                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                  December 10, 2013 Session

           IN RE: NATHANIEL C. T., JASON J. T. and EMERALD S. T.

                 Appeal from the Chancery Court for Washington County
                      No. 8948    G. Richard Johnson, Chancellor


                No. E2013-01001-COA-R3-CV-FILED-MARCH 17, 2014


This appeal concerns attorney’s fees. Two relatives (“Petitioners”) filed a petition to
terminate the parental rights of the parents (“Respondents”) to Respondents’ three minor
children (“the Children”).1 The Chancery Court for Washington County (“the Trial Court”),
pursuant to Tennessee Supreme Court Rule 13, appointed counsel to represent Respondents
in the parental termination action. After a long, drawn out process, the parties resolved their
legal dispute through a mediated agreement. The Children remained with Respondents.
Respondents filed a motion for attorney’s fees, arguing that they should be awarded
attorney’s fees under Tenn. Code Ann. § 36-5-103(c). The Trial Court held that Tenn. Code
Ann. § 36-5-103(c) was inapplicable under these circumstances and denied Respondents’
motion for attorney’s fees. Respondents appeal. We affirm the Trial Court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed;
                                  Case Remanded

D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which J OHN W. M CC LARTY,
J., joined. C HARLES D. S USANO, JR., C.J., filed a concurring opinion.

Kathryn J. Dugger-Edwards, Elizabethton, Tennessee, for the appellant, Ashlie T.

John S. Taylor, Johnson City, Tennessee, for the appellant, Jason T.

Jason A. Creech and Suzanne S. Cook, Johnson City, Tennessee, for the appellees, Angela
W. and David W.




       1
        While this is an appeal about attorney’s fees, the underlying matter leading to the appeal was an
attempted termination of parental rights. Therefore, we will not identify surnames of the family members.
                                                 OPINION

                                               Background

              In June 2008, the Children entered into the temporary custody of their aunt by
agreed order. In December 2008, Petitioners filed a petition to terminate parental rights of
Respondents to the Children. Respondents filed affidavits of indigency and, in 2009 and
2010 respectively as relevant, the Trial Court appointed Respondents counsel pursuant to
Tenn. Sup. Ct. Rule 131 . This family legal battle took years to unfold. Ultimately, the parties
entered mediation and reached an agreement in 2011. In the end, the Children remained with
Respondents.

              Respondents’ counsel received $1,000.00 and $2,070.25 respectively from the
State as compensation for their appointed work. However, Respondents’ counsel asserted
that they had amassed over $40,000.00 in attorney’s fees at the generally accepted rate for
private counsel. Relying on Tenn. Code Ann. § 36-5-103(c), Respondents filed a motion for
attorney’s fees.

               In March 2013, the Trial Court entered an order denying Respondents’ motion
for attorney’s fees. The Trial Court stated, in part:

                The Court finds that this action was originally commenced as a
        termination of parental rights and adoption case under T.C.A § 36-1-101 et
        seq. The statute recited by the Movants, T.C.A. § 36-5-103(c), in support of
        their Motion for Attorney Fees deals exclusively with custody and support
        cases wherein there is discretion accorded to a trial Judge in awarding such
        attorney fees and costs. The Court finds this is not a custody case that would
        trigger the discretion of the Court to award attorney fees under T.C.A. § 36-5-
        103(c); accordingly, the cases cited by the Movants are not applicable. To the
        contrary, the Court finds that the case law recited by the original Petitioners in
        response to the Motion for Attorney Fees, Bryant v Bryant 1999 WL 43282
        (Tenn. App. 1999) is applicable in this case. Under that cited authority there
        is no basis for the award of attorney fees to Movants in this cause under this,
        a termination of parental rights case. Further, the Court finds that this case
        was resolved pursuant to a Mediated Agreement and attorney fees were not


        1
         The stated purpose of Tenn. Sup. Ct. Rule 13 is to provide “for the appointment of counsel in all
proceedings in which an indigent party has a statutory or constitutional right to appointed counsel . . .” which
includes a proceeding to terminate parental rights. The Rule also provides “for compensation of appointed
counsel in non-capital cases . . . .”

                                                      -2-
       dealt with in that Agreement. Based on all the above the Motion for Attorney
       Fees filed by [Respondents] is respectfully denied, though the Court does
       recognize that their attorneys did expend significant effort in this case and the
       Court thanks them for that effort. Court costs are taxed to the original
       Petitioners . . . .

(Format modified). Respondents appeal to this Court.

                                          Discussion

              Though not stated exactly as such, Respondents raise one issue on appeal:
whether the Trial Court erred in denying Respondents’ request under Tenn. Code Ann. § 36-
5-103(c) for attorney’s fees. For their part, Petitioners contend that this appeal is frivolous,
and they request their attorney’s fees and costs on that basis.

               Our review is de novo upon the record, accompanied by a presumption of
correctness of the findings of fact of the trial court, unless the preponderance of the evidence
is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001).
A trial court's conclusions of law are subject to a de novo review with no presumption of
correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn.
2001).

               We first address whether the Trial Court erred in denying Respondents’ request
under Tenn. Code Ann. § 36-5-103(c) for attorney’s fees. Tenn. Code Ann. § 36-5-103
provides, in relevant part:

       (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.

Tenn. Code Ann. § 36-5-103(c) (2010).

             In Bryant v. Bryant, we elaborated upon the proper application of Tenn. Code
Ann. § 36-5-103(c), stating:

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              With regard to the issue of attorney fees, we are not generally inclined
      to interfere with decisions concerning attorney fees in cases where awarding
      fees is within the discretion of the trial court. Threadgill v. Threadgill, 740
      S.W.2d 419, 426 (Tenn.App. 1987). However, this deference extends only to
      cases in which the amount of the fee award is challenged, not to cases in which
      the legal justification of the award is at issue. In the latter case, this Court
      reviews the decision of the trial court the same as any other legal issue-with no
      presumption of correctness. State Dep't of Human Servs. v. Shepherd, 1989
      WL 144019, at *1 (Tenn.App. Nov. 29, 1989).

