Alan Bradley Pounders v. Tiffany White Pounders

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

April 19, 2011 Session

ALAN BRADLEY POUNDERS v. TIFFANY WHITE POUNDERS

Direct Appeal from the Circuit Court for Shelby County

No. CT-004907-08 Jerry Stokes, Judge

No. W2010-01510-COA-R3-CV - Filed August 31, 2011

This is an appeal of an award of attorney fees in a post-divorce matter. The father had filed

a petition to modify the permanent parenting plan, seeking to increase his parenting time and

reduce his child support obligation. Approximately six months later, after Father’s discovery

deposition was taken, he asked the court to dismiss his petition to modify without prejudice.

The trial court dismissed the petition but awarded the mother $20,000 for her attorneys’ fees.

The father appeals, arguing that the trial court lacked authority to award attorney fees and

that the amount awarded was arbitrary and unreasonable. We find that the trial court had the

authority to award attorney’s fees, but due to the lack of findings by the trial court regarding

the reasonableness of the fee award, we vacate the award and remand for further

proceedings.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Vacated and

Remanded

A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which D AVID R. F ARMER,

J., and J. S TEVEN S TAFFORD, J., joined.

Leslie Gattas Coleman, Keating Lowery, Memphis, Tennessee, for the appellant, Alan

Bradley Pounders

Loys A. “Trey” Jordan, III, Joseph B. Baker, Memphis, Tennessee, for the appellee, Tiffany

White Pounders

OPINION

I. F ACTS & P ROCEDURAL H ISTORY

Alan Bradley Pounders (“Father”) and Tiffany White Pounders (“Mother”) married

in 1996 and had three children. They were divorced on January 7, 2009. The permanent

parenting plan incorporated by the final decree of divorce provided that Father would have

50 days of residential time with the children, but his parenting time was to be supervised due

to Father’s continuing treatment for alcoholism. Mother was to have 315 days of residential

time with the children. The parenting plan required Father to pay $1,045 in child support to

Mother each month.

Shortly after the divorce, both parties filed petitions for contempt, which were

eventually dismissed by consent. Father also petitioned the court to designate a new

supervisor for his visitation. Then, on August 3, 2009, Father filed a petition to modify the

permanent parenting plan, in which he sought an increase in his parenting time. He alleged

that a material change in circumstances existed, in part, because he was in the recovering

stages of his alcoholism. He further alleged that Mother had been attempting to “frustrate”

his contact with the children and that the parties had disagreements about the parenting

arbitrator who had been chosen to decide issues regarding Father’s supervised visitation.

Father claimed in his petition that he was fully capable of caring for the children, “both

supervised and unsupervised.” Father submitted a proposed parenting plan that would

increase his parenting time with the children to 104 days per year and decrease Mother’s

parenting time to 261 days. Regarding child support, Father’s proposed parenting plan

utilized different figures for the parties’ gross incomes than those that had been used in the

initial parenting plan, and his plan proposed to reduce Father’s child support obligation from

$1,045 per month to $519 per month. Father also requested that he be awarded his attorney’s

fees for presenting the petition to modify.

Mother’s attorney subsequently withdrew as counsel for Mother, and Mother retained

another attorney, who filed a response in opposition to Father’s petition to modify the

parenting plan. Mother denied that Father was entitled to any relief and requested that the

court award her attorney’s fees and discretionary costs for defending against the petition.

The parties began the process of discovery, and Father’s discovery deposition was taken, at

which he initially insisted that he had been clean and sober for several months with no lapses

in his recovery. However, Mother had previously hired a private investigator to investigate

Father’s activities, and based upon the results of that investigation, her attorney questioned

Father at his deposition about his frequent use of the inhalant nitrous oxide. Father then

admitted to purchasing and inhaling nitrous oxide multiple times a day.

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Less than one month later, on February 12, 2010, an order was entered by the trial

court which stated that Father desired to dismiss his petition to modify the parenting plan

without prejudice. However, the order provided that the issue of attorney’s fees was reserved

and not dismissed by the order. Mother then filed a motion for attorney’s fees pursuant to

Tennessee Code Annotated section 36-5-103(c), and she attached to her motion the affidavit

of her current attorney and his billing records, in addition to the affidavit of her former

attorney and her billing records. Mother’s current attorney’s affidavit stated that he and

attorneys at his firm had billed 95.8 hours on Mother’s case through February 7, 2010, with

attorney’s fees totaling $26,202.50. Mother estimated in her motion that she would incur an

additional $4,000 in attorney’s fees by the date of the hearing on her motion. The affidavit

and billing records from her previous attorney listed 26.3 hours billed and $8,651 in

attorney’s fees and expenses that Mother had incurred dating back to August of 2009. In

sum, Mother claimed that she had incurred over $38,000 in attorney’s fees, and she asked

that Father be ordered to pay the full amount of the fees she incurred.

