638 S.W.3d 624
Tenn. Ct. App.2020Background
- Long, contentious post-divorce enforcement dispute: trial court awarded Wife temporary alimony ($3,000/month) and a retroactive alimony judgment; Husband stopped paying and concealed/shifted assets (wire transfers, trust conveyance) and filed bankruptcy.
- Wife pursued garnishments and moved to lift the bankruptcy stay; Husband’s bankruptcy was dismissed with a four-year bar for bad faith.
- Wife filed contempt (criminal and civil) and sought compensatory damages, attorney fees, and expert (accountant) fees for work tracing Husband’s assets.
- Trial court found Husband in criminal contempt on 12 counts, converted those findings to civil contempt by agreement, and awarded Wife $240,507.70 for attorney and accounting fees (including fees incurred in the federal bankruptcy proceeding).
- Husband appealed; Court of Appeals affirmed the award of fees and expert costs, remanded limited issues (a small omitted invoice and discretionary-cost determinations), and awarded Wife appellate attorney fees to be fixed on remand.
Issues
| Issue | Plaintiff's Argument (Wife) | Defendant's Argument (Parker) | Held |
|---|---|---|---|
| 1. May a Tennessee court award attorney fees under Tenn. Code Ann. §36-5-103(c) for work performed in a federal bankruptcy proceeding that arose from enforcement of state alimony? | Fees in bankruptcy were incurred to enforce Wife’s state alimony award; §36-5-103(c) authorizes fees for enforcing decrees even if the work occurs in another forum. | §36-5-103(c) does not extend to federal bankruptcy proceedings; bankruptcy is a separate forum and not the proper place for a state-fee award. | Affirmed: state court may award fees under §36-5-103(c) for bankruptcy work when the bankruptcy was used to frustrate enforcement of the state alimony decree. |
| 2. May expert/accounting fees be awarded as compensatory damages for civil contempt where contempt involved failure to pay alimony and an insurance-proof omission (and some work related to the bankruptcy)? | Mr. Peterson’s tracing work was necessary to uncover concealed assets and thus is compensatory damages caused by Husband’s civil contempt. | Contempt was omission-based and/or criminal during much of the proceedings; criminal contempt can’t support attorney-fee damages and omissions statutes didn’t permit damages. | Affirmed: post-2011 statutory amendments permit damages for omission-based contempt; expert/accounting fees may be awarded as compensatory damages for civil contempt. The accounting fees were reasonable and tied to tracing concealed assets. |
| 3. Did the trial court abuse discretion in awarding discretionary costs (Rule 54.04) or in awarding fees that were untimely/duplicative? | Wife asserted she was entitled to discretionary costs and some out-of-pocket expenses; trial court intended to award them. | Motion for discretionary costs was untimely; many requested items fall outside Rule 54.04(2) or duplicate other awards. | No definitive ruling by appellate court; remanded. The appellate court could not determine whether the trial court intended to award discretionary costs or whether an item (a second Konvalinka invoice) was inadvertently omitted, so those issues go back to the trial court for resolution. |
| 4. Should appellate attorney fees be awarded? | Wife sought appellate fees because Husband’s conduct forced continued litigation and she remains disadvantaged. | Husband sought fees as well and cited his hardship. | Wife awarded appellate fees. Husband’s request denied. Trial court to fix a reasonable appellate fee on remand. |
Key Cases Cited
- Eberbach v. Eberbach, 535 S.W.3d 467 (Tenn. 2017) (statute-based attorney-fee awards: initial right is a question of law; amount and whether to award are discretionary)
- Shofner v. Shofner, 232 S.W.3d 36 (Tenn. Ct. App. 2007) (fees under §36-5-103(c) may be awarded when a party pursues relief in a different forum to challenge an existing custody/support decree)
- Lovlace v. Copley, 418 S.W.3d 1 (Tenn. 2013) (civil contempt damages and availability of compensatory remedies discussed)
- Khan v. Regions Bank, 584 S.W.3d 418 (Tenn. Ct. App. 2019) (statutory construction governs whether a trial court may award fees for related bankruptcy proceedings)
- Overnite Transp. Co. v. Teamsters Local Union No. 480, 172 S.W.3d 507 (Tenn. 2005) (civil contempt damages are compensatory and intended to repair actual loss)