whether their success comes from a judge or from the other party voluntarily dismissing their claim before they lose on the merits. Nothing in the statute suggests the timing or sequence of those events matters. Either way, the result is the same, and the result is what matters. The result determines the identity of the “prevailing party.” The text of this statute could not be any clearer.

While I am a Justice Kirby fanboy, it’s not just because she’s among the few recipients of the World’s Most Awesome Judge award (although that doesn’t hurt). It’s because she shows wisdom and common sense in this opinion, which Justices Page and Tarwater joined. So, add my name to the list. Pretend Justice Herston joins the majority opinion, although I would’ve strenuously lobbied for reducing its 27-page length by half. If appellate courts expect busy lawyers to read their opinions, they must shorten them. Back in my heyday (the 90s!), I recall most appellate opinions were 5-9 pages long. Many more lawyers read the opinions back then. The shorter length is a big reason why.

Source: Colley v. Colley (Tennessee Supreme Court April 29, 2025).

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