                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                  April 19, 2016 Session


      NATALIE ROWLAND STEWART v. BRIAN STACY ROWLAND

                   Appeal from the Circuit Court for Shelby County
                       No. CT00238102 Jerry Stokes, Judge

                          ________________________________

                  No. W2015-02147-COA-R3-CV – Filed June 2, 2016
                       _________________________________


This is a post-divorce case. Father appeals the trial court‘s decision not to hold Mother in
contempt for failure to provide court-ordered insurance coverage for the child. Father also
appeals the trial court‘s division of the child‘s uncovered medical bills and seeks
reimbursement for monthly payments he made toward the child‘s insurance premiums while
Mother failed to provide coverage. In addition, Father appeals the trial court‘s order
requiring him to provide insurance for the child past the age of majority based on the child‘s
medical disability and the judgment entered against him for Mother‘s attorney‘s fees. We
conclude that Father is entitled to a credit for those insurance premiums he paid to Mother
during the period of time the child was enrolled in TennCare. We reverse the trial court‘s
order on attorney‘s fees. The order is otherwise affirmed.

        Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
          Reversed in Part, Affirmed in Part as Modified, and Remanded

KENNY ARMSTRONG, delivered the opinion of the Court, in which ANDY D. BENNETT and
BRANDON O. GIBSON, JJ., joined.

Lisa J. Gill and Elizabeth Walker Fyke, Memphis, Tennessee, for the appellant, Brian Stacy
Rowland.

Stuart Brian Breakstone, Memphis, Tennessee, for the appellee, Natalie Rowland Stewart.
                                          OPINION

                                        I. Background

        Natalie Rowland Stewart (―Mother,‖ or ―Appellee‖) and Brian Stacy Rowland
(―Father,‖ or ―Appellant‖) were married on March 20, 2000. The parties were granted a
divorce on September 30, 2002. In conjunction with the divorce, the parties entered into a
permanent parenting plan for their minor child, who was born on April 20, 1997. The
parties‘ child was born with an autosomal recessive blood disorder called Pyruvate Kinase
Deficiency, which severely compromises her immune system. Since birth, the child has seen
some fifty specialists and has had more than twenty-four blood transfusions. As is relevant to
the instant appeal, the parenting plan that was entered in the trial court on September 3, 2002,
provides:

       3.3 HEALTH INSURANCE. [X] Mother [ ] Father will maintain
       medical/hospital insurance on the minor child(ren), and proof of continuing
       coverage will be furnished by February 15 of each year. Uncovered medicals,
       including deductibles, if any, will either [ ] borne by [ ] Mother [ ] Father, or
       [X] divided equally between the parties . . . .

       3.4 DENTAL INSURANCE. [X] Mother [ ] Father will maintain
       dental/orthodontics insurance on the minor child(ren), and proof of continuing
       coverage will be furnished by February 15 of each year. Uncovered medicals,
       including deductibles, if any, will either [ ] borne by [ ] Mother [ ] Father, or
       [X] divided equally between the parties . . . .

                                             ***

       3.6 OTHER PROVISIONS. The following special provisions apply to
       support: The Father shall reimburse Mother $66.00 per month for the cost of
       carrying the child‘s medical/dental insurance coverage. Said amount shall be
       paid no later than the last day of each month.

        On December 11, 2013, Mother filed a petition for civil and criminal contempt and to
modify the permanent parenting plan. Therein, Mother specifically averred that Father had
failed to comply with the foregoing provisions of the permanent parenting plan by willfully
failing and refusing to pay or reimburse Mother for his one-half share of the child‘s
uncovered medical expenses. Mother further averred that

       [i]n October, 2013, [Father] filed reports with [his] insurance carrier, the

                                             -2-
       Shelby County Tennessee Sheriff Department, the Olive Branch Mississippi
       Police Department, the FBI and the FTC alleging that [Mother] committed
       forgery and identity theft when she signed the [Father‘s] name to medical
       documents for the minor child to seek medical treatment for a blood condition
       the minor child was born with. The minor child[‘s] health coverage is through
       [Father‘s] employer. Since that time, the insurance provider has begun
       charging back claims paid on the minor child‘s behalf for treatment the minor
       child received as far back as the effective date of coverage.

Based, inter alia, on these allegations, Mother asked the trial court to hold Father in contempt
and to calculate his arrearage for failure to pay his portion of the child‘s uncovered medical
expenses. Mother also asked the court to reimburse her for attorney‘s fees expended in
bringing her petition.

