# Kimberly Anne McGrath v. Melissa Powers Hester

> Court of Appeals of Tennessee · April 14, 2021

URL: https://www.frixlaw.com/law-library/cases/4677431

## Case

- **Court:** Court of Appeals of Tennessee
- **Decided:** April 14, 2021
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Chief Judge D. Michael Swiney
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

04/14/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
January 28, 2021 Session

KIMBERLY ANNE MCGRATH v. MELISSA POWERS HESTER

Appeal from the Chancery Court for Wilson County
No. 2018CV261 C. K. Smith, Chancellor
___________________________________

No. M2019-02147-COA-R3-CV
___________________________________

This appeal arises from an action regarding life insurance proceeds. As part of a permanent
parenting plan, both parents were to insure their respective lives for $300,000 until the
child support obligation was completed, with the children named as the sole beneficiaries
to the policies and the other parent named as trustee for the benefit of the children. The
Trial Court granted summary judgment finding that the children had a vested interest in the
life insurance policy but that they were only entitled to the portion of the proceeds
equivalent to the remaining child support obligation. With the defendant’s concession on
appeal that the children had a vested interest in the life insurance proceeds, that a
constructive trust was appropriate, and that the most recent permanent parenting plan was
controlling, the only issues before this Court involved the amount of life insurance
proceeds to which the children were entitled and attorney’s fees. We modify the amount
of the Trial Court’s judgment and hold that the children are entitled to the entire $300,000
life insurance proceeds per the agreed permanent parenting plan. We affirm the Trial
Court’s denial of attorney’s fees. Additionally, we deny the mother’s request for an award
of attorney’s fees incurred on appeal.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed in Part, Modified in Part; Case Remanded

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which THOMAS R.
FRIERSON, II, and KRISTI M. DAVIS, JJ., joined.

Donald Capparella, Kimberly Macdonald, Jacob R. Nemer, and Kristen B. Amonette,
Nashville, Tennessee, for the appellant, Kimberly Anne McGrath.

Amy J. Farrar, Sonya S. Wright, and Amanda Moore, Murfreesboro, Tennessee, for the
appellee, Melissa Powers Hester.
OPINION

Background

Kimberly Anne McGrath (“Mother”) and Brian Wayne Hester (“Father”) were
married in 2002. The parents had two children during the marriage and divorced in 2009.
Father obtained a term life insurance policy for $500,000 in 2005. From 2005 through
2014, Mother was designated as the direct beneficiary of this policy under her former
married name.

At the time of the parents’ divorce, the Davidson County Circuit Court (“Circuit
Court”) entered a divorce decree approving the parents’ agreed permanent parenting plan.
The 2009 permanent parenting plan designated Mother as the primary residential parent
and ordered Father to pay $1,600 per month for child support for their two children. The
2009 permanent parenting plan included the following provision relating to the life
insurance requirement:

The ☐mother ☐father ☒both shall insure his/her own life in the minimum
amount of $300.000.00 by whole life or term insurance. Until the child
support obligation has been completed, each policy shall name the following
as sole irrevocable primary beneficiary: ☐the other parent ☒ the other
parent, as trustee for the benefit of the children, to serve without bond or
accounting, other :Please Type Other Information.

The Circuit Court entered an agreed order in 2010, allowing Mother to relocate with
the children and modifying Father’s child support obligation to $910 per month. The life
insurance provision remained the same. In 2011, Father married Melissa Powers Hester
(“Ms. Hester” or “Defendant”). The parents agreed to modify their permanent parenting
plan again in 2013, and Father’s child support obligation was decreased to $679 per month.
In the 2013 revised plan, the life insurance provision read as follows:

If agreed upon by the parties, the ☐mother ☐father ☒both shall insure
his/her own life in the minimum amount of $300,000.00 by whole life or term
insurance. Until the child support obligation has been completed, each policy
shall name the child/children as sole irrevocable primary beneficiary, with
the other parent as trustee for the benefit of the child(ren), to serve without
bond or accounting.

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In 2014, Father designated his wife, Ms. Hester, as the direct beneficiary of his life
insurance policy. The permanent parenting plan was again modified by the Circuit Court
in 2017 by agreement of Mother and Father. This plan decreased Father’s child support
obligation to $547 per month. The life insurance provision in this plan read as follows:

Both shall insure his/her own life in the minimum amount of $300.000.00 by
whole life or term insurance. Until the child support obligation has been
completed, each policy shall name the child/children as sole irrevocable
primary beneficiary, with the ☒ other parent other ____________, as trustee
for the benefit of the child(ren), to serve without bond or accounting.