Father filed a response to Mother’s motion for attorney’s fees, in which he argued that

Mother was not entitled to attorney’s fees pursuant to Tennessee Code Annotated section 36-

5-103(c) because she was not a “prevailing party” due to the fact that he voluntarily

dismissed his petition. He also argued that the billing entries submitted by Mother’s

attorneys reflected charges that were not attributable to the petition to modify. Father

submitted the affidavit of another attorney who practices in the area of domestic relations

law, who stated that he had reviewed Mother’s motion and supporting documentation, and

that it was his opinion that only some of the billing entries were related to the petition to

modify, while others were related to other issues in the case. The attorney attached to his

affidavit a copy of the billing entries at issue with a star written beside the entries which he

deemed relevant to the petition to modify.

The trial court held a hearing on the motion for attorney’s fees, at which it heard

arguments of counsel. However, the court did not hear testimony or receive evidence at the

hearing, as Father had not requested an evidentiary hearing. Counsel for Father argued at the

hearing that only about $9,900 of Mother’s attorney’s fees could be traced to the petition to

modify based on the billing records submitted. Mother’s counsel continued to argue that

Mother should be awarded the total amount of fees she incurred, which exceeded $38,000.

The trial court ultimately awarded Mother $20,000 in attorney’s fees, and Father timely filed

a notice of appeal.

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II. I SSUES P RESENTED

On appeal, Father presents the following issues, slightly restated, for review:

1. Whether the trial court erred in awarding attorney’s fees to Mother when the petition

to modify was voluntarily dismissed by Father and did not result in a final

adjudication; and

2. Whether the trial court abused its discretion by awarding an arbitrary and

unreasonable amount of attorney’s fees that was not supported by the record.

Both Father and Mother have requested an award of attorney’s fees incurred on appeal. For

the following reasons, we vacate the award of attorney’s fees and remand for further

proceedings consistent with this opinion.

III. S TANDARD OF R EVIEW

The decision to award attorney fees and the amount of fees awarded are matters

resting within the sound discretion of the trial court. Melvin v. Johnson-Melvin, No.

M2004-02106-COA-R3-CV, 2006 WL 1132042, at *9 (Tenn. Ct. App. Apr. 27, 2006). Our

Supreme Court recently summarized the standard of review applicable to a trial court’s

decision regarding a reasonable attorney’s fee as follows:

The trial court’s determination of a reasonable attorney’s fee is “a

subjective judgment based on evidence and the experience of the trier of

facts,” United Med. Corp. of Tenn., Inc. v. Hohenwald Bank & Trust Co., 703

S.W.2d 133, 137 (Tenn. 1986), and Tennessee has “no fixed mathematical

rule” for determining what a reasonable fee is. Killingsworth v. Ted Russell

Ford, Inc., 104 S.W.3d 530, 534 (Tenn. Ct. App. 2002). Accordingly, a

determination of attorney’s fees is within the discretion of the trial court and

will be upheld unless the trial court abuses its discretion. Kline v. Eyrich, 69

S.W.3d 197, 203 (Tenn. 2002); Shamblin v. Sylvester, 304 S.W.3d 320, 331

(Tenn. Ct. App. 2009). We presume that the trial court’s discretionary

decision is correct, and we consider the evidence in the light most favorable

to the decision. Henderson v. SAIA, Inc., 318 S.W.3d 328, 335 (Tenn. 2010);

Keisling v. Keisling, 196 S.W.3d 703, 726 (Tenn. Ct. App. 2005). The abuse

of discretion standard does not allow the appellate court to substitute its

judgment for that of the trial court, Williams v. Baptist Mem'l Hosp., 193

S.W.3d 545, 551 (Tenn. 2006); Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927

(Tenn. 1998), and we will find an abuse of discretion only if the court “applied

incorrect legal standards, reached an illogical conclusion, based its decision on

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a clearly erroneous assessment of the evidence, or employ[ed] reasoning that

causes an injustice to the complaining party.” Konvalinka v.