       On February 7, 2014, Father filed a cross-petition for civil and criminal contempt
against Mother. Therein, Father alleged, in relevant part, that Mother

       has not maintained any medical/hospital insurance on the child at any time
       since the entry of the Final Decree of Divorce. [Mother] has not furnished to
       [Father] any proof of continuing coverage by February 15 of any year as
       provided in the Parenting Plan. [Mother] has willfully and knowingly failed to
       do or provide the aforementioned despite her ability to do so, and despite her
       actual knowledge that she is required to do so pursuant to the Orders of this
       Court.

Father further averred that Mother had also failed to provide dental coverage for the child as
required under the parenting plan. For these reasons, Father asked the court to find Mother in
contempt and to award his attorney‘s fees and costs incurred in bringing the cross-petition.
Also on February 7, 2014, Father filed his answer to Mother‘s petition. Therein, Father
denied that he had violated the parenting plan. Specifically, he averred that Mother had not
provided him with any bills for the child‘s uncovered medical expenses and that he was
current on all of his child support obligations.

       The case was continued in order for the parties to conduct discovery and attempt
mediation. On May 5, 2015, Mother filed an amended petition for civil and criminal
contempt and to modify the permanent parenting plan. In relevant part, Appellee‘s amended
petition provides:

       4. [Mother] is currently ordered to provide health insurance but can only
       afford TennCare which many of the minor child‘s providers do not accept.
       5. [Father] has also maintained the parties‘ child on his insurance up until this
                                            -3-
       December when he opted to no longer include the parties‘ minor child in his
       family plan despite it not costing him anything additional.

Citing the child‘s ongoing medical issues, Mother requested that the court require both
parties to maintain insurance coverage for the child and to ―continue to do so even past the
age of majority and graduation from high school since this is a disability that she has had
since birth.‖

        On or about June 3, 2015, Appellee filed a motion pendente lite requesting, in relevant
part, that Father be ordered to provide health insurance for the minor child past the age of
majority and for attorney‘s fees in the amount of $1,120.00. This motion was heard by the
Deputy Divorce Referee, who entered an order on his findings on June 22, 2015. The order
on the divorce referee hearing provides, in pertinent part, that: (1) Father shall immediately
take all necessary steps to add the minor child to his family insurance plan and shall maintain
insurance on the child ―at least until she attains the age of 26;‖ (2) Father shall continue to
pay for one-half of all uncovered medical bills, expenses, co-pays and deductibles for the
minor child until she reaches the age of 26; and (3) Father shall pay Mother‘s attorney‘s fees
in the amount of $1,120.00. On June 15, 2015, Father filed an appeal of the Divorce
Referee‘s ruling in the trial court. Specifically, Father argued that he should not be required
to provide health insurance for the child past the age of majority because there was no proof
before the Divorce Referee to show that the child was disabled.

      On August 28, 2015, the trial court heard the parties‘ respective petitions for contempt
and modification of the parenting plan, and Father‘s appeal of the Divorce Referee‘s ruling.
By order of September 30, 2015, the trial court held, in relevant part, as follows:

   (1) Mother‘s Amended Petition—Issue of Disability and Extension of Health
   Insurance Coverage: That the parties child . . . was at the time of the filing of the
   Amended Petition and still is disabled such that this Court retains jurisdiction over
   her support pending further orders of this Court. Further, that [Father] shall
   immediately take all necessary steps to: (1) add [the child] to his family insurance
   plan . . .; (2) provide proof of coverage and an insurance care to [Mother]; and (3)
   maintain said coverage until [the child] attains the age of 21. Further that both
   parties shall be equally responsible for one-half of all uncovered medical bills,
   expenses, co-pays and deductibles of [the child] until she attains the age of 21.

                                             ***


   (3) Outstanding Medical Bills: On the issue of unreimbursed medical bills, the
   Court finds that [Mother] is entitled to a judgment as child support for
                                         -4-
reimbursement of medical bills not covered by insurance in the amount of 50% of
$9,054.17 or $4,527.08 which [Father] is ordered to pay to [Mother] at the rate of
$400.00 per month in equal installments of $200.00 on the first and 15th of each
month beginning October 1, 2015 until paid in full with interest accruing thereon
at the rate of 12% per annum.