Father subsequently died in September 2018 when the children were ages 11 and 13. At
the time of his death, Father maintained the life insurance policy for $500,000 with Ms.
Hester listed as the beneficiary on the policy.

Mother subsequently filed a complaint in the Wilson County Chancery Court (“Trial
Court”), requesting a constructive trust and an emergency temporary restraining order.1
According to Mother’s complaint, the proceeds of Father’s life insurance policy should be
placed into a constructive trust and the life insurance company should be restrained from
paying any proceeds of the life insurance policy to Ms. Hester or any other third party
except the court clerk. The Trial Court entered an emergency temporary restraining order
restraining and enjoining Northwestern Mutual Life Insurance Company “from paying any
proceeds of any life insurance policy insuring the life of [Father], deceased, to [Ms. Hester],
or to any third party other than the Clerk of [the Trial] Court.” An agreed order was later
entered by the Trial Court instructing Northwestern Mutual Life Insurance Company to
deposit the $300,000 disputed amount of the life insurance proceeds with the Trial Court
clerk, with the remaining amount payable to Ms. Hester. Northwestern Mutual Life
Insurance Company subsequently deposited such amount with the Trial Court clerk.

Mother filed a motion for summary judgment, as well as a memorandum of law in
support of her motion, a statement of undisputed material facts, her affidavit, insurance
policy documentation, and copies of the four permanent parenting plans with the respective
court orders approving the plans. According to Mother, no genuine issue of material fact
existed “as to the issue of the imposition of a constructive trust on the life insurance
proceeds of [Father].” According to Mother, Father was required to maintain a life
insurance policy for the children, and he failed to do so. Mother argued that she, as trustee
for the children, had a vested interest in the life insurance proceeds due to the 2017

1
The action initially included Northwestern Mutual Life Insurance Company as a defendant to this action.
Upon the parties’ agreement, Northwestern Mutual Life Insurance Company deposited the life insurance
proceeds at issue with the clerk of the Wilson County Chancery Court, and Mother voluntarily nonsuited
all claims against the insurance company.

-3-
permanent parenting plan that required Father to maintain the children as beneficiaries of
his $300,000 life insurance policy. Mother argued that the Trial Court should enter a
judgment as a matter of law imposing a constructive trust for $300,000 of the life insurance
proceeds and awarding that amount to Mother as trustee for the minor children. As part of
her motion, Mother also requested an award of attorney’s fees and expenses.

Ms. Hester subsequently filed a response to Mother’s summary judgment motion, a
response to Mother’s statement of material facts with additional undisputed facts, an
affidavit by her, case law, Mother’s response to a request for admissions, and affidavits
from Derrick H. Green and Quincy L. Salam, counsel for Father during the proceedings to
revise the parenting plan in 2017. In her response, Ms. Hester argued that an issue of
material fact existed concerning whether Mother and Father were required to maintain a
life insurance policy for the children after the 2013 permanent parenting plan. According
to Ms. Hester, the 2013 permanent parenting plan made the life insurance requirement
optional and Mother and Father had not intended to change the life insurance provision in
the 2017 plan. Ms. Hester further argued that even if Mother and Father were required to
maintain $300,000 life insurance policies as part of the 2017 plan, Mother never complied
with the requirement and had unclean hands. Ms. Hester further argued that Mother did
not meet the elements of a constructive trust, and even if a constructive trust was proper,
the amount should be limited to the portion of the life insurance proceeds necessary to
satisfy Father’s child support obligation. As such, Ms. Hester requested that the Trial Court
deny Mother’s motion for summary judgment.

Mother subsequently filed a reply to Ms. Hester’s response, stating that the 2017
permanent parenting plan was agreed to by Mother and Father and approved by the court
upon its determination that the plan was in the children’s best interest. According to
Mother, the 2017 parenting plan was binding on Father. Mother argued that a constructive
trust was appropriate. In addressing Ms. Hester’s argument concerning Mother’s “unclean
hands,” Mother stated that this action was filed on behalf of the children, who had a vested
right to the life insurance proceeds and with which there were no allegations of
wrongdoing.

Following a hearing during which the Trial Court heard arguments on behalf of the
respective parties, the Trial Court found that no genuine issue of material fact existed and
granted summary judgment in favor of Mother for the amount of Father’s remaining child
support obligation that would be due for the children. In its judgment, the Trial Court
stated as follows in pertinent part:

5. The children’s interest in the life insurance policy became vested when the
Court entered its Order in 2009.

6. The life insurance policy was to insure the child support payments.

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7. The Plaintiff and Father, Brian Hester, attempted to modify the Permanent
Parenting Plan in 2010, 2013, and 2017.

