                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                  April 16, 2013 Session

      AMY WHEATLEY SPARKMAN v. JASON AARON SPARKMAN

             Direct Appeal from the Chancery Court for Madison County
                      No. 65747     James F. Butler, Chancellor


                 No. W2012-00405-COA-R3-CV - Filed June 27, 2013


This appeal involves post-divorce proceedings arising out of numerous disputes between the
parties. The only rulings that are challenged on appeal are the trial court’s conclusions that:
(1) Father was required to pay uncovered medical expenses for the children’s counseling,
pursuant to the divorce decree; and (2) Father must pay $14,000 of Mother’s attorney’s fees.
For the following reasons, we affirm the trial court’s decision on both issues.


 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 J. S TEVEN S TAFFORD, J., joined.

David W. Camp, Jackson, Tennessee, for the appellant, Jason Aaron Sparkman

C. Timothy Crocker, Michael A. Carter, J. Noble Grant, III, Ryan L. Hall, Milan, Tennessee,
for the appellee, Amy Wheatley Sparkman
                                          OPINION

                           I.   F ACTS & P ROCEDURAL H ISTORY

       Amy Wheatley Sparkman (“Mother”) and Jason Aaron Sparkman (“Father”) were
married in 1997. They had a daughter in 2004 and a son in 2006. The parties were divorced
by decree in January 2009, when the daughter was four years old and the son was two years
old. Mother was named primary residential parent, and Father had parenting time with the
children one to two nights per week in addition to every other weekend.

        Three months after the final decree of divorce was entered, in April 2009, Mother
filed a complaint for emergency suspension of Father’s parenting time and for an ex parte
order of protection, alleging that Father had sexually abused the parties’ daughter and
possibly the son as well. The trial court entered an ex parte order suspending Father’s
parenting time pending an investigation. The Department of Children’s Services (“DCS”)
investigated the matter and closed the case as unfounded. Following a hearing, the trial court
dismissed the complaint filed by Mother and dissolved the ex parte order.

        Thereafter, Mother filed a petition in general sessions court on behalf of the daughter,
seeking an order of protection against Father and again alleging sexual abuse. An ex parte
order of protection was initially entered, and later in the proceedings, Father was permitted
to have supervised visitation with the children. Mother then filed another motion to cease
visitation making additional allegations of abuse. The general sessions court eventually
determined that the allegations against Father had not been proven, and it dismissed Mother’s
petition. She attempted to appeal the decision to chancery court, but she later dismissed her
appeal.

       On or about October 26, 2009, Mother initiated the proceedings giving rise to this
appeal by filing a petition for contempt against Father. She claimed that Father had failed
to pay various expenses as required by the parenting plan, including $25 for the children’s
extracurricular activities, $110 for private school expenses, and $50 in prescription costs.
Mother sought an order finding Father in contempt and an award of her attorney’s fees.

       In January 2010, Father filed an answer denying that he had failed to pay the
aforementioned expenses, and he filed a counter-petition for contempt, alleging that Mother
had denied him visitation on numerous occasions since the divorce and had made
“unsupported, unfounded, and false” allegations of sexual molestation against him. Father
further alleged that Mother’s pattern of false and malicious accusations against him
“demonstrated a severe lack of parental judgment” and constituted a material change in
circumstances that justified modifying the parenting plan to name him primary residential

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parent. Father alleged that less than a month before Mother filed the first petition alleging
sexual abuse, she had sent him a text message stating, “Unless u give me half income tax, u
will not c the kids. Also, get ready 4 ur name 2 be smeared, u r a money hungry snake who
doesn't deserve my kids, c u n court.” Father’s petition recounted the proceedings that
subsequently took place in chancery court and in general sessions court and alleged that the
“actions of the mother show a complete disregard for the best interest of the children and is
paramount [sic] to child abuse,” such that he should be named primary residential parent.

        During Father’s deposition later that year, in September 2010, Father abandoned his
request to be named primary residential parent. However, he continued to seek a
modification of the parenting plan to the extent that it required him to pay for extracurricular
activity expenses, uncovered medical bills, and private school expenses,1 and he also
continued to pursue his counter-petition for contempt against Mother.

       Mother filed an amended petition for contempt against Father in March 2011 to
update the amounts he owed pursuant to the parenting plan. She alleged that, by that time,
Father owed $540 for extracurricular activity expenses, $3,639 for private school expenses,
and $99 for prescription costs. Mother again requested that Father be held in contempt and
that she be awarded attorney’s fees.

       In July 2011, Mother filed a petition to modify the parenting plan, seeking to reduce
Father’s parenting time by eliminating his weeknight visitation, and to increase his child
support obligation. Mother also sought an award of attorney’s fees.

