In Jones v. Smith, et. al., No. W2010-01160-COA-R3-CV, (Tenn. Ct. App. Dec. 12, 2011), the paternal grandparents (hereinafter "GP") filed to intervene in their son's divorce action and requested custody of the two minor children. This case highlights for Tennessee custody attorneys when one may recover fees.
After a twelve-day custody trial, the court dismissed the GPs motion to intervene and named Mother primary residential parent (PRP). The court also held that the GPs had to pay some of Mother's attorney's fees, expert witness fees and discretionary costs under T.C.A. §36-5-103(c) for a total of $66,043.06. GPs appealed.
T.C.A. §36-5-103(c) states as follows:
"The plaintiff spouse may recover from the defendant spouse, and 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, which fees may be fixed and allowed by the court, before whom such action or proceeding is pending, in the discretion of such court."
The subsequent case law states that although such a fee award is not mandatory, it is commonplace.
In their appeal, GPs argued that the statute only allows attorneys fees to be awarded between spouses. However, prior Tennessee case law interpreted the statute to allow courts to award fees against third parties in Toms v. Toms, 98 S.W. 3d 140, 145 (Tenn. 2003). In that case, the Tennessee Supreme Court explained that the spouse obtaining custody may recover fees from a third party intervenor seeking custody.
Secondly, the GPs contended that the Toms decision was erroneous. However, because the Appeals Court is bound by any Supreme Court Rulings, then that issue is moot and the GPs' only relief is review by the Supreme Court. The GPs also argue that Toms only applies where fees for an appeal are awarded. The Court of Appeals found nothing in the Toms case or the statute that would lead to an interpretation that the fees authorized were for appeals only. Accordingly, the case was affirmed and appellate costs were taxed to the Grandparents.