Chattanooga–Hamilton Cnty. Hosp. Auth., 249 S.W.3d 346, 358 (Tenn. 2008);

see also Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010).

Wright ex rel. Wright v. Wright, No. M2008-01181-SC-R11-CV, --- S.W.3d ---, 2011 WL

1136245, at *7 (Tenn. Mar. 29, 2011). “Unless it ‘affirmatively appears that the trial court’s

decision was against logic or reasoning, and caused an injustice or injury to the party

complaining,’ the trial court’s exercise of discretion will not be reversed on appeal.” Pace

v. Pace, No. M2009-01037-COA-R3-CV, 2010 WL 1687740, at *12 (Tenn. Ct. App. W.S.

Apr. 26, 2010) (quoting Marcus v. Marcus, 993 S.W.2d 596, 601 (Tenn. 1999)).

IV. D ISCUSSION

A. Authority to Award Attorney’s Fees

“In Tennessee, courts follow the American Rule, which provides that litigants must

pay their own attorney’s fees unless there is a statute or contractual provision providing

otherwise.” Taylor v. Fezell, 158 S.W.3d 352, 359 (Tenn. 2005) (citing State v. Brown &

Williamson Tobacco Corp., 18 S.W.3d 186, 194 (Tenn. 2000)). Tennessee Code Annotated

section 36-5-103(c) provides, in relevant part:

(c) . . . [T]he spouse or other person to whom the custody of the child, or

children, is awarded may recover from the other spouse reasonable attorney

fees incurred in enforcing any decree for alimony and/or child support, or in

regard to any suit or action concerning the adjudication of the custody or the

change of custody of any child, or children, of the parties, both upon the

original divorce hearing and at any subsequent hearing, which fees may be

fixed and allowed by the court, before whom such action or proceeding is

pending, in the discretion of such court.

Thus, “[i]n cases involving the custody and support of children, it has long been the rule in

this State that counsel fees incurred on behalf of minors may be recovered when shown to

be reasonable and appropriate.” Taylor, 158 S.W.3d at 359 (quotation omitted). There is no

absolute right to such fees, but “‘their award in custody and support proceedings is familiar

and almost commonplace.’” Id. (quoting Deas v. Deas, 774 S.W.2d 167, 170 (Tenn. 1989)).

Tennessee Code Annotated section 36-5-103(c) “has been interpreted as allowing for

the award of attorney’s fees to a party defending an action to change a prior order on the

theory that the defending party is enforcing the prior order.” Hansen v. Hansen, No.

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M2008-02378-COA-R3-CV, 2009 WL 3230984, at *3 (Tenn. Ct. App. Oct. 7, 2009) (citing

Shofner v. Shofner, 232 S.W.3d 36, 40 (Tenn. Ct. App. 2007); Scofield v. Scofield, No.

M2006-00350-COA-R3-CV, 2007 WL 624351, at *7 (Tenn. Ct. App. Feb. 28, 2007)).

Accordingly, “[a] trial court has the authority to award a parent his or her attorney’s fees

incurred in the defense of a petition to modify custody provisions of a final decree of

divorce.” Maynor v. Nelson, No. M2005-02362-COA-R3-CV, 2006 WL 3421288, at *5

(Tenn. Ct. App. Nov. 27, 2006) (citing Tenn. Code Ann. § 36-5-103(c)). An award of fees

is allowed in this situation on the theory that the defending custodial party is enforcing the

prior order for the benefit of the children. Wilson v. Baines, No. M2009-00249-COA-R3-

CV, 2009 WL 4175862, at *6 (Tenn. Ct. App. Nov. 25, 2009).

Here, Father argues that the aforementioned statute is inapplicable because it

references suits concerning “custody,” and Father only sought an increase in his parenting

time as opposed to a change in the designation of primary residential parent.1 We reject

Father’s narrow reading of the statute. Tennessee Code Annotated section 36-5-103(c) has

previously been applied in cases involving petitions to modify visitation. See, e.g.,

Demonbreun v. Demonbreun, No. M2004-02105-COA-R3-CV, 2005 WL 3555545, at *8

(Tenn. Ct. App. E.S. Dec. 28, 2005) (noting that an award was authorized under the statute

because visitation is “an obvious aspect of custody”); D v. K, 917 S.W.2d 682, 686 (Tenn.

