                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                              OCTOBER 25, 2011 Session

       MARK PATRICK JONES v. JENNIFER JONES SMTIH, ET AL.

           Direct Appeal from the Chancery Court for Henderson County
                      No. 19977    James Butler, Chancellor


              No. W2010-01160-COA-R3-CV - Filed December 12, 2011


Paternal Grandparents filed a motion to intervene in a divorce action between Mother and
Father, seeking custody of the parties’ two minor children. The trial court ultimately
awarded custody to Mother and ordered Grandparents to pay a portion of Mother’s attorney’s
fees and costs. Grandparents appeal, arguing that Tennessee Code Annotated section 36-5-
103(c) only provides for awards of attorney’s fees against spouses in a custody matter, and
therefore, the trial court was not authorized to order them to pay Mother’s attorney’s fees.
We affirm.


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

A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which D AVID R. F ARMER,
J., and H OLLY M. K IRBY, J., joined.

K. Michelle Morris, Lexington, Tennessee, for the appellants, Harold and Maryann Jones

Lanis L. Karnes, Jackson, Tennessee, for the appellee, Jennifer Jones Smith
                                     MEMORANDUM OPINION 1

                                I.   F ACTS & P ROCEDURAL H ISTORY

       In the midst of a divorce proceeding between Mark Patrick Jones (“Father”) and
Jennifer Jones (“Mother”), Harold and Maryann Jones (“Grandparents”) filed a petition to
intervene in order to seek custody of the parties’ two minor children. Grandparents were
permitted to intervene, and the proceedings basically devolved into a custody battle between
Mother and Grandparents.2 The custody matter was tried over the course of twelve days,
after which the trial court dismissed Grandparents’ petition and named Mother primary
residential parent. The court also determined that it was appropriate to order Grandparents
to pay a portion of Mother’s attorney’s fees pursuant to Tennessee Code Annotated section
36-5-103(c). Mother sought to recover approximately $98,000 in attorney’s fees and
expenses in addition to discretionary costs. The trial court ultimately ordered Grandparents
to pay $60,000 of Mother’s attorney’s fees, expert witness fees in the amount of $3,718.00,
and discretionary costs in the amount of $2,325.06, for a total award against the Grandparents
of $66,043.06. Grandparents timely filed a notice of appeal.

                                            II.   D ISCUSSION

       In Tennessee, the recovery of attorney’s fees in custody matters has been authorized
by statute for many years. Deas v. Deas, 774 S.W.2d 167, 169 (Tenn. 1989). Tennessee
Code Annotated section 36-5-103(c) provides:

              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


       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.
       2
           Mother and Father stipulated to grounds for divorce and settled their property and support issues.

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       discretion of such court.

“There is no absolute right to such fees, but their award in custody and support proceedings
is familiar and almost commonplace.” Deas, 774 S.W.2d at 170.

       Grandparents argue on appeal that section 36-5-103(c) only authorizes awards of
attorney’s fees against spouses because the statute states that “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 . . . .” (emphasis added). However, in Toms v. Toms, 98
S.W.3d 140, 145 (Tenn. 2003), our Supreme Court interpreted this statute as authorizing
awards of attorney’s fees against other persons as well. In Toms, grandparents were
permitted to intervene in a divorce action in order to seek custody of the parties’ child. Id.
After the mother was successful in defending against the grandparents’ petition for custody,
the Supreme Court determined that Tennessee Code Annotated section 36-5-103(c) permitted
an award of her attorney’s fees against the intervening grandparents. Id. The Court quoted
the statutory language providing that “the spouse or other person” to whom custody is
awarded may recover attorney’s fees “from the other spouse,” and then explained:

               From this language, it is clear that the spouse to whom custody is
       awarded may recover attorney's fees from the other spouse. It is also clear that
       a third person to whom custody is awarded may recover attorney's fees. In this
       case, however, the spouse having custody is seeking to recover attorney's fees
       from a third party intervenor seeking custody. We conclude that the statutory
       language supports such an award of attorney's fees.

               . . . Had Grandparents prevailed in this Court, they would have been
       entitled to recover attorney's fees from Mother, Father, or both under
       Tennessee Code Annotated section 36-5-103(c). See D v. K, 917 S.W.2d 682,
       686 (Tenn. Ct. App. 1995) (construing Tennessee Code Annotated section 36-
       5-103(c) to allow for fees on appeal). We conclude that parties to whom
       attorney's fees may be awarded pursuant to this statute may also have attorney's
       fees awarded against them when their petition is unsuccessful.

Toms, 98 S.W.3d at 145.

       In the case at bar, Grandparents acknowledge the Supreme Court’s decision on this
issue in Toms, but they argue that Toms was wrongly decided. Despite Grandparents’
disagreement with Toms, however, this Court defers to and is bound by the rulings of our
Supreme Court. Once the Tennessee Supreme Court has addressed an issue, its decision is
binding on the lower courts, which have no authority to overrule or modify the Supreme

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Court’s opinions. Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 430
(Tenn. 2011). If Grandparents wish to pursue this matter further, they must seek review from
the Supreme Court.

        Grandparents alternatively argue that Toms is only applicable to awards of attorney’s
fees incurred on appeal. We recognize that after the Supreme Court interpreted section 36-5-
103(c) in Toms, it went on to award the mother her attorney’s fees on appeal. However,
there is nothing in the Court’s discussion, or in the statute, to indicate that the Court’s
interpretation of the statute would only apply to awards on appeal. Therefore, for the reasons
stated in Toms, we conclude that the trial court was authorized to order Grandparents to pay
Mother’s attorney’s fees pursuant to Tennessee Code Annotated section 36-5-103(c), and its
award is hereby affirmed.

                                    III.   C ONCLUSION

        For the aforementioned reasons, we affirm the decision of the chancery court. Costs
of this appeal are taxed to the appellants, Harold and Maryann Jones, and their surety, for
which execution may issue if necessary.

                                                   _________________________________
                                                   ALAN E. HIGHERS, P.J., W.S.




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