                IN THE COURT OF APPEALS OF TENNESSEE




BOBBY STEPHEN CANNON,         )
                              )
          Plaintiff-Appellant,)
                                                       FILED
                                  C/A NO. 03A01-9702-CV-00059


                              )
                              )                          June 27, 1997
v.                            )
                              )                        Cecil Crowson, Jr.
                              )                        Appellate C ourt Clerk
                              )
TERRI LYN LIVINGSTON CANNON, )    APPEAL AS OF RIGHT FROM THE
                              )   BLOUNT COUNTY CIRCUIT COURT
          Defendant-Appellee, )
                              )
                              )
and                           )
                              )
                              )
                              )
BETTY LIVINGSTON,             )
                              )
          Intervening Party- )    HONORABLE W. DALE YOUNG,
          Appellee.           )   JUDGE




For Appellant                         For Appellee Terri Lyn
                                        Livingston Cannon

F. D. GIBSON                          R. D. HASH
KEVIN TEFFETELLER                     Maryville, Tennessee
Maryville, Tennessee

                                      For Appellee Betty Livingston

                                      NO APPEARANCE




                          OPINION


AFFIRMED AND REMANDED                                        Susano, J.

                                  1
           This is a post-divorce dispute concerning the custody

of Tabitha LeAnn Cannon, age ten.    The order of the trial court,

from which this appeal was taken, denied the petition of the

child’s father, Bobby Stephen Cannon (Father), for change of

custody.   Instead, the trial court continued the child’s custody

in her mother, Terri Lyn Livingston Patterson (Mother), who had

been granted sole legal custody of the child when she and Father

were divorced on February 12, 1987.   On this appeal, Father

initially raised two issues.   He argued that the trial court

abused its discretion in failing to change custody.   He also

contended in his brief that “the trial court erred in awarding

legal fees to a non-successful intervening party,” i.e., the

child’s maternal grandmother, Betty Livingston (Intervening

Party).



           At oral argument, Mother and Father presented this

court with an agreed order providing that they had



           settled all issues regarding custody of the
           minor child by Agreed Order submitted to
           [the] Blount County Circuit Court in which
           [Father] shall receive full legal custody of
           the child.



The panel of this court assigned to hear this case signed the

order, and it was filed with the clerk of this court on May 14,

1997.   Therefore, the only issue now before us is the propriety

of the trial court’s order providing that the attorney’s fees of

the Intervening Party in the amount of $3,528.75 are “to be

divided equally between the parties,” i.e., Father and Mother.



                                 2
                                I



          Shortly after the Cannons’ divorce, Mother permitted

the minor child to go to Mississippi to visit with Intervening

Party.   The stay became an extended one.   The child remained

continuously with Intervening Party in Mississippi until

December, 1987, when both returned to Blount County.    Thereafter,

the child continued to live with Intervening Party in Blount

County or Knox County and was residing there at the time of the

hearing below.   While the child’s primary residence was with

Intervening Party, she visited her parents on a regular basis.



          Intervening Party had secured an order from the Blount

County Juvenile Court on September 12, 1988, vesting “the

exclusive custody and control” of the child in Intervening Party.

Intervening Party and the child’s parents operated under this

order, which included visitation “privileges” for both parents,

until Judge W. Dale Young, Judge of the Blount County Circuit

Court, held in the instant case on June 7, 1995, that the

Juvenile Court order was void because that court lacked subject

matter jurisdiction to enter it.



                                II



           After Father filed his petition for change of custody

in the instant case, the maternal grandmother filed a motion to

intervene in this proceeding, in which motion she made the

following allegations:



                                   3
          Petitioner avers that she is the maternal
          grandparent of the parties’ minor child,
          Tabitha Leann Cannon, that she has had the
          physical custody of the minor child for a
          long period of time, and that she loves this
          child and has cared for and supported this
          child since being awarded custody on the 12th
          day of September, 1988, in the Juvenile Court
          for Blount County, Tennessee.

          Petitioner avers that it is in the best
          interests of the minor child that she be
          awarded permanent custody, reserving the
          right of visitation to the parents.



In her petition, Intervening Party asked



          [t]hat upon the hearing of this cause,
          Intervening Petitioner be awarded the
          physical custody of the parties’ minor child,
          Tabitha Leann Cannon, subject to visitation
          privileges of the Plaintiff and Defendant.



