                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                August 24, 2011 Session

STATE OF TENNESSEE EX REL. JESSICA ELAINE DILLARD v. JEREMY
                  WILLIAMSON BLANKS

                  Appeal from the Juvenile Court for Dickson County
                   No. 07-09-137CS     A. Andrew Jackson, Judge


              No. M2010-00901-COA-R3-JV - Filed September 20, 2011


Mother of the parties’ three-year-old child appeals the trial court’s designation of Father as
the primary residential parent. Mother, who was temporarily named the primary residential
parent while the action was pending, contends the initial order by which she was appointed
was not a temporary order, but a final order and, thus, res judicata applies. The trial court
disagreed and entered a final order naming Father the primary residential parent of the
parties’ minor child. We affirm.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed

F RANK G. C LEMENT, J R., J., delivered the opinion of the Court, in which P ATRICIA J.
C OTTRELL, P.J., M.S., and R ICHARD H. D INKINS, J., joined.

Thomas J. Hendrickson, III, Nashville, Tennessee, for the appellant, Jessica Elaine Dillard.

J. Reese Holley, Dickson, Tennessee, for the appellee, Jeremy Williamson Blanks.

                                         OPINION

       The child at issue was born on April 27, 2008 to Jessica Elaine Dillard (“Mother”) and
Jeremy Williamson Blanks (“Father”). The parents were not married and six months after the
child’s birth, the parents ended their relationship.

       On July 2, 2009, the State of Tennessee filed a Petition to Set Support on behalf of
Mother requesting that Father pay child support, provide medical insurance, and pay
retroactive child support from the time of their separation in November 2008. On August 5,
2009, Father filed a motion seeking temporary physical and legal custody of the child. He
also filed an Answer to Mother’s petition and a Counter-Petition to Establish Parentage. In
his Answer, Father sought to be named the primary residential parent and receive child
support from Mother.

       At a hearing on August 14, 2009, the parties announced they had reached an
agreement on some but not all issues and presented an order reflecting their agreement to the
court for its approval. That order, however, was not signed until February 22, 2010. In the
interim, on January 12, 2010, the parties filed an order setting the final hearing for February
22, 2010.

       At the February hearing, the agreed order presented at the August 14 hearing, titled
“Temporary Agreed Order,” was approved by the court and entered. Pursuant to that order,
Father was identified as the biological father of the minor child and Mother was identified
as the primary residential parent. The order stated that Father was to maintain medical
insurance for the child, to be responsible for one-half of any expenses not covered by medical
insurance, and to pay child support in the amount of $285 per month. The Temporary Agreed
Order entered on February 22 also expressly reserved the issues of retroactive medical
insurance and child support.

        In addition to the entry of the Temporary Agreed Order on that date, the court also
conducted an evidentiary hearing during which Mother and Father testified as well as the
maternal grandfather and the paternal grandmother. Father testified that he has a stable job
where he has worked for over ten years and owns his own home. Father testified that Mother
denied him visitation on Father’s Day. Mother testified that she has lived in five different
locations since the parties ceased living together in 2008; she currently resided with her
father. Mother testified that she was not currently employed but was taking one class at
community college and planned on enrolling in nursing school. Mother denied that she
prohibited Father from having visitation with the child, but admitted that she had removed
the paternal grandmother from an approved pickup list at the child’s daycare. Both the
paternal grandmother and maternal grandfather testified that the child seemed happy and
well-adjusted, and that they had good relationships with the child and were willing to help
their respective children with her care. The court took the matters at issue under advisement
following the February 22 hearing.

        On March 19, 2010, the trial court entered an order designating Father the primary
residential parent, granting Mother visitation on alternating weeks until the minor child
started school at which time the visitation schedule would change, and finding Father owed
$1,954.42 in child support arrears. The trial court also ordered that neither party was to have
an overnight guest in the presence of the minor child. Mother filed a timely notice of appeal.



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       Mother presents four issues on appeal. She contends: (1) the trial court erred in not
finding that Father’s custody claim was barred under the res judicata principle of issue
preclusion; (2) the trial court erred in finding a material change in the minor child’s
circumstances justifying consideration of a change in custody; (3) the court erred in changing
custody without conducting a comparative fitness analysis of the child’s best interests; and
(4) she should be awarded her attorney’s fees at trial and on appeal. For his part Father
presents one issue, contending that he should be awarded his attorney’s fees on appeal.