8. The attempted modifications of the vested interest of the children in the
life insurance policy were void because they were an attempt to take the
children’s property without due process of law.

a. No complaint was filed asking the Court to divest the children’s
vested interest in the life insurance policy.

b. No guardian ad litem or attorney ad litem was appointed to protect
the interest of the children.

c. The children were given no opportunity to defend their position in
Court.

d. There was neither a hearing in Court nor a finding by the Court that
it was in the children’s best interest to be divested of their interest in
the life insurance policy.

9. Since the attempted changes in the Permanent Parenting Plan in 2010,
2013, and 2017 are void as to the life insurance policy, the contents of the
changes regarding the life insurance policy is irrelevant and non-binding on
either party.

10. In regard to the life insurance policy only, the provisions of the 2009
Permanent Parenting Plan and Order apply in this case.

11. The Court further finds that there is no just reason for delay in the entry
of Judgment in this matter.

It is therefore ORDERED, ADJUDGED, and DECREED as follows:

1. The Plaintiff is granted a Judgment as a matter of law against Defendant
in an amount equal to the balance of the child support due to the children less
any credits that the Father, Brian Hester, would be entitled to;

2. There is no constructive trust; Defendant, Melissa Powers Hester, did not
acquire the benefits of the life insurance policy by fraud or any other
wrongful conduct;

-5-
Mother timely appealed to this Court.

Discussion

Although not stated exactly as such, Mother raises six issues for our review on
appeal: (1) whether the Trial Court erred by not awarding the children the entire portion
of the $300,000 life insurance proceeds agreed to in the permanent parenting plan, (2)
whether the Trial Court erred by declining to allow the children’s recovery in the form of
a constructive trust with Mother as trustee for the children, (3) whether the legal effect of
the life insurance provision in the four permanent parenting plans remained unchanged, (4)
whether the Trial Court erred by determining the three modifications to the life insurance
provision in subsequent permanent parenting plans to be void, (5) whether the Trial Court
erred by failing to award Mother her attorney’s fees, and (6) whether Mother is entitled to
an award of attorney’s fees on appeal.

For purposes of appeal, Ms. Hester states in her appellate brief that she “concedes
that the children have a vested interest in [Father’s] life insurance policy, that a constructive
trust is appropriate, and that the 2017 Order is controlling.” Therefore, the remaining issues
before this Court for review concern (1) whether the Trial Court erred by declining to award
the children the entire $300,000 of the life insurance policy required by the permanent
parenting plan, (2) whether the Trial Court erred by declining to award Mother her
attorney’s fees, and (3) whether Mother should be awarded her attorney’s fees on appeal.

In this case, the Trial Court granted summary judgment in favor of Mother.
Concerning summary judgment, our Supreme Court has instructed:

Summary judgment is appropriate when “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.” Tenn.
R. Civ. P. 56.04. We review a trial court’s ruling on a motion for summary
judgment de novo, without a presumption of correctness. Bain v. Wells, 936
S.W.2d 618, 622 (Tenn. 1997); see also Abshure v. Methodist Healthcare–
Memphis Hosp., 325 S.W.3d 98, 103 (Tenn. 2010). In doing so, we make a
fresh determination of whether the requirements of Rule 56 of the Tennessee
Rules of Civil Procedure have been satisfied. Estate of Brown, 402 S.W.3d
193, 198 (Tenn. 2013) (citing Hughes v. New Life Dev. Corp., 387 S.W.3d
453, 471 (Tenn. 2012)).

