*1 C.T., Jason NATHANIEL In re and Emerald S.T.
J.T. Tennessee, Appeals
Court Section, at Knoxville.
Eastern 10, 2013 Session.
Dec. 17, 2014.
March Appeal to for Permission Application J. Elizabeth- Kathryn Dugger-Edwards, by Supreme Sept. Denied Court Tennessee, ton, appellant, the Ashlie T. 18, 2014. Taylor, City, John S. Johnson Tennes-
see, T. appellant, for the Jason Cook, S. Jason A. Creech and Suzanne Tennessee, City, for the appel- Johnson lees, Angela W. and David W. OPINION J., SWINEY, D. MICHAEL delivered Court, in opinion of the which JOHN McCLARTY, J., joined. W. CHARLES SUSANO, JR., C.J., concurring filed a D. opinion. attorney’s appeal
This concerns fees. (“Petitioners”) filed peti- Two relatives a parental tion to terminate the (“Respondents”) to parents (“the Children”).1 minor three children Chancery for Washington Court (“the Court”), County Trial Supreme Tennessee Rule pointed represent action. termination After parties long, process, drawn out legal dispute through medi- solved agreement. ated The Children remained Respondents. Respondents with filed fees, arguing motion for should be awarded 36-5-103(c). under Tenn.Code Trial Court held that Tenn.Code Ann. under inapplicable was these Therefore, rights. identify an we will not appeal 1. While this is about rental underlying leading matter family surnames of members. pa- attempted was an termination *2 Respondents’ and denied and The circumstances costs. Court finds this is attorney’s Respondents custody motion for fees. trigger case that would the dis- affirm the Trial appeal. We Court. cretion of the attorney Court to award 5—103(c); fees under T.C.A. ac- 36—
Background
cordingly, the
by
cases cited
the Mov-
In
applicable.
June
the Children entered into
ants are not
To the con-
temporary custody
by
trary,
of their aunt
the Court finds that the case law
In
agreed order.
December
Peti-
by
original
recited
in
Petitioners
petition
tioners filed a
paren-
sponse
Fees,
terminate
to the
Attorney
Motion for
tal
Respondents to the Children.
Bryant
Bryant[J
v.
In March the Trial Court entered denying Respondents’ an order motion for Discussion stated, fees. The Trial Court in such, Though exactly not stated as part: appeal: raise one issue on The that Court finds this action was Trial in denying whether the Court erred originally commenced as a termination request under Tenn.Code adoption and case un- fees. der 36-1-101 et seq. T.C.A stat- part, For their Petitioners contend Movants, ute recited T.C.A. frivolous, they request this 5—103(c), in support of their Mo- fees and costs on that tion for Attorney exclusively Fees deals basis. with custody support cases wherein record, there is upon discretion accorded to a trial Our review is de novo in Judge awarding attorney accompanied by presumption such of correct- purpose Sup.Ct. pointed 2. The stated pro- of Tenn. Rule 13 counsel ...” which includes a provide appointment ceeding rights. is to “for the counsel to terminate proceedings indigent party provides ap- in all in which an Rule also "for statutory right pointed non-capital has a or constitutional cases....” justification findings of fact of the trial which the of the award ness of case, court, of the evi at In the latter preponderance unless the issue. this Court 13(d); R.App. P. reviews the decision of the trial court is otherwise. dence (Tenn. 721, 727 Bogan, any v. the same other Bogan as issue-with 2001). conclusions of law are A trial court’s presumption no of correctness. State *3 pre review with no subject to a de novo Dep’t Shepherd, Human Servs. v. of Constructors, S. sumption 144019, of correctness. (Tenn.App. at *1 Nov. 1989 WL Educ., County Loudon Bd. 58 29,1989). Inc. v. of (Tenn.2001). 706, S.W.3d 710 prevailing litigant right A had no at of payment whether the Trial common law to the its We first address State, Mooneys or v. 10 denying Respondents’ erred in fees costs. (2 Yer.) 578, (1831); § Ann. under Tenn.Code 36-5- 579 McCorm quest (Tenn. 103(c) Smith, 304, attorney’s fees. Tenn.Code v. 668 306 ic S.W.2d in provides, § Ann. 36-5-103 relevant App.1984). The common law rule can be contract, part: in the modified but absence such, (c) authority of the of the court to plaintiff spouse may The recover attorney statutorily award fees must be spouse, the and the from defendant Standard, grounded. Pullman Inc. v. person or other to whom the spouse (Tenn. 336, child, children, Corp., or Abex 693 S.W.2d 338 custody of 1985); Fletcher, may recover from the other Person v. 582 S.W.2d awarded 765, Thus, attorney (Tenn.App.1979). reasonable fees in- 767 in the spouse statute, contract, enforcing any curred in decree ali- absence of a or other support, child in mony regard compelling equitable ground, or a trial and/or any concerning compel losing party suit or action the ad- court cannot a to custody or judication change pay prevailing party’s legal expenses. of child, children, Thomas, any custody of or of State ex rel. Orr v. (Tenn.1979). upon original both 607 parties, di- hearing any subsequent vorce and at Respondent Neither nor the trial may fees be hearing, which fixed and point any court were able to [sic] court, by the before allowed whom such statutory support for the award of attor- proceeding pending, action or in the ney type proceeding fees in the before court. discretion of such 36-5-103(e) us. (Supp.1998) T.C.A. 36-5-103(c) (2010). §Ann. Tenn.Code allows the trial court to award custody in expenses support pro- and Bryant Bryant, In v. we elaborated ceedings. proceeding before