          When this matter was heard in the Blount County Circuit

Court, the trial judge granted the motion to intervene and asked

Intervening Party’s counsel what relief she sought.   Counsel

replied, in pertinent part, as follows:



          I guess the Court needs to hear just a brief
          history. We have literally had the care of
          this child for eight or nine years. And this
          grandmother has taken care of her, and she
          has petitioned the Court for custody of the
          child. Now we are realistic enough to know
          that the current state of the law, since this
          case has been pending is more--is pronounced
          in favor of parents against third parties who
          have the care of children, even for long
          extended periods of time. And therefore; we
          modify our position at this point. The Court
          has made a statement that our daughter has
          custody and we think that is proper. We
          think at this time that’s a good thing for
          the Court to decide, and we are asking that
          custody be granted to her--or to stay with


                                4
          her I guess is more proper. There does need
          to be a phasing-in period under the guidance
          of Dr. Kaufman, and we basically have agreed
          to that already.

          So between the two of us there is not much of
          a complaint with the Court. We do object to
          Mr. Cannon’s obtaining custody of this child,
          and I guess the reason we ought to be here as
          a party is because my client has literally
          had the physical custody of this child for
          some time by agreement of both of these
          parties, not just this lady, but also Mr.
          Cannon.



                                 III



          Husband argues that when this case was tried below,

Intervening Party was no longer seeking custody, was ultimately

unsuccessful in persuading the court not to change custody to

Father, and is therefore not entitled to have her fees paid by

the natural parents.   Mother joins in this position.   We

respectfully disagree.



          A trial court has discretion to award attorney’s fees

in custody proceedings.    T.C.A. § 36-5-103(c); Graham v. Graham,

204 S.W. 987, 989 (Tenn. 1918); Sherrod v. Wix, 849 S.W.2d 780,

784-85 (Tenn.App. 1992).   The Supreme Court has referred to such

awards as “familiar and almost commonplace.”    Deas v. Deas, 774

S.W.2d 167, 170 (Tenn. 1989).



          While ability to pay is a factor to be considered in

such awards, “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.”

                                  5
Sherrod, 849 S.W.2d at 785.



            Father and Mother contend that Intervening Party is not

entitled to fees for two reasons: first, she was not seeking

custody at the time of the hearing, and second, she was

ultimately not successful in opposing Father’s request for change

of custody.    We find neither argument persuasive.          She was

successful in opposing Father’s request for change of custody

until sometime after the hearing below, when the child’s parents

entered into an agreed order granting Father the relief he

sought.   In fact, the trial court’s first order following the

hearing in June, 1995, provided



            [t]hat the Intervening Petitioner, Betty
            Livingston, the grandmother of the minor
            child, shall have physical custody of the
            minor child, Tabitha Leann Cannon, with the
            legal custody to remain with the mother,
            Terri Patterson.



It was not until we remanded this case to the trial court for the

entry of a final order addressing Intervening Party’s request for

attorney’s fees that the trial court completely eliminated

Intervening Party from the custody “picture.”1



            As to the argument that Intervening Party’s failure to

seek custody at the final hearing should make her ineligible to

receive attorney’s fees, we note that Intervening Party had



     1
       In its final order of September 19, 1996, the trial court awarded
Intervening Party attorney’s fees of $3,528.75 and again awarded Mother
custody of the minor child; however, this subsequent order did not award
Intervening Party physical custody of the child, as had the earlier order.

                                      6
something more than a pedestrian interest in this proceeding.

The child had been with Intervening Party for some eight years.

For approximately seven of those years, the child had been with

Intervening Party pursuant to, and the parties had operated

under, a Juvenile Court order, which, though ultimately

determined to be void, had addressed the respective rights of

these three parties with respect to this child.   In our opinion,

the maternal grandmother was an appropriate party to this

proceeding.   It is clear to us that but for the law’s general

preference for parents over third parties, she would have

continued to seek her granddaughter’s custody in this case.



          Under the unique circumstances of this case, we do not

find that the evidence preponderates against the trial court’s

award of attorney’s fees.   The award was “just and equitable

under the facts of the case.”   See Sherrod, 849 S.W.2d at 785.

There has been no showing that the trial court abused its

discretion.



           The order of the trial court is affirmed.   Costs on

appeal are taxed half to the appellant and half to the appellee

Mother.   This case is remanded to the trial court for the

enforcement of the trial court’s order and collection of costs

assessed below, all pursuant to applicable law.



                                     __________________________
                                     Charles D. Susano, Jr., J.

CONCUR:




                                 7
_______________________
Don T. McMurray, J.


_______________________
William H. Inman, Sr.J.




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