                                           A NALYSIS

                                                I.

        Mother contends that Father’s custody claim was barred under the res judicata
principle of issue preclusion. The problem with this contention, we have determined, is that
the February 22, 2010 order, which is appropriately titled “Temporary Agreed Order,” is not
a final order to which res judicata principles attach. See Restatement (Second) of Judgments
§ 13 (“The rules of res judicata are applicable only when a final judgment is rendered.”).

        A trial court’s order does not constitute a final appealable order until the court has
adjudicated all the claims or the rights and liabilities of all the parties at issue. See Hoalcraft
v. Smithson, 19 S.W.3d 822, 827 (Tenn. Ct. App. 1999). Indeed, an order that adjudicates an
issue preliminarily is a temporary, interim or “interlocutory order.” See id. To constitute a
final order, the order must fully and completely define the parties’ rights with regard to all
of the issues, leaving nothing else for the trial court to decide. Id. (citing State ex rel.
McAllister v. Goode, 968 S.W.2d 834 (Tenn. Ct. App. 1997); Vineyard v. Vineyard, 170
S.W.2d 917, 920 (Tenn. Ct. App. 1942);Restatement (Second) of Judgments § 41, cmt. a
(1942)).

        Accordingly, unless and until an order becomes final, “it remains within the [trial]
court’s control and may be modified any time prior to the entry of a final judgment.”
Hoalcraft, 19 S.W.3d at 827 (citing Stidham v. Fickle Heirs, 643 S.W.2d 324, 328 (Tenn.
1982)); see also Fox v. Fox, 657 S.W.2d 747, 749 (Tenn. 1983) (noting that an interlocutory
order “can be revised at any time before the entry of judgment adjudicating all the claims and
rights and liabilities of all parties”); Winter v. Smith, 914 S.W.2d 527, 535 (Tenn. Ct. App.
1995) (stating that an interlocutory order is “subject to revision by the trial court any time
prior to the entry of a final judgment adjudicating all the claims raised”).




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       Furthermore, as the Tennessee Rules of Civil Procedure provide:

       [A]ny order or other form of decision, however designated, that adjudicates
       fewer than all the claims or the rights and liabilities of fewer than all the
       parties shall not terminate the action as to any of the claims or parties, and the
       order or other form of decision is subject to revision at any time before the
       entry of the judgment adjudicating all the claims and the rights and liabilities
       of the parties.

Tenn. R. Civ. P. 54.02.

      In this case, the parties announced at the August 14, 2009 hearing that they had agreed
upon certain parenting issues. In fact it was Mother’s attorney who made the following
statement to the court:

       This will be a temporary order adopted by the Court with Your Honor’s
       agreement, and we will reserve the issue of retroactive support, retroactive
       medical expenses, and any other issues that may arise during the dependency
       (sic) of the temporary parenting plan, Your Honor.

        Neither the announcement above nor the Temporary Agreed Order that followed made
a final determination as to all issues. Thus, the February 22, 2010 Temporary Agreed Order
was interlocutory and subject to the trial court’s modification at any time. See Fox, 657
S.W.2d at 749; Stidham, 643 S.W.2d at 328; Hoalcraft, 19 S.W.3d at 827; Winter, 914
S.W.2d at 535. Furthermore, when the parties appeared for trial on February 22, 2010, their
understanding was that the order was temporary. This is evident from the statement by the
trial judge as he summarized the procedural posture of the case: “Pursuant to the child
support order – I mean, to the temporary order, the mother was granted – was named as the
temporary primary parent, and a visitation schedule was established.” (emphasis added).
Moreover, Mother did not argue the issue of res judicata at the August 22, 2010 hearing;
therefore, that issue is waived for purposes of this appeal.

       Mother also contends the trial court erred in finding a material change in the minor
child’s circumstances justifying a change in custody. We find this argument is without merit
because there had not been a final determination regarding the designation of the primary
residential parent or the parenting plan; therefore, Father did not have to establish a material
change of circumstance to modify the Temporary Agreed Order. Under the principles of res
judicata, proving a material change in the minor child’s circumstances is only necessary
when a parent seeks a modification of a final judgment.