***

-6-
[I]n Tennessee, as in the federal system, when the moving party does not bear
the burden of proof at trial, the moving party may satisfy its burden of
production either (1) by affirmatively negating an essential element of the
nonmoving party’s claim or (2) by demonstrating that the nonmoving party’s
evidence at the summary judgment stage is insufficient to establish the
nonmoving party’s claim or defense. We reiterate that a moving party
seeking summary judgment by attacking the nonmoving party’s evidence
must do more than make a conclusory assertion that summary judgment is
appropriate on this basis. Rather, Tennessee Rule 56.03 requires the moving
party to support its motion with “a separate concise statement of material
facts as to which the moving party contends there is no genuine issue for
trial.” Tenn. R. Civ. P. 56.03. “Each fact is to be set forth in a separate,
numbered paragraph and supported by a specific citation to the record.” Id.
When such a motion is made, any party opposing summary judgment must
file a response to each fact set forth by the movant in the manner provided in
Tennessee Rule 56.03. “[W]hen a motion for summary judgment is made
[and] . . . supported as provided in [Tennessee Rule 56],” to survive summary
judgment, the nonmoving party “may not rest upon the mere allegations or
denials of [its] pleading,” but must respond, and by affidavits or one of the
other means provided in Tennessee Rule 56, “set forth specific facts” at the
summary judgment stage “showing that there is a genuine issue for trial.”
Tenn. R. Civ. P. 56.06. The nonmoving party “must do more than simply
show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S. Ct. 1348. The
nonmoving party must demonstrate the existence of specific facts in the
record which could lead a rational trier of fact to find in favor of the
nonmoving party. If a summary judgment motion is filed before adequate
time for discovery has been provided, the nonmoving party may seek a
continuance to engage in additional discovery as provided in Tennessee Rule
56.07. However, after adequate time for discovery has been provided,
summary judgment should be granted if the nonmoving party’s evidence at
the summary judgment stage is insufficient to establish the existence of a
genuine issue of material fact for trial. Tenn. R. Civ. P. 56.04, 56.06. The
focus is on the evidence the nonmoving party comes forward with at the
summary judgment stage, not on hypothetical evidence that theoretically
could be adduced, despite the passage of discovery deadlines, at a future trial.

Rye v. Women’s Care Cntr. of Memphis, MPLLC, 477 S.W.3d 235, 250, 264-65 (Tenn.
2015).

The issue in this case involves interpretation of a life insurance provision in an
agreed permanent parenting plan. As this Court has held, an agreed parenting plan should

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be interpreted as a binding agreement between the parents. See Pierce v. Pierce, No.
W2017-02447-COA-R3-CV, 2018 WL 6070025, at *7 (Tenn. Ct. App. Nov. 19, 2018);
see also Sharp v. Stevenson, No. W2009-00096-COA-R3-CV, 2010 WL 786006, at *6
(Tenn. Ct. App. Mar. 10, 2010) (“[O]ur holding reflects the intention of the legislature that
parenting plans be interpreted as binding agreements between two parents who, although
divorced, continue in their roles of parents.”). Concerning written agreements, our
Supreme Court has stated:

The interpretation of written agreements . . . is a matter of law that this Court
reviews de novo on the record according no presumption of correctness to
the trial court’s conclusions of law. See Guiliano v. Cleo, Inc., 995 S.W.2d
88, 95 (Tenn. 1999); Union Planters Nat’l Bank v. Am. Home Assurance Co.,
865 S.W.2d 907, 912 (Tenn. Ct. App. 1993). A cardinal rule of contract
interpretation is to ascertain and give effect to the intent of the parties.
Christenberry v. Tipton, 160 S.W.3d 487, 494 (Tenn. 2005). In interpreting
contractual language, courts look to the plain meaning of the words in the
document to ascertain the parties’ intent. Planters Gin Co. v. Fed. Compress
& Warehouse Co., 78 S.W.3d 885, 889-90 (Tenn. 2002). This Court’s initial
task in construing the [written agreement] is to determine whether the
language is ambiguous. Id. at 890. If the language is clear and unambiguous,
the literal meaning controls the outcome of the dispute. Id. If, however, the
words in a contract are susceptible to more than one reasonable
interpretation, the parties’ intent cannot be determined by a literal
interpretation of the language. Id.

Contractual language “is ambiguous only when it is of uncertain
meaning and may fairly be understood in more ways than one.” Farmers-
Peoples Bank v. Clemmer, 519 S.W.2d 801, 805 (Tenn. 1975).

Allstate Ins. Co. v. Watson, 195 S.W.3d 609, 611 (Tenn. 2006).

During this appeal, the parties have agreed that the children had a vested interest in
the proceeds of Father’s life insurance policy and that the 2017 permanent parenting plan
is controlling in this case. We need not address that issue any further. The life insurance
provision in that permanent parenting plan stated as follows:

Both shall insure his/her own life in the minimum amount of $300.000.00 by
whole life or term insurance. Until the child support obligation has been
completed, each policy shall name the child/children as sole irrevocable
primary beneficiary, with the ☒ other parent other ____________, as trustee
for the benefit of the child(ren), to serve without bond or accounting.

