Facts: When Husband and Wife divorced, their marital dissolution agreement (“MDA”) required Husband to pay transitional alimony of $1500 per month for 24 months. It also required him to pay alimony in futuro of $5 per month on the first day of the month. Like most MDAs, theirs contained an enforcement provision requiring “the successful party” to be reimbursed by the losing party for their attorney’s fees in any action to enforce the MDA.

In August and September 2023, Husband did not pay his alimony in futuro obligations on time. Wife’s counsel sent a letter demanding payment of the past-due $10 plus an attorney’s fee of $500 for the cost of enforcing the MDA. The next day, Husband sent payment for the alimony and attorney’s fees and promised to make timely payments in the future.

The following month, however, Husband again did not make his payment. Wife’s counsel demanded payment by October 10 or Wife would begin contempt proceedings. Husband never responded.

On October 12, Wife petitioned for civil contempt and asked for attorney’s fees. Within two days, Husband paid the $1500 transitional alimony payment but did not pay the $5 alimony in futuro payment or pay any of Wife’s attorney’s fees.

A few months later, Husband filed a response alleging that any contempt had been purged. At this time, however, Husband had not paid the $5 alimony in futuro payment or any of Wife’s attorney’s fees. The following month, Husband caught up on the past-due alimony in futuro payments by making a $20 payment.

At the trial in March, Husband tendered $10 to Wife to cure his remaining arrearages. Thus, the sole remaining issue was the matter of Wife’s attorney’s fees.

Wife’s counsel submitted an affidavit itemizing $14,289.50 in attorney’s fees and nearly $400 in expenses required to enforce the MDA. With limited findings, the trial court awarded Wife $2500 in attorney’s fees and expenses.

Wife appealed.

On Appeal: The Court of Appeals vacated the trial court’s judgment.

When a Tennessee court evaluates the reasonableness of an attorney’s fee award, it must consider these factors from Tennessee’s Rule of Professional Conduct 1.5(a):

1. the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
2. the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
3. the fee customarily charged in the locality for similar legal services;
4. the amount involved and the results obtained;
5. the time limitations imposed by the client or by the circumstances;
6. the nature and length of the professional relationship with the client;
7. the experience, reputation, and ability of the lawyer or lawyers performing the services;
8. whether the fee is fixed or contingent;
9. prior advertisements or statements by the lawyer with respect to the fees the lawyer charges; and
10. whether the fee agreement is in writing.

Trial courts should develop an evidentiary record, make findings about each factor, and then determine a reasonable fee that depends on the particular circumstances of the individual case. To facilitate appellate review, trial courts should clearly explain the specific circumstances and factors that support their determination of a reasonable fee in a given case.

The Court found the trial court’s findings were not enough to enable appellate review:

This Court has remanded numerous cases for reconsideration when a trial court has not followed this prescribed procedure. Here, the trial court did not refer to the Rule 1.5(a) factors in its order, nor did it make relevant findings as to why the $2500 in attorney’s fee award was reasonable. As such, it is unclear to this reviewing Court how the trial court arrived at $2500. Because we cannot conduct a meaningful review of the basis of the trial court’s decision, we vacate the award of attorney’s fees and remand for reconsideration of the question of the amount of Wife’s reasonable attorney’s fees. On remand, the trial court is not prohibited from reopening proof on the question. However, the trial court is instructed to consider the Rule 1.5(a) factors and to make written findings consistent with these factors.

For these reasons, the Court vacated the trial court’s order.

K.O.’s Comment: Some may wonder why the parties agreed for Husband to pay Wife alimony in futuro of only $5 per month. This is sometimes done when the case is an alimony in futuro case, but the obligor lacks the present ability to pay more. Alimony in futuro is modifiable. By entering an award for a nominal amount, it preserves the possibility of a more appropriate alimony obligation if the obligor becomes able to pay it in the future.

Source: O’Rourke v. O’Rourke (Tennessee Court of Appeals, Middle Section, July 2, 2025).

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