   On the issue of outstanding medical bills, the Court finds that the bills
[Mother] claims were ―charged back‖ by the Insurance provider as a result of
[Father‘s] reporting [Mother‘s] alleged forgery on hospital treatment bills which
[Mother] claims she had permission to sign, listed on [Mother‘s] Rule 1006
Summary titled ―Outstanding Medical Claim Balances‖ as follows:

           (a)    Line 10:       DOS: 5/24/08          $30,956.30
           (b)    Line 32:       DOS: 2009 & 2010      $4,335.88
           (c)    Line 40:       DOS: 2009             $126.60
           (d)    Line 41        DOS: 2009             $549.75
           (e)    Line 43        DOS: 9/30/09          $512.00
           (f)    Line 44        DOS: 11/02/09         $119.00

           Those outstanding bills identified by [Mother] total $36,599.53, or
   roughly $36,600.00. The Court[,] therefore[,] finds because those charges are
   due to [Father‘s] actions that [Father] shall pay the first $18,300 of the
   $36,600.00 that [Mother] alleged is owed in outstanding medical bills due to
   [Father‘s] actions. [Father] shall pay outstanding amounts directly to the
   providers and shall provide proof of actual payment to [Mother] within 15 days
   of payment to any providers owed any current outstanding medical bill towards
   the $18,300.00 he is ordered to pay. After [Father] pays his one-half portion of
   the $36,600.00 [Mother] claims resulted from [Father‘s] actions, [Mother]
   shall be responsible for her one-half portion of the $36,600.00 for those bills
   listed above as (a)—3(f).

                                          ***

(5) Attorney‘s Fees: Further, this Court finds that [Mother] is entitled to a portion
of her attorney‘s fees in the amount of $3,500.00, to be paid as follows:

(a) [Father] is ordered to pay $1,120.00 of the $3,500.00 to [Mother‘s attorney]
    within 60 days from the date of this hearing . . .; and
(b) [Father] is ordered to pay the balance in the amount of $2,380.00 to [Mother‘s
    attorney] within 90 days from the date of this hearing . . . .

                                          -5-
In addition, the trial court held that neither party had met his or her burden to prove that the
other party was in either criminal or civil contempt. Therefore, the court declined to impose
sanctions for contempt against either party.

                                            II. Issues

   Father appeals. He raises five issues for review as stated in his brief:

       I. Did the trial court err when it failed to find that the Appellee was in
       contempt for failing to provide insurance coverage for the parties‘ minor child
       as required by their Permanent Parenting Plan?

       II. Did the trial court err by failing to apply insurance premium payments
       Appellant paid to Appellee in the total amount of $10,098.00 where Appellee
       did not provide medical/dental insurance and, instead, coverage was mostly
       provided by a step-parent?

       III. Did the trial court err by allowing Appellee to recover for allegedly
       ―uncovered medicals‖ where Appellee was in violation of the provision
       requiring her to provide health insurance?

       IV. Did the trial court err in modifying the Permanent Parenting Plan to require
       Appellant to provide dental/medical insurance for the minor child past the age
       of majority?

In addition, both parties ask this Court to award their respective attorney‘s fees and costs for
this appeal.

                                  III. Standard of Review

       Because this case was tried by the court, sitting without a jury, this Court conducts a
de novo review of the trial court‘s decision with a presumption of correctness as to the trial
court‘s findings of fact, unless the evidence preponderates against those findings. Wood v.
Starko, 197 S.W.3d 255, 257 (Tenn. Ct. App. 2006). For the evidence to preponderate
against a trial court‘s finding of fact, it must support another finding of fact with greater
convincing effect. Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App.
2000); The Realty Shop, Inc. v. R.R. Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn.
Ct. App. 1999). This Court reviews the trial court‘s resolution of legal issues without a
presumption of correctness. Johnson v. Johnson, 37 S.W.3d 892, 894 (Tenn. 2001).


                                             -6-
                                           IV. Analysis

                                           A. Contempt


        Father appeals the trial court‘s finding that Mother was not in contempt of court for
failure to provide health insurance for the child as required under the parenting plan.1 At the
hearing, Mother argued, inter alia, that she could not be held in contempt of the court‘s order
when she had always provided for the child‘s insurance either through her or her spouse‘s
employer, or through TennCare.