              A prevailing litigant had no right at common law to the payment of its
      legal fees or costs. Mooneys v. State, 10 Tenn. (2 Yer.) 578, 579 (1831);
      McCormic v. Smith, 668 S.W.2d 304, 306 (Tenn.App. 1984). The common
      law rule can be modified by contract, but in the absence of such, the authority
      of the court to award attorney fees must be statutorily grounded. Pullman
      Standard, Inc. v. Abex Corp., 693 S.W.2d 336, 338 (Tenn. 1985); Person v.
      Fletcher, 582 S.W.2d 765, 767 (Tenn.App. 1979). Thus, in the absence of a
      statute, contract, or other compelling equitable ground, a trial court cannot
      compel a losing party to pay a prevailing party's legal expenses. State ex rel.
      Orr v. Thomas, 585 S.W.2d 606, 607 (Tenn. 1979).

              Neither Respondent nor the trial court were [sic] able to point to any
      statutory support for the award of attorney fees in the type of proceeding
      before us. T.C.A. § 36-5-103(c) (Supp. 1998) allows the trial court to award
      legal expenses in custody and support proceedings. The proceeding before us
      in the case sub judice concerns termination of parental rights and adoption.
      There is no statutory authority which provides that the trial court can award
      attorney fees in such a proceeding. The trial court erred in awarding attorney
      fees to Respondent, and his request for attorney fees for this appeal is denied.

Bryant v. Bryant, No. 01A01-9806-CV-00337, 1999 WL 43282, at *6 (Tenn. Ct. App. Feb.
1, 1999), no appl. perm. appeal filed.

              Respondents argue that Tenn. Code Ann. § 36-5-103(c) applies such that they
should receive attorney’s fees even though their appointed counsel already received
compensation for their appointed work. Respondents assert, among other things, that while
this case involved an attempted termination of parental rights, it also may accurately be
characterized as a custody case for purposes of Tenn. Code Ann. § 36-5-103(c).
Additionally, Respondents assert that Respondents prevailed as the Children ultimately
stayed with them, thus making an award of attorney’s fees appropriate under the statute.

                                             -4-
Respondents also assert that their counsel should receive compensation commensurate with
their efforts in this winding, multi-year case.

              For their part, Petitioners argue that Respondents put forward no legal basis for
attorney compensation beyond that compensation their counsel received already for
appointed work. Petitioners assert that the Trial Court correctly denied Respondents
attorney’s fees because they were court-appointed attorneys under Tenn. Sup. Ct. Rule 13.
According to Petitioners, there is no legal basis for awarding Respondents attorney’s fees
under Tenn. Code Ann. § 36-5-103(c). We agree with Petitioners.

               Initially we observe that, while the original order in this case was a consent
order, the case proceeded to become a parental rights termination case and it was at that time
that the Trial Court appointed Respondents counsel pursuant to Tenn. Sup. Ct. Rule 13.
Custody is an issue in one form or another in every termination of parental rights case. This
does not mean that every termination of parental rights case also may accurately be
characterized as a custody case under Tenn. Code Ann. § 36-5-103(c). Such an interpretation
collapses the very real distinctions between attempts to terminate parental rights and more
modifiable matters of care and control. We find, as did the Trial Court, that this case is
correctly characterized as a termination of parental rights case and not a custody case. We
also observe that this is a case where one is hard-pressed to identify a “prevailing” party. The
dispute ended in a mediated agreement.

               Moreover, our research of case law on Tenn. Code Ann. § 36-5-103(c) has
yielded nothing that would support an award of attorney’s fees in circumstances such as those
of the instant case. A court may not award attorney’s fees simply because counsel have
worked hard and obtained a favorable result for their clients–as noted in the Bryant opinion
referenced above, under Tennessee law there must be some specific legal basis for an award
of attorney’s fees.

              In our view, a critical feature of this case is the nature of how Respondents’
counsel came to represent Respondents. Counsel did not work pro bono with an expectation
of seeking attorney’s fees from the losing party if their clients prevailed. Rather, counsel
were appointed to represent Respondents pursuant to Tenn. Sup. Ct. Rule 13. This
appointment defined the boundaries of the lawyers’ compensation as provided for by Rule
13. As discussed above, we are aware of no statutory or precedential basis for an award to
Respondents of additional attorney’s fees under Tenn. Code Ann. § 36-5-103(c) in this
termination of parental rights case where appointed counsel already have been compensated




                                              -5-
for their appointed work. We see no reason to depart from Bryant. We affirm the judgment
of the Trial Court.2

                 The second and final issue we address is Petitioners’ issue regarding whether
this appeal is frivolous. “‘A frivolous appeal is one that is ‘devoid of merit,’ or one in which
there is little prospect that [an appeal] can ever succeed.’” Morton v. Morton, 182 S.W.3d
821, 838 (Tenn. Ct. App. 2005) (quoting Industrial Dev. Bd. of the City of Tullahoma v.
Hancock, 901 S.W.2d 382, 385 (Tenn. Ct. App. 1995)). Exercising our discretion, we
decline to hold this appeal frivolous.

                                              Conclusion

              The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
Appellants, Ashlie T. and Jason T., and their surety, if any.


                                                         _________________________________
                                                         D. MICHAEL SWINEY, JUDGE




        2
         Petitioners make other arguments against an award of attorney’s fees, but we need not address them
to decide this case.

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