-8-
The Trial Court found that the children were not entitled to the entire $300,000 of Father’s
life insurance policy but only the amount sufficient to cover Father’s remaining child
support obligation. However, Mother contends on appeal that the children were entitled to
the entire $300,000 policy. Based on the language in the 2017 permanent parenting plan,
we agree with Mother.

The life insurance provision is clear that the parents were to each keep a $300,000
insurance policy for the children so long as the child support obligation continued.
According to the 2017 plan, the children were to be named as the sole beneficiaries to the
$300,000 life insurance policy with the other parent to be named as the trustee for the
children. Therefore, Mother was to be the trustee for the children’s benefit on Father’s life
insurance policy. Although Ms. Hester’s attorney argued during oral argument that equity
demands the result by the Trial Court limiting recovery of the life insurance proceeds due
to Mother’s noncompliance with the life insurance provision in the plan, we note that the
children are the intended beneficiaries for the policy, not Mother. Mother is only the trustee
for the children’s benefit. The children, as the actual beneficiaries of the policies, should
not be punished for Mother’s noncompliance with this provision.

Additionally, we note that both parents had agreed to insure their respective lives
with a $300,000 life insurance policy to benefit the children “[u]ntil the child support
obligation has been completed.” Mother had an obligation to provide such a life insurance
policy for the children, not just Father. Although Mother had not complied, she was
required by the plan to insure her life with an equal life insurance policy despite her not
having a child support obligation under any permanent parenting plan in the record. If the
life insurance provision was intended to secure only the amount of Father’s child support
obligation, it is unlikely that the same provision of the plan would have required Mother to
have an equivalent life insurance policy in the absence of a child support obligation.

Furthermore, Ms. Hester argues that the total amount of remaining child support
when the initial 2009 permanent parenting plan was entered into totaled close to $300,000.2
However, that amount had not been changed or lowered to correlate to the remaining child
support in any subsequent plan. We note that Father’s child support obligation was $547
per month in the April 2017 permanent parenting plan. When the 2017 plan was developed,
the children were ages 12 and 10. At the time, Father’s remaining child support obligation
would have been substantially less than the agreed upon $300,000 life insurance policy

2
In her response to Mother’s motion for summary judgment, Ms. Hester stated that when the initial
permanent parenting plans were entered into, Father “was looking at a total of $297,600 to be paid as child
support.”

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provision, supporting that the life insurance provision was not meant solely to secure the
remaining child support obligation.3

We make no determination concerning whether the children had a vested right in
the life insurance policy that could not be modified after the initial permanent parenting
plan. Ms. Hester’s concession in this case makes it unnecessary to make such a
determination. Furthermore, we note that our conclusion regarding the amount of life
insurance proceeds to which the children are entitled would be the same whether the 2009
permanent parenting plan or the 2017 permanent parenting plan were controlling. Neither
plan provided that the life insurance benefits were intended to secure only the amount of
the remaining child support obligation. The reference to child support in the provision at
issue only provided a timeframe for which the parents were to continue the life insurance
requirement.

On appeal, Mother argues that the children had a vested interest in the entire
$300,000 life insurance proceeds and cited to our Supreme Court’s decision in Holt v. Holt.
995 S.W.2d 68, 77 (Tenn. 1999) (“[W]e find that the divorce decree creates in [the child]
a vested right to any life insurance policy obtained by the Decedent that satisfies the
mandate in the decree.”). However, Ms. Hester cites to this Court’s opinion in Layton v.
Life USA, No. W1999-02274-COA-R3-CV, 2000 WL 633443 (Tenn. Ct. App. May 12,
2000), as being more persuasive in this case. We find that Layton is distinguishable from
the present case. In Layton, this Court held that the children had a vested interest in the
father’s life insurance proceeds but limited their recovery to the father’s child support
obligation. Id. at 8-11. However, we note that the parents in Layton had not entered into
an agreed permanent parenting plan with a life insurance provision that included a specific
amount of life insurance to which the children were entitled. Id. at *1-2. In response to a
petition filed by the mother in Layton, the trial court entered a consent order requiring the
father to provide proof that the children were his irrevocable beneficiaries on his existing
policy so long as he had a child support obligation for them. Id. at *2. The consent order
entered by the trial court in Layton did not specify an amount of life insurance the father
was required to maintain for the children and stated that it was understood that the father’s
current life insurance may not cover his entire child support obligation. Id. at *2. Unlike
Layton, Mother and Father in the present case had an agreed permanent parenting plan
which included a life insurance provision requiring both parents, not just the parent owing
child support, to each maintain a life insurance policy of $300,000 on their respective lives
for the benefit of the children until the child support obligation was completed.