      Regarding the payment of insurance premiums for minor children following a divorce,
Tenn.Code Ann. § 36-5-101 provides in pertinent part:

       (h) (1) The court may direct the acquisition or maintenance of health insurance
       covering each child of the marriage and may order either party to pay all, or
       each party to pay a pro rata share of, the health care costs not paid by insurance
       proceeds. In no event shall eligibility for or receipt of Medicaid or
       TennCare-Medicaid by the custodial parent be considered to meet the
       need to provide for the child's health care needs in the order, if reasonable
       and affordable health insurance is available.

Tenn. Code Ann. § 36-5-101(h)(1) (emphasis added). Furthermore, the Child Support
Guidelines provide:

       4. Eligibility for or enrollment of the child in TennCare or Medicaid shall not
       satisfy the requirement that the child support order provide for the child‘s
       health care needs.

Tenn. Comp. R. & Regs. 1240-2-4-.04(1)(a).

       Under the foregoing authority, Mother could not satisfy the trial court‘s order by
enrolling the child in TennCare. The mere fact that the Mother violated the parenting plan,

       1
          Based on Father‘s argument in his appellate brief, we conclude that he is appealing only the
trial court‘s refusal to find Mother in civil contempt. Although Father also alleged criminal
contempt against Mother in his cross-petition, after reviewing the trial court record, it does not
appear that Father pursued the criminal contempt allegations at trial. Regardless, under the facts of
this case, we conclude that Father has failed to carry his burden to show, beyond a reasonable doubt,
that Mother was guilty of criminal contempt.

                                                -7-
however, is insufficient to carry Father‘s burden to show that she was in contempt in the
absence of the willfulness element.

        A claim of civil contempt based upon alleged disobedience of a court order requires
four essential elements: (1) the order alleged to have been violated must be ―lawful‖; (2) the
order alleged to have been violated must be clear, specific, and unambiguous; (3) the person
alleged to have violated the order must have actually disobeyed or otherwise resisted the
order; and (4) the violation of the order must have been ―willful.‖ Lovlace v. Copley, 418
S.W.3d 1, 34 (Tenn. 2013) (citing Konvalinka v. Chattanooga–Hamilton Cnty. Hosp. Auth.,
249 S.W.3d 346, 354-55 (Tenn. 2008)). The order at issue is lawful, and there is no dispute
regarding the clarity of the order or whether Mother violated the order; thus, we focus our
analysis on the fourth element, whether Mother‘s violation was ―willful.‖ When reviewing a
trial court‘s findings of civil contempt, the factual issue of whether ―a particular violation
was willful, [is] reviewed de novo, with a presumption of correctness afforded to the trial
court‘s findings.‖ Id. at 17 (citing Konvalinka, 249 S.W.3d at 356-57).

        In the context of civil contempt, conduct is deemed willful if it ―‗is the product of free
will rather than coercion. Thus, a person acts ‗willfully‘ if he or she is a free agent, knows
what he or she is doing, and intends to do what he or she is doing.‘‖ Konvalinka, 249 S.W.3d
at 357 (quoting State ex rel. Flowers v. Tenn. Trucking Ass'n Self Ins. Group Trust, 209
S.W.3d 602, 612 (Tenn. Ct. App. 2006)). In other words, ―[h]olding an individual in
contempt is an available remedy ‗only when the individual has the ability to comply with the
order at the time of the contempt hearing.‘‖ Moore v. Moore, No. M2004–00394–COA–R3–
CV, 2007 WL 2456694, at *3 (Tenn. Ct. App. Aug. 29, 2007) (quoting Ahern v. Ahern, 15
S.W.3d 73, 79 (Tenn. 2000)).

       At the hearing, Mother testified that, following her lay off, she was unable to afford
COBRA payments. Accordingly, she procured TennCare for the child. Although, on appeal,
Father contends that there was no proof that Mother could not afford the COBRA premiums
other than her ―self-serving‖ testimony, Father did not provide any countervailing evidence
to dispute Mother‘s testimony on this point. Furthermore, the trial court made no finding that
Mother‘s testimony, on this point, was not credible. The fact that Mother was unable to
afford coverage other than TennCare would likely negate the willfulness requirement for a
finding of contempt. However, even if we assume, arguendo, that it would not, there is no
evidence that Mother knew that the provision of TennCare was not sufficient to satisfy the
court‘s order to maintain the child‘s health insurance. From the totality of the circumstances,
we, therefore, conclude that Father has failed to carry his burden to show that Mother was in
willful violation of the court‘s order. Accordingly, we affirm the trial court‘s finding that
Mother was not in contempt.