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      As for the comparative fitness issue, the record reflects that the trial court did conduct
a comparative fitness test, which was based in part on the testimony of Father, Mother, the
maternal grandfather, and the paternal grandmother at the February 22, 2010 hearing. At the
close of proof, both parties’ attorneys made closing arguments regarding the factors
surrounding custody and the best interests of the child.

      For the reasons discussed above, we find no merit to the first three issues raised by
Mother. We now turn our attention to the requests for attorney’s fees.

                                               II.

        Both parties contend they should be awarded their respective attorney’s fees. In cases
involving the custody and support of children “counsel fees incurred on behalf of minors may
be recovered when shown to be reasonable and appropriate.” Taylor v. Fezell, 158 S.W.3d
352, 360 (Tenn. 2005) (quoting Deas v. Deas, 774 S.W.2d 167, 169 (Tenn. 1989)). “The
purpose of these awards is to protect the children’s, not the custodial parent’s, legal
remedies.” Sherrod v. Wix, 849 S.W.2d 780, 785 (Tenn. Ct. App. 1992). There is no absolute
right to such fees; instead, the court is afforded the discretion to award attorney’s fees in such
cases, but “their award in custody and support proceedings is familiar and almost
commonplace.” Taylor, 158 S.W.3d at 359-360 (quoting Deas, 774 S.W.2d at 170).

         Mother asked to be awarded her attorney’s fees in the trial court; however, the court,
exercising its discretion, declined to award Mother her attorney’s fees. We review the trial
court’s decision to deny Mother’s request under the abuse of discretion standard. Huntley v.
Huntley, 61 S.W.3d 329, 341 (Tenn. Ct. App. 2001). Under this standard, we are required to
uphold the trial court’s ruling “as long as reasonable minds could disagree about its
correctness,” and “we are not permitted to substitute our judgment for that of the trial court.”
Caldwell v. Hill, 250 S.W.3d 865, 869 (Tenn. Ct. App. 2007). Having reviewed the record
and considered the factors we believe relevant to this issue, we are unable to conclude that
the trial court abused its discretion in denying Mother’s request to recover her attorney’s fees
at trial. Thus, we affirm the trial court’s decision to not award Mother her attorney’s fees
incurred in the trial court.

      Each party seeks to recover his/her attorney’s fees incurred on appeal. Whether to
award attorney’s fees incurred on appeal is a matter within the sole discretion of this Court.
Shofner v. Shofner, 181 S.W.3d 703, 719 (Tenn. Ct. App. 2004). In determining whether an
award for attorney’s fees is warranted, we consider, inter alia, the ability of the requesting




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party to pay his or her own attorney’s fees,1 that party’s success on appeal, whether that party
has acted in good faith, and whether an award of attorney’s fees is equitable. Id.; see also
Sherrod, 849 S.W.2d at 785. Considering Father’s success on appeal, the good faith Father
demonstrated throughout these proceedings, and the fact Mother had little if any chance of
successfully challenging the trial court’s final order based on the issue of res judicata, we
hold that Father’s request for attorney’s fees is justified; Mother’s is not. Therefore, on
remand, the trial court should determine the reasonable and necessary attorney’s fees Father
incurred on appeal and make an appropriate award after considering the relevant factors.

                                            I N C ONCLUSION

       The judgment of the trial court is affirmed, and this matter is remanded with costs of
appeal assessed against the appellant, Jessica Elaine Dillard.




                                                                ______________________________
                                                                FRANK G. CLEMENT, JR., JUDGE




        1
          The ability to pay, however, “should not be the controlling consideration with regard to awards for
legal expenses in custody or support proceedings.”Sherrod v. Wix 849 S.W.2d 780, 785 (Tenn. Ct. App.
1992) (citing Gaddy v. Gaddy, 861 S.W.2d 236, 241 (Tenn. Ct. App. 1992) (stating that a showing of ability
to pay attorney’s fees is not a prerequisite for awarding fees in disputes involving custody or child support).
“It is certainly a factor to be considered, but trial courts may award attorney’s fees without proof that the
requesting party is unable to pay them as long as the award is just and equitable under the facts of the case.”
Id.

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