In this case, we simply hold that the most recent permanent parenting plan, which
the parties agreed on appeal was controlling in this case, does not limit the children’s life

3
Ms. Hester stated in her response to the summary judgment motion that at the time of Father’s death, he
only had a remaining child support obligation of $43,760.

- 10 -
insurance proceeds to only the amount of Father’s outstanding child support obligation. If
the parents intended for the life insurance policy to secure only the child support obligation
still owed at Father’s death, the parties could have easily stated that in the plan. By limiting
the children’s proceeds from the life insurance policy, the Trial Court was reading into the
provision what simply was not there. We must give effect to the literal meaning of the
clear and unambiguous language of the life insurance provision of the parenting plan. The
judgment is modified so that the children are entitled to $300,000 of the life insurance
proceeds as required by the agreed permanent parenting plan.

We next address Mother’s issue concerning whether the Trial Court erred by
declining to award Mother her attorney’s fees. Mother has two theories on which she
claims she should have been awarded attorney’s fees: (1) that such an award of attorney’s
fees was required by Mother and Father’s marital dissolution agreement and (2) that
Tennessee Code Annotated § 36-5-103(c) entitled her to an award of attorney’s fees as the
prevailing party on the motion for summary judgment.

Concerning Mother’s argument that she is entitled to an award of attorney’s fees at
the trial court based on the provision in Mother and Father’s marital dissolution agreement,
we find Mother’s argument to be without merit. Mother and Father were the only parties
to the marital dissolution agreement. Our Supreme Court has held that a contractual
provision allowing the recovery of attorney’s fees resulting from litigation was enforceable
during trial court proceedings as well as on appeal. Eberbach v. Eberbach, 535 S.W.3d
467, 478 (Tenn. 2017). However, this case is distinguishable from Eberbach because
Mother is trying to enforce a provision of her contract with Father against Ms. Hester. Ms.
Hester, the respondent in this action, was not a party to the marital dissolution agreement.
Therefore, Mother was not entitled to an award of attorney’s fees from Ms. Hester in the
Trial Court based on a provision from Mother and Father’s marital dissolution agreement.

Mother further argues that she was entitled to an award of attorney’s fees in the Trial
Court based on Tennessee Code Annotated § 36-5-103(c) (Supp. 2020), which provides as
follows:

A prevailing party may recover reasonable attorney’s fees, which may be
fixed and allowed in the court’s discretion, from the non-prevailing 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.

(Emphasis added.)

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An award of attorney’s fees pursuant to the above statute is discretionary, and we
will not reverse a trial court’s decision concerning attorney’s fees except with an abuse of
that discretion. See Tenn. Code Ann. § 36-5-103(c) (Supp. 2020). We will not substitute
our judgment for that of the Trial Court, and we find no abuse of discretion in the Trial
Court’s decision not to award attorney’s fees to Mother.

As her final issue, Mother has requested an award of attorney’s fees incurred on
appeal. As previously stated, we have determined that Mother is not entitled to an award
of attorney’s fees based on the marital dissolution agreement to which Ms. Hester was not
a party. Furthermore, an award of attorney’s fees based on Tennessee Code Annotated §
36-5-103(c) is at our discretion. See Eberbach, 535 S.W.3d at 477 (“[W]hen appellate
attorney’s fees are requested pursuant to statutes . . . which expressly permit the court to
exercise its discretion, the Court of Appeals should analyze any such request by exercising
its discretion to determine whether an award to the prevailing party is appropriate.”).
During this appeal, Mother raised issues concerning whether the Trial Court erred in the
amount of life insurance proceeds awarded to the children and by declining to award
Mother her attorney’s fees. In light of all relevant considerations, including that Ms. Hester
was partially successful on appeal, we exercise our discretion and decline to award Mother
her attorney’s fees incurred on appeal.

Conclusion

Based on the foregoing, we modify the Trial Court’s judgment and hold that the
children are entitled to $300,000 of the life insurance proceeds. We affirm the Trial Court’s
judgment declining to award Mother her attorney’s fees. We deny Mother’s request for
attorney’s fees incurred during this appeal. This cause is remanded to the Trial Court for
collection of costs assessed below. The costs on appeal are assessed one-half against the
appellant, Kimberly Anne McGrath, and her surety, if any, and one-half against the
appellee, Melissa Powers Hester.

s/ D. Michael Swiney
D. MICHAEL SWINEY, CHIEF JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4677431. Public record. Not legal advice.