                                              -8-
                                 B. “Uncovered Medicals”

        Although we do not reverse the trial court‘s finding that Mother was not in contempt
for failure to provide health insurance for the child, it is, nonetheless, undisputed that she
failed to do so. Father argues that but for Mother‘s failure to provide court-ordered
insurance, his insurance company would not have ―charged back‖ payments made for the
child‘s medical care. Father contends that because these ―charge backs‖ were caused by
Mother‘s failure to provide insurance, the trial court erred in requiring him to pay any portion
of these expenses. We disagree. Despite Father‘s argument, the record shows that these
expenses were, at least in part, due to his actions in accusing Mother of fraud in the
procurement of the payments made by his insurance provider.

        The record shows that Father has carried the child on his insurance from birth. While
Mother maintained insurance on the child through her (or her spouse‘s) employer, Father‘s
insurance was the secondary insurance for the child. When Mother enrolled the child in
TennCare, however, Father‘s insurance became the child‘s primary insurance. See Tenn.
Comp. R. & Regs. 1200-13-13-.09(6) (―TennCare shall be the payor of last resort, except
where contrary to federal or state law.‖). In this regard, Father is correct that but for
Mother‘s failure to provide adequate coverage, the insurance coverage he provided would not
have been triggered. However, Father must accept some of the culpability for the ―charge
backs.‖ In its order, supra, the trial court specifically found that the charged back amounts,
i.e., $36,600.00, ―are due to [Father‘s] actions.‖ While we do not entirely agree with the trial
court that Father is solely at fault for the charged back amounts, we do agree that, given the
fact that Father had provided secondary coverage for the child for many years, he should
have known that these charges were paid on the child‘s behalf. Instead of contacting Mother
to determine why his insurance was being charged, or coming back into the court for a
determination on the child‘s insurance coverage, Father, in what appears from the record to
be an attempt to punish Mother, contacted his insurance provider and made allegations of
fraud. In this regard, but for Father‘s actions, there would have been no charged back
amounts. Accordingly, we conclude that both parties are somewhat at fault in the creation of
the charged back amounts. Because the parenting plan provides that the parties will bear
equally the costs of uncovered medical expenses, we cannot conclude that the trial court
erred in ordering Father to pay one-half of the $36,600.00.

                      C. Credit for Insurance Premium Payments

       As set out above, the parenting plan provides that Father will reimburse Mother $66
per month for the costs of the child‘s health insurance premiums. Mother testified that, at the
end of 2012, she was laid off. Thereafter, Mother procured TennCare coverage for the child.
Although Mother testified that ―she believed‖ Father had stopped paying the $66 per month
at some point after the child‘s insurance was placed with TennCare, there is no evidence that
                                              -9-
Father stopped paying the $66 per month at any time until May 2015, when the child reached
the age of majority. In fact, there was no evidence that Father was behind on any of his
payments to Mother. In other words, the record shows that, from January 2013 until May
2015, Father paid Mother $66 per month for the child‘s insurance premiums, and Mother
failed to provide health insurance for the child except through TennCare, which as discussed
above did not satisfy her obligation to provide health insurance for the child. Tenn. Code
Ann. § 36-5-101(h)(1); Tenn. Comp. R. & Regs. 1240-2-4-.04(1)(a).

        On appeal, Father asks this Court to award him a credit of some $10,000, which is the
sum of all of the $66 payments he made for the child‘s insurance premiums from the date of
entry of the parenting plan until the child reached majority. However, during most of the
relevant period, Mother did provide insurance for the child. It was not until 2013 that she
enrolled the child in TennCare. Accordingly, Father is only entitled to a credit for the $66
payments he made from January 2013 (i.e., when Mother procured TennCare) through May
2015 (i.e., when the child turned eighteen), or twenty-nine months. Accordingly, Father is
entitled to a $1,914.00 credit. Such credit does not constitute a retroactive modification of
Father‘s child support obligation under this Court‘s holding in Peychek v. Rutherford, No.
W2003-01805-COA-R3-JV, 2004 WL 1269313 (Tenn. Ct. App. June 8, 2004), wherein we
stated, in relevant part:

       [T]his court has acknowledged that the statute prohibits retroactive
       modifications of child support payments. As for credits, however, this court
       has held that they are not modifications. Instead, the credit recognizes that the
       obligor parent provided the support the court ordered in the first place.
       Netherton, 1993 WL 49556, at *2

                                              ***
       [T]he nature of a credit ―recognizes that the obligor parent provided the
       support the court ordered in the first place.‖ Netherton v. Netherton, 1993 WL
       49556 (Tenn. Ct. App. Feb. 26, 1993).