Ct. App. 1995) (noting that visitation is “an adjunct of custody”); see also Taylor, 158

S.W.3d at 360 (finding an award appropriate where the father “sought to have his parenting

time altered”). As such, the trial court did not lack the authority to make an award pursuant

to Tennessee Code Annotated section 36-5-103(c) simply because Father sought an increase

in parenting time rather than a change in the primary residential parent designation.

Father also argues that the aforementioned statute does not authorize an award of

attorney’s fees in this case because he voluntarily dismissed his petition prior to a final

adjudication by the trial court. Father claims that there must be a “change or award of child

custody” before attorney’s fees can be awarded. Again, we find no support for Father’s

narrow interpretation of the statute. “The custodial spouse in a divorce case ‘may recover

from the other spouse reasonable attorney’s fees incurred’ in any proceeding involving the

establishment or enforcement of that obligation.” Melvin, 2006 WL 1132042, at *9 (citing

Tenn. Code Ann. § 36-5-103). The relevant statutory language provides that “the spouse or

other person to whom the custody of the child, or children, is awarded may recover from the

other spouse reasonable attorney fees incurred in enforcing any decree for alimony and/or

child support, or in regard to any suit or action concerning the adjudication of the custody

or the change of custody of any child, or children, of the parties, both upon the original

divorce hearing and at any subsequent hearing[.]” Tenn. Code Ann. § 36-5-103(c) (emphasis

1

Father does not raise this precise argument in his brief, but it was presented at oral argument.

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added). Here, Father’s petition and proposed parenting plan sought to have his child support

decreased and his parenting time increased. By opposing Father’s petition, Mother was

attempting to enforce the court’s previous child support order, in a suit or action that also

concerned the adjudication of custody.

The parties have not cited any cases in which a court has considered whether it is

appropriate to award attorney’s fees pursuant to section 36-5-103(c) when a petition for

custody or visitation is voluntarily dismissed prior to a hearing, and we have not encountered

any in our research. However, in Hansen v. Hansen, No. M2008-02378-COA-R3-CV, 2009

WL 3230984, at *3 (Tenn. Ct. App. Oct. 7, 2009), a father voluntarily dismissed his petition

to modify child support at the beginning of the hearing on the matter, and this Court held that

it was appropriate for the trial court to award the mother her attorney’s fees “[i]n light of the

fact that Mother’s counsel had to prepare for the hearing as if the issue of support would be

litigated.” Similarly, in the case before us, we find no abuse of discretion in the trial court’s

decision to award Mother her attorney’s fees that were incurred in preparation of litigating

the issues raised in Father’s petition. One of the benefits of section 36-5-103(c) is that

awarding attorney’s fees to the custodial parent “discourages vexatious petitions by the

noncustodial parent.” Janet Leach Richards, Richards on Tennessee Family Law, § 14-

3(a)(3) (2d ed. 2004). That purpose would not be served if the other spouse could simply

dismiss his or her petition prior to the hearing in order to avoid payment of the custodial

spouse’s attorney’s fees.

In sum, we find no abuse of the trial court’s discretion in its decision to award Mother

her attorney’s fees, as such an award was authorized by Tennessee Code Annotated section

36-5-103(c).

B. The Amount of Fees Awarded

Next, Father challenges the amount of attorney’s fees awarded to Mother as arbitrary

and unreasonable. As previously discussed, Mother submitted the affidavit of her current

attorney and his billing records, in addition to the affidavit of her former attorney and her

billing records, in support of her request for the trial court to award her over $38,000 in

attorney’s fees. The billing records were 33 pages in length, and they contained what Mother

estimates to be 425 billing entries,2 calculated to the tenth of an hour, regarding the time that

Mother’s attorneys had devoted to her case since August of 2009. (Father’s petition to

modify was filed on August 3, 2009.) In response, Father submitted the affidavit of another

domestic relations attorney who opined that some of the billing entries submitted by Mother’s

2

We have not counted the individual billing entries but have no reason to doubt Mother’s estimation

as to the number of entries.

