Eberbach v. Eberbach

Decision Date23 May 2017
Docket NumberNo. M2014-01811-SC-R11-CV,M2014-01811-SC-R11-CV
Citation535 S.W.3d 467
CourtTennessee Supreme Court
Parties Elizabeth EBERBACH v. Christopher EBERBACH

Rose Palermo, Nashville, Tennessee, for the appellant, Elizabeth Eberbach.

Connie Reguli, Brentwood, Tennessee, for the appellee, Christopher Eberbach.

Unpublished Text Follows End of Unpublished Text

Jeffrey S. Bivins, C.J., delivered the opinion of the court, in which Cornelia A. Clark, Sharon G. Lee, Holly Kirby, and Roger A. Page, JJ., joined.

Jeffrey S. Bivins, C.J.

We granted this appeal to determine whether the Court of Appeals may exercise discretion and decline to award appellate attorney's fees when the marital dissolution agreement at issue contains a provision entitling the prevailing party to an award of such fees. In this case, Husband and Wife were parties to a marital dissolution agreement that was incorporated into their final divorce decree ("the Parties' MDA"). The Parties' MDA contained a provision for the award of attorney's fees to the prevailing party in any subsequent legal proceedings. Following a post-divorce proceeding that resulted in the trial court granting relief and awarding attorney's fees to Wife, Husband appealed. Wife also prevailed on appeal and sought an award of appellate attorney's fees from the Court of Appeals under a statutory provision and under the Parties' MDA. Exercising its discretion, the Court of Appeals declined to award the requested fees under the statute. The Court of Appeals erroneously failed to separately consider an award of the requested fees under the Parties' MDA. Accordingly, we reverse the Court of Appeals' judgment and remand this matter for further proceedings consistent with this Opinion.

Factual and Procedural Background

Elizabeth Eberbach ("Wife") and Christopher Eberbach ("Husband") (collectively, "the Parties"), were divorced on May 13, 2011. They are the parents of three children. As a part of their divorce, the Parties entered into a marital dissolution agreement ("the Parties' MDA"), which, along with the Parties' 2010 Parenting Plan (the "Parenting Plan"), was approved by the court and incorporated into its Final Decree on May 13, 2011. The Parties' MDA includes the following fee provision:

In the event it becomes reasonably necessary for either party to institute legal proceedings to procure the enforcement of any provision of this Agreement, the prevailing party shall also be entitled to a judgment for reasonable expenses, including attorney's fees, incurred in prosecuting the action.

At the time of their divorce, both Wife and Husband resided in Williamson County, Tennessee, but in 2013, Husband moved to Orlando, Florida.1 Subsequently, in March 2014, Wife gave Husband notice of her intent to relocate to Ohio, and on April 28, 2014, Husband filed a motion in opposition to Wife's relocation. On May 12, 2014, Wife filed a response to Husband's motion in opposition to her relocation. She also filed a counter-motion to relocate with the children and to modify the Parties' Parenting Plan ("the Relocation Motion").2 Wife also requested attorney's fees in the Relocation Motion.

By written order filed on June 13, 2014, the trial court granted Wife's motion pendente lite , allowing her to move to Ohio pending final hearing. The order further indicated that "[t]he parties will continue to operate under the permanent parenting plan executed on November 19, 2010, and incorporated in the court's Final Decree of Divorce on May 13, 2011."

On June 18, 2014, after he had been ordered by the trial court to answer written discovery and to appear for a deposition, Husband moved the trial court "for dismissal of all pending matters ... including, without limitation, his motion in opposition to relocation of mother and to alter visitation or parenting time." On June 19, 2014, Wife filed a motion to dismiss Husband's motion in opposition to her relocation for failure to prosecute. In her motion, Wife requested sanctions because it was the second post-divorce proceeding initiated by Husband in which he failed to appear or to comply with discovery orders and then dismissed his action. Wife's motion also asked the court to award her attorney's fees and costs. On June 20, 2014, Husband filed a notice of dismissal, stating "that pursuant to T[ennessee] R[ule] [of] C[ivil] P [rocedure] 41, [Husband] voluntarily dismisses, without prejudice, and discontinues all pending matters since [Husband's] April 28, 2014, Motion in Opposition to Relocation of Mother." On June 23, 2014, Wife filed a response to Husband's notice of voluntary dismissal, requesting that the court deny Husband's proposed order of dismissal. She also asked the court again to award her "a judgment against Husband in the amount of her attorney's fees and other costs incurred during this cause...."