                                             ***

       [I]t is well settled that non-custodial parents may be given credit against their
       child support obligation for payments made on behalf of their children if such
       payments are for necessaries that the custodial parent either failed to provide
       or refused to provide. Brownyard v. Brownyard, 1999 WL 418352 (Tenn. Ct.
       App. June 22, 1999); Hartley v. Thompson, 1995 WL 296202 (Tenn. Ct. App.
       May 17, 1995); Oliver v. Oczkowicz, 1990 WL 64534 (Tenn. Ct. App. May 18,
       1990). However, the credit for necessaries cannot exceed the amount of
       support due for the period during which the necessaries were furnished. W.
                                             - 10 -
       Walton Garrett, Divorce, Alimony and Child Custody § 14-8(8) (2001). The
       obligation to provide necessaries requires the provision of appropriate food,
       shelter, tuition, medical care, legal services, and funeral expenses as are
       needed. What items are appropriate and needed depends on the parent's ability
       to provide and this issue is to be determined by the trier of fact. Id. at § 2-3(3).

                                              ***

       In order to maintain a successful claim for necessaries, the plaintiff must
       prove: (1) that the child needed the particular goods or services that were
       provided, (2) that the defendant had a legal obligation to provide the goods or
       services, (3) that the defendant failed to provide the goods or services, and (4)
       the actual cost of these goods or services. Hooper v. Moser, 2003 WL
       22401283, at *3 (Tenn. Ct. App. Oct. 22, 2003).

Peychek, 2004 WL 1269313, at *4. Because Father has satisfied his burden to show that the
child was in need of health insurance, that Mother was legally obligated to provide insurance,
and that Mother failed to provide this necessary, he is entitled to a credit of $1,914.00 for the
time period Mother failed to provide health insurance other than TennCare. Accordingly, we
remand for entry of judgment in favor of Father and against Mother for $1,914.00.

             D. Provision of Health Insurance beyond the Age of Majority

       Father next appeals the trial court‘s order that he provide insurance for the child until
the age of twenty-one. Specifically, Father contends that the child is not disabled as that term
is defined under the Americans with Disabilities Act, such that he should be ordered to
provide health insurance coverage past the child‘s majority. Tennessee Code Annotated
Section 36-5-101 provides:

       (k)(1) Except as provided in subdivision (k)(2), the court may continue child
       support beyond a child's minority for the benefit of a child who is handicapped
       or disabled, as defined by the Americans with Disabilities Act, compiled in 42
       U.S.C. § 12101 et seq., until such child reaches twenty-one (21) years of age.

42 U.S.C.A. § 12102 provides, in pertinent part:

       (1) Disability

       The term ―disability‖ means, with respect to an individual—

       (A) a physical or mental impairment that substantially limits one or more major
                                          - 11 -
       life activities of such individual;
       (B) a record of such an impairment; or . . .

       (2) Major life activities

                                              ***

       (B) Major bodily functions

       For purposes of paragraph (1), a major life activity also includes the operation
       of a major bodily function, including but not limited to, functions of the
       immune system, normal cell growth, digestive, bowel, bladder, neurological,
       brain, respiratory, circulatory, endocrine, and reproductive functions.

       (3)

       For purposes of paragraph (1)(C):

                                              ***

       (B) Paragraph (1)(C) shall not apply to impairments that are transitory and
       minor. A transitory impairment is an impairment with an actual or expected
       duration of 6 months or less.

Id. (emphasis added). Under the plain language of the Americans with Disabilities Act,
problems of the immune system are considered a disability. Despite Father‘s protestation
that the child is not limited in her ability to live a normal life in terms of her activities, the
evidence does not support Father‘s argument. Although the child testified that she can
participate in most activities, she (and Mother) testified that a common cold can require
hospitalization and blood transfusions. In fact, the child has had many blood transfusions
since birth. In addition, the medical billing statements that are included in the record clearly
indicate that the child has required frequent hospitalizations. Mother testified, and Father did
not dispute, that the child‘s condition is genetic and incurable, i.e., not ―transitory and
minor‖. The mere fact that the child can participate in activities and does not need constant
medical assistance does not negate the underlying diagnosis that can lead to life-threatening
amplification of even the most minor cold. Accordingly, we conclude that the evidence
supports a finding of disability such that the child is in need of continuing health insurance
coverage past the age of majority. Therefore, we affirm the trial court‘s order requiring
Father to provide health insurance until the child reaches twenty-one.


