Dismissal of Petition May Lead to Payment of Attorneys Fees

July 5, 2013
By The McKellar Law Firm, PLLC on July 5, 2013 9:55 AM |

In the case titled Sparkman v. Sparkman, No. W2012-00405-COA-R3-CV (Tenn. Ct. App. June 27, 2013) Knoxville divorce attorneys learn when it is appropriate for a party to pay another party's attorney's fees relative to parenting plan modifications and what constitutes "reasonably necessary" in regards to out-of-pocket medical expenses for children as provided for in a parenting plan.

Facts: Mother and Father married in 1997 and had two children. The couple divorced in 2009 when the children were ages four and two. Wife was named the primary residential parent with Husband receiving parenting once or twice per week as well as every other weekend.

Three months after the divorce, Mother filed a petition for an emergency suspension of Father's parenting time and an ex parte order of protection (OP) alleging that Father had sexually abused their daughter and potentially their son. The Department of Children's Services (DCS) did an investigation and found Mother's allegations to be unfounded. After a hearing on the matter, the trial court threw out the ex parte OP and dismissed Mother's complaint.

Mother then filed a petition in general sessions court seeking an OP alleging sexual abuse on behalf of her daughter. An ex parte OP was entered; however, later in the proceedings Father was permitted supervised visitation with the children. Mother filed a motion to cease visitation with Father, but the general sessions court found that the allegations of sexual abuse against Father had not been proven. Accordingly, it dismissed Mother's petition. Mother appealed the decision, but later dismissed it.

In October 2009, Mother filed a petition for contempt against Father alleging he had not paid expenses required by their parenting plan. She also sought an award for her attorney's fees. Father filed an answer and counter-petition for contempt against Mother. He alleged Mother was denying him visitation with his children and had made false accusations of sexual abuse against him demonstrating a "severe lack of parental judgment." He averred that Mother's actions constituted a material change in circumstances and asked the court to name him primary residential parent (PRP) of the children. At the time of depositions for the contempt petition, Father abandoned his request to be designated PRP for the children. However, he continued to seek a modification of the parenting plan regarding the requirement for him to pay for extracurricular activities, out-of-pocket medical expenses, and private school expenses. Mother amended her petition for contempt to include additional expenses that she alleged Father had not paid that was covered by the parenting plan. In July 2010 Wife filed a petition to modify the parenting plan seeking to reduce Father's parenting time with the children and increase his child support obligation.

In November 2011 the trial court entered its ruling on the matter finding that Father was in willful civil contempt for his failure to pay $8,218 in private school expenses, $600 in extracurricular activity expenses, $99 in out-of-pocket prescription costs, and $3,462 in uncovered counseling sessions for the children regarding the alleged sexual abuse by Father. Father's request to modify the parenting plan regarding these expenses was denied. Mother was not found in contempt for her alleged withholding of parenting time from Father as the court stated there was no proof "that she did not act in good faith based on the information she had before her." The court modified the parenting plan taking Father's weeknight visitation with the children away from him. The child support payment was recalculated and increased according to both Mother's and Father's increased incomes. Father was relieved of the duty to pay for Mother's Day Out expenses as the children were then in school. Father was also ordered to pay $14,000 of Mother's attorney's fees. Father appealed the trial court's decision.

Analysis: In Father's appeal he asserted the trial court erred in requiring him to pay for counseling for the children regarding Mother's unfounded allegations of sexual abuse and in ordering him to pay $14,000 of Mother's attorney's fees when he withdrew his petition for custody.

Regarding the children's counseling fees, Father argued he should not have to pay for the sexual abuse counseling when the allegations were found to be unfounded. The appellate court reviewed the couple's parenting plan which stipulated that Father would pay for "[u]ncovered reasonable and necessary medical, dental, orthodontic, and optical expenses, which may include but is not limited to, deductibles or co-payments ... and counseling..." Mother argued that the Department of Children's Services (DCS) recommended the counseling for the children and she was following its directive in placing the children in counseling.

Father asserted that Mother fabricated the sexual abuse allegations following a dispute over an income tax refund. The trial court stated, "The Court does not believe that the tax refund and the [s]exual [a]buse allegations are connected ... I believe that the mother told the truth when she said what she said that the child may have said to her." The appellate court found Mother to have followed the proper procedure in regards to sexual abuse allegations; therefore, the counseling for the children recommended by DCS was both reasonable and necessary, as required by the parenting plan.
An award of attorney's fees is within the discretion of the trial court. The trial court's decision on this type of award is upheld in appellate proceedings so long as there is no abuse of the trial court's discretion. In the case at bar, Mother requested attorney's fees in regards to her petition for contempt and petition to modify the parenting plan and late-filed an exhibit containing her attorney's affidavit and itemized billing statement. The attorney showed 79.6 in billable hours and fees and expenses over $21,000.

The trial court's record showed that it awarded Mother her attorney's fees because she was successful in the court proceedings. The trial court stated in a letter attached to its final order that while Father withdrew his petition for custody, done right before trial resulting in Mother's attorney fees. Father argued that the court did not award attorney's fees because Mother was successful in the petition. Instead, he averred the award was because he withdrew his petition. He further explained that Mother left him with no choice but to file the petition for custody due to her allegations of sexual abuse, and he dropped the petition when Mother stopped making her accusations. Mother argued that the award was proper pursuant to Tenn. Code Ann. 36-5-103(c) because she was forced to defend Father's petition for custody and was attempting to enforce the parenting plan already in place.

The appellate court found the trial court to have awarded Mother her attorney's fees, because she was required to initiate the proceedings to enforce the support order of the court and to defend Father's custody petition. It stated that Tenn. Code Ann. ยง 36-5-103(c) has been interpreted to allow "attorney's fees to a party defending an action to change a prior order on the theory that the defending party is enforcing the prior order." Hansen v. Hansen, No. M2008-02378-COA-R3-CV, 2009 WL 3230984, at *3 (Tenn. Ct. App. Oct. 7, 2009) citing Shofner v. Shofner, 232 S.W.3d 36, 40 (Tenn. Ct. App. 2007). It further stated that an award of attorney's fees is appropriate when a party voluntarily dismisses an action prior to a hearing.

Conclusion: The appellate court found the counseling sessions for the children to be reasonably necessary, and found that the trial court did not abuse its discretion in its award of attorney's fees to Mother. The trial court's rulings were affirmed and remanded back to the trial court.