November 2013 Archives


Recent Case Highlights Importance of Transcripts, Explains When Awards of Attorney Fees are Appropriate

November 26, 2013 by The McKellar Law Firm, PLLC

The recent case of Hunn v. Hunn, No. M2013-00860-COA-R3-CV (Nov, 25, 2013 Tenn. Ct. App.) shows Knoxville divorce attorneys when it is appropriate to award attorneys fees in a divorce action.

Facts

The parties married in 2011 and had two children. The parties attended mediation and reached an agreement. In June 2012, Father filed a Motion to Enforce the Mediated Agreement alleging Mother had refused to follow the terms and would not sign a Marital Dissolution Agreement. Mother responded alleging the mediated agreement was not in the children's best interest and requested a trial. Father then filed a motion asking to lift the restriction against his paramour which was denied and Father was ordered to immediately disclose his phone number and address to Mother. Mother then filed another motion to obtain his address, to compel his compliance and for sanctions and attorneys fees for failing to follow court orders. After a hearing, the court ordered both parties to provide complete contact information about the whereabouts of the minor children at all times and that a violation of that could result in jail time for the parties. Father then filed a Petition for Contempt. A hearing was held on Mother's Complaint for Divorce, Father's Counter-Complaint and the Contempt. The trial court made three findings: 1) the Father did not act in good faith when he entered the mediated agreement 2) Father perjured himself in court regarding where he and the children had been living and his credibility is non-existent 3) that co-parenting will be determined by the court based on statutory factors and not the mediated agreement. The divorce was granted to Mother, who was also granted primary residential parent. The contempt motion was denied. Based upon the "additional attorneys necessary to determine the whereabouts of the children" and otherwise pursue the case, the court awarded Mother her attorneys fees and court reporter fees in addition to mediation costs which totaled $11,000. Father appealed.

Analysis

Until it is signed by a judge, a mediated agreement is a contract. Under contract law, a party may be relieved of the contract if the agreement was "not the result of a good faith negotiation." In the absence of a transcript or statement of the evidence, it is unclear as to the nature of Father's misconduct. However, the Appeals Court presumed there was sufficient evidence to support the finding that Father acted in bad faith. Therefore the trial court's determination is upheld.

Regarding attorneys fees, the trial court has the power to award fees in custody or support proceedings under T.C.A. 36-5-103(c). The award of fees will not be modified unless an abuse of discretion is proven. A abuse of discretion is where a trial court applied an incorrect legal standard, reaches a decision that contravenes logic or uses reasoning that cause s injustice, or the evidence does not support the decision. Here, there is nothing in the record to indicate that the fee might be unreasonable or whether counsel for Father questioned or objected to the fees. Accordingly, there is no way to determine that an abuse of discretion occurred and the trial court is affirmed.

Additionally, because Father failed to file a transcript or statement of the evidence to support his appeal, the appellate attorneys fees are also awarded to Mother with the amount to be determined by the trial court.