Husband filed a response to Wife's June 19, 2014 motion to dismiss and for sanctions. On July 1, 2014, the trial court held a hearing concerning Husband's voluntary dismissal and Wife's June 19, 2014 motion to dismiss. The trial court also set the Relocation Motion for final hearing on July 15, 2014.

On July 7, 2014, Wife filed a motion for judgment against Husband for reimbursement of uncovered medical expenses. The Parenting Plan provides that the children's "uncovered reasonable and necessary medical expenses ... will be paid by pro rata share in accordance with [the Parties'] income[s]." The Parenting Plan lists Husband's monthly gross income as $27,766.00, and Wife's monthly gross income as $0. Wife asked the court to award her a judgment against Husband in the amount of $26,669.31, plus her attorney's fees and costs.

At the July 15, 2014 hearing, the trial court considered the Relocation Motion and Wife's motion for reimbursement of uncovered medical expenses, as well as her request for attorney's fees. With regard to Wife's request for attorney's fees during the hearing, the trial court stated:

[T]he Court is satisfied that the attorney's fees being requested on behalf of Ms. Eberbach are very reasonable in light of the extensive litigation that has been conducted in this case since Ms. Eberbach gave notice to Mr. Eberbach that she was relocating.
The Court will award attorney's fees and expenses incurred by Ms. Eberbach based on both the MDA, which incorporates the permanent parenting plan order, as well as the provision of Title 36, for the total amount requested by her....

(Emphasis supplied).

Accordingly, after the hearing, the trial court ordered that (1) Wife be allowed to relocate to Ohio with the children; (2) the Parenting Plan be modified accordingly; (3) Wife be awarded a judgment against Husband for reimbursement of out-of-pocket medical expenses in the sum of $26,096.50; and (4) Wife "be awarded her attorney's fees and expenses in the amount of $19,870 ... based on the parties' Marital Dissolution Agreement, and the provisions of T.C.A. 36–6–108(i) and 36–5–121."

Husband appealed and raised two issues. First, he claimed that the trial court erred in awarding Wife a judgment for medical expenses when she did not comply with the contractual terms set forth in the Parenting Plan. Second, he claimed that the trial court erred in awarding Wife attorney's fees. In the posture of Appellee, Wife requested an award of appellate attorney's fees and costs under the terms of the Parties' MDA and on the alternative ground that the appeal was frivolous pursuant to Tennessee Code Annotated section 27–1–122. The Court of Appeals affirmed the trial court's decision awarding Wife a judgment for medical expenses, rejecting Husband's argument that Wife did not comply with the contractual terms of the Parenting Plan.

As to the issue of the trial court's award of attorney's fees, the Court of Appeals concluded that the trial court did not abuse its discretion in awarding attorney's fees and costs under the Parties' MDA, as well as under Tennessee Code Annotated Section 36–5–103(c). However, it declined Wife's request for an award of fees and costs on appeal. While the Court of Appeals declined to award Wife fees under section 27–1–122, it did not address whether Wife was entitled to fees on appeal under the Parties' MDA. Wife filed a petition to rehear, specifically requesting the Court of Appeals to consider her claim for appellate attorney's fees under the Parties' MDA. The Court of Appeals summarily denied Wife's petition. Wife subsequently appealed on the sole issue of whether she was entitled to appellate attorney's fees.

DISCUSSION
Standard of Review

This case presents the issue of whether the Court of Appeals erred in failing to consider an award of appellate attorney's fees under the Parties' MDA. This is a question of law. Accordingly, our review is de novo with no presumption of correctness accorded to the conclusions of law of the courts below. Barnes v. Barnes, 193 S.W.3d 495, 498 (Tenn. 2006) ; Taylor v. Fezell, 158 S.W.3d 352, 357 (2005).

Analysis

In this appeal, Wife argues that the Court of Appeals erred by not addressing her request for appellate attorney's fees under the Parties' MDA and declining to award her discretionary attorney's fees on appeal. Specifically, she contends that the Court of Appeals lacks discretion to deny reasonable appellate attorney's fees to prevailing parties when there is a contract between the parties entitling the prevailing party to such fees.3

Tennessee has long followed the "American Rule" with regard to attorney's fees. State v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186, 194 (Tenn. 2000). This Rule provides that "a party in a civil action may recover attorney's fees only if: (1) a contractual or statutory provision creates a right to recover attorney's fees; or (2) some other recognized exception to the American Rule applies, allowing for recovery of such fees in a particular case." Cracker Barrel Old Country Store, Inc. v. Epperson, 284 S.W.3d 303, 308 (Tenn. 2009) (citing Fezell, 158 S.W.3d at 359 ; ...

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