                     IN THE COURT OF APPEALS OF TENNESSEE
                         WESTERN SECTION AT NASHVILLE
                 ________________________________________________

GWENDOLYN G. THOMPSON                          FROM THE CIRCUIT COURT
(BROWNING),                                         OF DAVIDSON COUNTY
                                                    No. 89D-2225
       Plaintiff-Appellant,
                                                       THE HONORABLE PHILIP E.
Vs.                                                    SMITH, SPECIAL JUDGE

DONALD LOUISE THOMPSON,                        C.A. No. 01A01-9510-CV-00460
                                                     AFFIRMED AND REMANDED
       Defendant-Appellee.

Robert W. Rutherford, Carol L.            Sue McKnight Evans of Nashville,
Soloman of Nashville, For Appellant       For Appellee
___________________________________________________________________________

                         MEMORANDUM OPINION1
                                                                                FILED
___________________________________________________________________________
                                                              June 28, 1996
CRAWFORD, J.
                                                                    Cecil W. Crowson
                                                                  Appellate Court Clerk
       Petitioner-appellant, Gwendolyn G. Thompson (Browning) (Wife), appeals from the

order of the trial court awarding respondent-appellee, Donald Lewis Thompson (Husband),

attorney fees in the amount of $500.00.

       The parties were divorced by decree entered June 18, 1990. The decree provided, inter

alia, that Husband would pay certain alimony and satisfy other obligations. On February 25,

1994, Wife filed a “Petition for Contempt and Increase in Alimony.” Husband’s answer joined

issue on the material allegations of the petition and prayed for reasonable attorney fees. An

evidentiary hearing was set for February 23, 1995, and at the conclusion of Wife’s proof, she

announced that she was taking a voluntary nonsuit. An order was entered on March 3, 1995,

which states:

                It appears to the court that the plaintiff, through counsel, noticed
                in open court the voluntary dismissal of this action pursuant to
                Rule 41.01 of the Rules of Civil Procedure, and it is

                THEREFORE ORDERED, ADJUDGED AND DECREED that
                this cause be, and the same hereby is, dismissed.

                The costs of this cause shall be taxed against the plaintiff, for
                which execution shall issue if necessary.

       On March 31, 1995, Husband filed a motion for attorney fees, and Wife did not file a

response to this motion. On August 3, 1995, an order was entered awarding the $500.00 fee, and




   1
    Rule 10 (Court of Appeals). Memorandum Opinion. -- (b) The Court, with the
concurrence of all judges participating in the case, may affirm, reverse or modify the actions
of the trial court by memorandum opinion when a formal opinion would have no precedential
value. When a case is decided by memorandum opinion it shall be designated
"MEMORANDUM OPINION," shall not be published, and shall not be cited or relied on for
any reason in a subsequent unrelated case.
this appeal ensued.

       Wife’s issue for review, as stated in her brief, is:

               Whether a motion for attorney’s fees is timely when filed more
               than thirty (30) days after notice of voluntary dismissal, pursuant
               to Tennessee Rules of Civil Procedure 41.01.

       Wife asserts that the effective date of the voluntary dismissal was February 23, 1995, the

date she announced the voluntary dismissal during the evidentary hearing. Wife argues that the

dismissal on February 23, 1995, was final, and therefore, the motion filed March 31, 1995, was

untimely because it was filed more than thirty (30) days after the entry of a final order. We need

not address Wife’s argument because we perceive that Wife has overlooked the fact that

Husband in his answer to Wife’s petition sought affirmative relief by a prayer for an award of

attorney fees. Wife’s voluntary dismissal did not operate to dismiss Husband’s prayer for relief,

and, thus, the voluntary nonsuit was not a final order from which an appeal would lie.

       The order of the trial court is affirmed, and this case is remanded for such further

proceedings as may be necessary. Costs of appeal are assessed against the appellant.

                                                       _________________________________
                                                       W. FRANK CRAWFORD,
                                                       PRESIDING JUDGE, W.S.
CONCUR:

_________________________________
ALAN E. HIGHERS, JUDGE

_________________________________
HOLLY KIRBY LILLARD, JUDGE




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