                                              - 12 -
                                     E. Attorney’s Fees

      In Sandusky v. Sandusky, No. M2000-00288-COA-R3-CV, 2001 WL 327898 (Tenn.
Ct. App. April 5, 2001), we stated:

             Spouses who are required to return to court to enforce their former
      spouse‘s child support obligations may recover their legal expenses. Tenn.
      Code Ann. § 36-5-103(c) (Supp. 2000).2 The purpose of permitting these
      awards is to protect and promote a child‘s right to support. Accordingly,
      requiring parents who frustrate child support orders to underwrite the expense
      of vindicating a child support order is appropriate. Sherrod v. Wix, 849
      S.W.2d 780, 785 (Tenn. Ct. App. 1992).

             While decisions regarding requests for legal expenses are discretionary,
      Placencia v. Placencia, 3 S.W.3d 497, 504 (Tenn. Ct. App. 1999), awards for
      these expenses incurred by a spouse to vindicate child support rights are
      becoming familiar and almost commonplace. Deas v. Deas, 774 S.W.2d 167,
      170 (Tenn. 1989); Sherrod v. Wix, 849 S.W.2d at 785. These awards are
      appropriate when the parent seeking to defend or to enforce a child support
      obligation prevails or when requiring the prevailing spouse to pay his or her
      legal expenses would inequitably reduce the amount of support the child
      receives. Richardson v. Richardson, 969 S.W.2d 931, 936 (Tenn. Ct. App.
      1997). A spouse who is otherwise entitled to an award for legal expenses
      should not be prevented from collecting them simply because he or she might
      be financially able to pay these fees on their own. Gaddy v. Gaddy, 861
      S.W.2d 236, 241 (Tenn. Ct. App. 1992).

Sandusky, 2001 WL 327898.

      As discussed above, there is fault on the part of both parties in this case. Under the

      2
          Tennessee Code Annotated Section 36-5-103(c) currently provides:

      (c) 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.
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fact of this case, the parties should have come back to court immediately after Mother was
laid off in order to address the issue of the child‘s insurance coverage and the payment of
uncovered medical expenses. Both having failed to do so, both must bear some fault for the
accrual of uncovered medical expenses. Furthermore, there is no indication that Father was
ever in arrears on any of his support obligations. In fact, he continued to pay the Mother $66
per month to reimburse her for insurance premiums that, by all accounts, Mother never paid.
There is also evidence to suggest that Mother did not promptly send the child‘s outstanding
medical bills to Father so that he would be on notice that he owed uncovered amounts. For
these reasons, we conclude that the trial court abused its discretion in ordering Father to pay
any of Mother‘s attorney‘s fees. Accordingly, we reverse the trial court‘s order in this
regard.

       Both parties ask this Court to award their respective attorney‘s fees on appeal. In
considering a request for attorney's fees on appeal, we consider the requesting party‘s ability
to pay such fees, the requesting party‘s success on appeal, whether the appeal was taken in
good faith, and any other equitable factors relevant in a given case.‖ Moran v. Wilensky, 339
S.W.3d 651, 666 (Tenn. Ct. App. 2010) (citing Archer v. Archer, 907 S.W.2d 412, 419
(Tenn. Ct. App. 1995)). Considering the equities between the parties and the ultimate
disposition of this appeal, we decline to award either party‘s attorney‘s fees on appeal.

                                       V. Conclusion

       For the foregoing reasons, we reverse the order of the trial court to the extent that it
requires Father to pay any of Mother‘s attorney‘s fees. We remand the case for entry of a
judgment in favor of Father and against Mother for a $1,914.00 credit for necessaries Father
provided. The trial court‘s order is otherwise affirmed, and the case is remanded for such
further proceedings as may be necessary and are consistent with this opinion. Costs of the
appeal are assessed one-half to the Appellant, Brian Stacy Rowland and his surety, and one-
half to the Appellee, Natalie Rowland Stewart, for all of which execution may issue if
necessary.




                                                     _________________________________
                                                     KENNY ARMSTRONG, JUDGE,




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