Can you recover attorney fees in post-divorce enforcement action? Eberbach v. Eberbach

Eberbach v. Eberbach, (Tennessee Supreme Court, filed on May 23, 2017).

The Tennessee Supreme Court granted an appeal to determine whether the Court of Appeals could exercise discretion and decline to award appellate attorney fees when the parties’ marital dissolution agreement contained a provision entitling the prevailing party to an award of attorney fees. The husband and wife were parties to a marital dissolution agreement that contained a provision for the award of attorney fees to the prevailing party in any subsequent legal proceeding. Following a post divorce proceeding that resulted in the trial court granting relief and awarding attorney fees to the wife, the husband appealed. The wife also prevailed on appeal and sought appellate attorney fees from the Court of Appeals under a statutory provision and under the parties’ marital dissolution.

The Court of Appeals declined to award the requested fees under the applicable statute. The Tennessee Supreme Court reversed the Court of Appeals judgment and held that the Court of Appeals erroneously failed to separately consider an award of the requested attorney fees under the parties’ marital dissolution agreement.

The Tennessee Supreme Court noted that the Tennessee Courts of Appeals had been inconsistent in their analysis of claims for attorney’s fees in cases in which the claim was based on a contractual provision in a marital dissolution agreement.

However, our courts have been inconsistent in their analysis of claims for
attorney’s fees in cases in which the claim is based on a contractual provision in a MDA
in addition to one or both of these statutory provisions. In such cases, the Court of
Appeals has not uniformly enforced attorney’s fees provisions in MDAs when those
provisions govern attorney’s fees in appellate proceedings. Some prior decisions by the
Court of Appeals have denied an award of attorney’s fees incurred on appeal based upon
an exercise of discretion by the Court of Appeals, even in the face of a controlling
contractual fee provision requiring such an award. See Grisham v. Grisham, No. W2010-
00618-COA-R3-CV, 2011 WL 607377, at *11 (Tenn. Ct. App. Feb. 22, 2011) (holding
that the trial court erred in failing to award wife her reasonable trial court attorney’s fees
pursuant to MDA fee provision, but declining to award appellate attorney’s fees pursuant
to the Court of Appeals’ discretion); Brown v. Brown, No. W2005-00811-COA-R3-CV,
2006 WL 784788, at *6 (Tenn. Ct. App. Mar. 29, 2006) (affirming the trial court’s award
of trial court fees under the parties’ MDA, but equitably denying wife’s request for
appellate fees pursuant to the Court of Appeals’ discretion); Elliott v. Elliott, 149 S.W.3d
77, 88 (Tenn. Ct. App. 2004) (affirming the trial court’s award of fees to wife pursuant to
parties’ MDA fee provision, but denying wife’s request for appellate attorney’s fees);
Dulin v. Dulin, No. W2001-02969-COA-R3-CV, 2003 WL 22071454, at *8, *10 (Tenn.
Ct. App. Sept. 3, 2003) (affirming trial court’s award of attorney’s fees pursuant to MDA,
but equitably declining to award either party attorney’s fees incurred on appeal).
At the same time, in other cases, the Court of Appeals has held that when a MDA
fee provision mandates an award of attorney’s fees to the prevailing party, the Court of
Appeals does not have discretion to deny an award of appellate attorney’s fees. See, e.g.,
Beem v. Beem, No. W2009-00800-COA-R3-CV, 2010 WL 1687782, at *9-10 (Tenn. Ct.
App. Apr. 28, 2010) (affirming trial court’s award of fees pursuant to MDA and holding
that wife was entitled to attorney’s fees on appeal pursuant to the parties’ MDA);
Treadway v. Treadway, No. M2014-00898-COA-R3-CV, 2015 WL 1396652, at *7
(Tenn. Ct. App. Mar. 24, 2015) (awarding appellate attorney’s fees pursuant to the
parties’ MDA); Brinton v. Brinton, No. M2009-02215-COA-R3-CV, 2010 WL 2025473,
at *6 (Tenn. Ct. App. May 19, 2010) (same); Corbin v. Corbin, No. W2008-00437-COAR3-CV,
2009 WL 454134, at *7 (Tenn. Ct. App. Feb. 24, 2009) (same); Waugh v.
Waugh, No. M2006-021540COA-R3-CV, 2007 WL 2200278, at *4 (Tenn. Ct. App. July
30, 2007) (same); Hogan, 1999 WL 1097983, at *4-5 (reversing trial court’s denial of
attorney’s fees, and awarding attorney’s fees to Mother for trial court and appellate level
proceedings pursuant to the parties’ MDA).