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attorneys were not related to the petition to modify. He conceded that some of the entries

were relevant, particularly where the billing entry specifically mentioned the petition to

modify. Some other entries were clearly related to the parties’ petitions for contempt, which

had been dismissed by consent, and the attorney marked those entries as irrelevant. The basis

for many of the entries was not readily apparent, however, and the attorney deemed those

entries irrelevant to the petition to modify. For example, general entries such as “Telephone

call to client regarding meeting” or “Telephone call with client concerning history of

litigation, conduct of ex-husband, and issues concerning supervision of parenting time” were

marked as irrelevant and not included in Father’s calculation of awardable attorney’s fees.

In short, Father argued that the billing entries submitted only proved that about $9,900 of the

claimed amount was related to defending against the petition to modify. The trial court

ultimately awarded Mother $20,000 in attorney’s fees, although it did not provide an

explanation as to how it reached that figure. On appeal, Father argues that the $20,000 award

has “no logical basis in the record” and constitutes “a random figure based on nothing before

the Court.” As such, Father claims that the $20,000 award is arbitrary and must be reversed.

The Eastern Section of this Court considered a similar argument in First Peoples

Bank of Tennessee v. Hill, 340 S.W.3d 398, 410 (Tenn. Ct. App. 2010), after a trial court

simply awarded a certain amount of attorney’s fees without discussing either the amount of

the fees or their reasonableness in its memorandum opinion. When faced with the task of

reviewing such an award on appeal, the Court explained:

Normally, this court will afford the trial judge who has handled the

pre-trial proceedings and presided over the trial considerable discretion in

determining a reasonable attorney's fee. Jerry T. Beech Concrete Contractor,

Inc. v. Larry Powell Builders, Inc., No. M2001-02709-COA-R3-CV, 2003 WL

726955 at *3 (Tenn. Ct. App. M.S., filed March 4, 2003). When the trial court

has exercised its discretion in light of the appropriate factors and found the fee

to be reasonable, we simply review for abuse of discretion. Id. Where,

however, there is no finding that the fee is reasonable, and no way to ascertain

whether the court made the award in light of the appropriate factors, there is

no way for us to accord the normal deference to the trial court.

. . . Where a trial court awards a fee, but there is nothing in the record

to indicate that the trial court actually evaluated the amount of the fee to see

if it is reasonable in light of the appropriate factors, the correct approach is to

vacate the award and “remand [the] case to the trial court for a new

determination of an attorney’s fee award under [Supreme Court Rule 8, RPC

1.8] and the applicable case law.” Ferguson Harbour Inc. v. Flash Market,

Inc., 124 S.W.3d 541, 553 (Tenn. Ct. App. 2003). That is exactly the situation

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before us. Accordingly, we will vacate the award of attorney’s fees and, rather

than try to make a determination in the first instance, remand to the trial court

for determination of a reasonable fee. We express no opinion as to whether

the fees sought by the Bank . . . are reasonable or not.

Id. In the case before us, the trial court’s order awarding $20,000 in attorney’s fees simply

states the amount of fees being awarded without mentioning their reasonableness, and there

is no way to ascertain whether the court made the award in light of the appropriate factors.3

Based upon the reasoning expressed in Hill, we vacate the trial court’s award and remand for

such other proceedings as are necessary and consistent with this opinion, including a

determination of a reasonable attorney’s fee and findings that make appellate review of the

award possible.

C. Fees on Appeal

Both parties have requested an award of their attorney fees on appeal. Tennessee

Code Annotated section 36-5-103(c) also applies to awards on appeal and vests in this Court

the discretionary authority to make such an award in proper cases. Pippin v. Pippin, 277

S.W.3d 398, 407 (Tenn. Ct. App. 2008); see also Shofner v. Shofner, 232 S.W.3d 36, 41

(Tenn. Ct. App. 2007). We find it equitable to decline both parties’ requests for attorney’s

fees on appeal.

V. C ONCLUSION

For the aforementioned reasons, we vacate the trial court’s award of attorney’s fees

and remand for further proceedings consistent with this opinion. Costs of this appeal are

taxed equally to the appellant, Alan Bradley Pounders, and the appellee, Tiffany White

Pounders, for which execution may issue if necessary.

_________________________________

ALAN E. HIGHERS, P.J., W.S.

3

At the hearing on the motion for attorney’s fees, no one mentioned the applicable factors for

determining a reasonable fee. The trial judge simply stated at the conclusion of the parties’ arguments, “I’m

going to do this. I’m going to award you an attorney fee, [counsel], of $20,000.”

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