inus upon proper application of Tenn.Code judice the case sub concerns termination 36-5-103(c), stating: parental rights adoption. There regard attorney With to the issue of statutory authority provides is no which generally we are not inclined to attorney that the trial court can award interfere with decisions at concerning proceeding. fees in such a The trial torney in awarding cases where awarding attorney in court erred fees to fees is within the discretion of the trial Respondent, request and his for attor- Threadgill court. v. Threadgill, 740 ney fees for this is denied. (Tenn.App.1987). S.W.2d How ever, this deference only Bryant Bryant, extends v. No. 01A01-9806-CV- 00337,1999 cases in which the amount *6 (Tenn.Ct.App. of the fee WL at 1, 1999), award is in challenged, appl. perm, appeal to cases Feb. no filed. Respondents argue custody that Tenn.Code Ann. as a case under Tenn.Code Ann. 5—103(c). applies such that Such an interpretation col- lapses very though should receive fees even real distinctions between attempts to terminate appointed already received more modifiable matters of care and con- work. find, Court, trol. We as did the Trial assert, among other things, correctly this case is characterized as a attempted that while this case involved an termination case and not parental rights, may termination of it also custody case. We also observe that this accurately custody be characterized as a is a case where one is hard-pressed to purposes case for of Tenn.Code Ann. 36- identify a “prevailing” party. dispute 5-103(c). Additionally, Respondents as- ended agreement. mediated sert that Respondents prevailed as the *4 Moreover, them, ultimately stayed Children with our thus research of case law on § TenmCode Ann. making yielded an award of has appro- fees nothing that support would an priate award of Respondents under the statute. attorney’s fees in circumstances such as also assert that their counsel should those of the instant case. A may court not compensation ceive commensurate with award simply because coun- winding, their efforts in this multi-year sel have worked hard and obtained a fa- case. vorable result for their clients—as noted part, argue For their Petitioners that Bryant opinion above, referenced un- Respondents put forward no basis der Tennessee must be some law.there attorney compensation beyond that com- specific legal basis for an award of attor- pensation already their counsel received ney’s fees. appointed work. Petitioners assert view, In our a critical feature of this case that correctly the Trial Court Re- denied is the nature of how counsel spondents attorney’s fees because represent came to Respondents. Counsel court-appointed were attorneys under pro did not work expectation bono with an Tenn. Sup.Ct. According Rule 13. Peti- of seeking attorney’s losing fees from the tioners, there is no basis for award- Rather, if party prevailed. their clients ing Respondents attorney’s fees under counsel were appointed represent Re- 5—103(c). Tenn.Code Ann. agree We 36— spondents pursuant to Tenn. Rule Sup.Ct. with Petitioners. appointment 13. This defined the bound- that, Initially we observe origi- while the lawyers’ aries of the pro- as order, nal order in this case was a consent above, vided for Rule 13. As discussed proceeded parental case to become a we are aware of no statutory prece- or rights termination case and it was at that dential basis for an award to time appointed that the Trial Court Re- additional fees under Tenn. spondents counsel Sup. 5—103(c) Code in this termi- Custody Ct. Rule 13. an issue in one nation of case where form every or another in termination of pointed already have been com- parental rights case. This does not mean pensated work. We every that termination of rights' depart Bryant. see no reason to from We may case also accurately be characterized affirm the judgment of the Trial Court.3 arguments against 3. Petitioners make other address them to decide case. this attorney's an award of but we need not 248 enough is broad to en- final we ad Ann. 36-5-103 issue
The second biological between two compass dispute regarding issue Petitioners’ dress “ persons two third parents friv on one side and is frivolous. ‘A appeal whether this on the other. As I merit,’ with no custodial that is ‘devoid of is one appeal olous 36-5-103, wording only it parse the prospect little there is or one in which ” spouses or a pertains dispute to a between succeed.’ Morton v. can ever appeal] [an (Tenn.Ct. “spouse” and an “other Morton, dispute between 888 child, custody of the person to whom the Bd. Industrial Dev. App.2005) (quoting children, Hancock, this case or is awarded.” Since 901 City Tullahoma v. factual present does not either of these Ex (Tenn.Ct.App.1995)). S.W.2d scenarios, hold, I would as an additional discretion, we decline to hold ercising our decision, that basis for' the Court’s appeal frivolous. this simply appli- of 36-5-103 is language Conclusion cable to these facts. See Brewster v. Gal- E2011-01455-COA-R3-CV, loway, af- of the Trial Court is judgment (Tenn.Ct.App.E.S., *12 WL 2849428 at firmed, remanded to the and this cause is 2012) (Susano, J., July concur- filed be- of the costs Trial Court for collection ring). are assessed low. The costs on T. Ja-
against the Ashlie Appellants, *5 majority opinion. I concur T., any. if surety, son and their SUSANO, JR., CHARLES D. Chief concurring.
Judge, completely majority opin-
I in the concur that I do separately
ion. I write state language
not believe the of Tenn.Code