Finally, some of our courts have observed that “[a]n award of appellate attorney
fees in Tennessee is within the court’s sound discretion,” Wilkinson v. Wilkinson, No.
W2012-00509-COA-R3-CV, 2013 WL 614708, at *10 (Tenn. Ct. App. Feb. 19, 2013),
but have then gone on to award attorney’s fees on appeal solely on the basis of the
parties’ MDA fee provisions without further discussion, id. at *10 (affirming trial court’s
award of fees and finding that Wife was entitled to recover reasonable appellate
attorney’s fees “[b]ased upon the plain language of the MDA” (citing Archer, 907
S.W.2d at 419) (emphasis supplied)). See also Hanna v. Hanna, No. W2014-02051-
COA-R3-CV, 2015 WL 1951932, at *4 (Tenn. Ct. App. Apr. 30, 2015) (stating its
discretion then awarding fees on appeal based on the parties’ MDA requiring that the
“court shall award reasonable attorney’s fees to the party seeking to enforce [the MDA]”)
(alterations in original); Williams v. Williams, No. M2013-01910-COA-R3-CV, 2015
WL 412985, at *14 (Tenn. Ct. App. Jan. 30, 2015) (affirming the trial court’s award of
fees pursuant to the parties’ MDA, stating its discretion and determining that wife was
entitled to attorney’s fees on appeal pursuant to the parties’ MDA); Dodd v. Dodd, No.
M2011-02147-COA-R3-CV, 2012 WL 3193339, at *6 (Tenn. Ct. App. Aug. 6, 2012)
(holding that Mother was entitled to recover her trial court attorney’s fees pursuant to the
parties’ MDA, but using its discretion and concluding that Mother was justified in
recovering attorney’s fees) (emphasis supplied).

The court holding clarifies the appropriate analysis for appellate courts to utilize in determining whether to award appellate attorneys fees.

Fee requests made pursuant to contractual and statutory authority must be
analyzed separately, though they will often be requested together. In cases in which
parties seek an award of attorney’s fees under statutory authority alone, the statute
governs the award of fees. In such cases, the statute is the recognized exception to the
American Rule and is the basis for the court’s authority to grant fees on appeal. Thus,
when appellate attorney’s fees are requested pursuant to statutes like section 27-1-122
and section 36-5-103(c), 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.

The same is not true with parties to post divorce litigation that have a marital dissolution agreement that contains a mandatory fee award provision.

It necessarily follows that if an agreement is valid and enforceable, it must be
enforced as written regardless of whether the parties are before a trial court or an
appellate court. Accordingly, we hold that the Court of Appeals has no discretion
whether to award attorney’s fees when the parties have a valid and enforceable marital
dissolution agreement which requires an award of reasonable attorney’s fees to a
prevailing or successful party. When such a MDA exists, it is subject to the normal rules
of contractual interpretation and enforcement. If the MDA is determined to be a valid
and enforceable agreement, the terms of the parties’ agreement govern the award of fees,
and the court must enforce the parties’ terms to the extent the agreement demands.

 

https://www.tncourts.gov/courts/supreme-court/opinions/2017/05/23/elizabeth-eberbach-v-christopher-eberbach

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