        Following a hearing on all of these matters in November 2011, the trial court entered
an order ruling in Mother’s favor on almost all of the issues. The trial court found Father in
willful civil contempt due to his failure to comply with the parenting plan, in that he had
failed to pay $8,218 in private school expenses, $600 in extracurricular activity expenses,
$99 in prescription costs, and $3,462 in uncovered medical expenses incurred for counseling
for the children. The trial court denied Father’s request to modify the parenting plan with
regard to his obligation to pay the various expenses, and it noted that Father had withdrawn
his request to be named primary residential parent prior to trial. As for Father’s counter-
petition for contempt against Mother, the trial court found, “There was no proof that
[Mother] maliciously or willfully withheld parenting time or that she did not act in good faith
based on the information she had before her.” Accordingly, the court declined to find Mother
in contempt. The trial court granted Mother’s petition to modify to eliminate Father’s


        1
          The trial court’s letter ruling explained that Father’s request for modification of the provisions
regarding expenses was not included in his written petition, but at the hearing, the issue was “testified to by
Father and defended by Mother.”

                                                     -3-
weeknight visitation. The court found that both parties’ incomes had increased, and it
recalculated the child support obligation owed by Father and increased it accordingly. The
court eliminated Father’s obligation to pay Mother’s Day Out expenses because the children
were in school. Finally, the trial court ordered Father to pay $14,000 of Mother’s attorney’s
fees. Father timely filed a notice of appeal.

                                   II.     I SSUES P RESENTED

       On appeal, the issues presented by Father are:

1.     Whether the trial court erred in requiring Father to pay “counseling fees for treatment
       of alleged sexual abuse that was never proven,” and
2.     Whether the trial court erred in ordering Father to pay $14,000 of Mother’s attorney’s
       fees “on the basis that Father withdrew his petition for custody.”

Mother seeks an award of attorney’s fees on appeal. For the following reasons, we affirm
the trial court’s order with regard to the counseling expenses and the award of attorney’s
fees. We decline to award attorney’s fees to Mother on appeal.

                                         III.   D ISCUSSION

                                 A.       Counseling Expenses

       Father argues that he should not have been required to pay for counseling for the
children because it was necessitated by Mother’s “unfounded allegations of sexual abuse.”
He presents no further argument with regard to this issue.

         The permanent parenting plan entered at the conclusion of the divorce proceedings
provided, “Uncovered reasonable and necessary medical, dental, orthodontic, and optical
expenses, which may include but is not limited to, deductibles or co-payments, eyeglasses,
contact lens, prescriptions, routine annual physicals, and counseling will be paid by Father.”
(emphasis added). At the hearing in this matter, Mother testified that DCS recommended
that the children obtain counseling during the initial investigation of the allegations of abuse.
A representative of DCS similarly testified that counseling was recommended. We presume
that it is Father’s position that the counseling expenses should not be considered “reasonable
and necessary” because the allegations were eventually deemed unfounded. Father notes
Mother’s text messages and suggests that she fabricated the allegations. However, during
the proceedings in which the trial court dissolved the ex parte order of protection and
dismissed Mother’s complaint containing the allegation of abuse, the trial court specifically
found that “[a]lthough accusations have been presented that the allegations are related to a

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failure to share a tax refund, the court does not find this to be the case.” During the hearing,
the trial judge explained:

                The mother rightfully asked DCS to investigate this. DCS is trained in
        this area. They deal with issues like this on a daily basis. They conducted their
        investigation. They followed the protocol. They did a caseworker interview.
        They did what we also know as – is known as a forensic interview, which was
        done by a person who is trained to ferret out these things from small children.
        And you've got to remember that these are small children. And sometimes
        small children can say things. You don't know where it comes from. But in any
        event, DCS is trained in this. And they performed their investigation, and they
        closed the case as an unfounded allegation.
                The Court does not believe that the tax refund and the Sexual Abuse
        allegations are connected. I don't believe the mother did that. I don't believe
        that the acrimony that exists between the parties is the source of the
        allegations. I believe that the mother told the truth when she said what she said
        that the child may have said to her.
                At the same time, I'm not convinced that the father is the one that has
        done anything. I'm not sure that there is a perpetrator. . . .

When specifically considering whether Father should be responsible for the counseling bill
that was incurred, the trial court similarly found, in its letter ruling, that “There were
allegations made against the Father that were ultimately dismissed. However, Mother did
what she is required to do and is not in a position to ignore the child's statements. She
followed procedure.” Considering the trial court’s findings on this issue, and its opportunity
to adjudge the parties’ credibility throughout these proceedings, we will not disturb the trial
court’s implicit finding that the counseling expenses were in fact “reasonable and necessary,”
and therefore, Father was obligated to pay them pursuant to the parenting plan.2

                                         B.    Attorney’s Fees

       “The decision to award attorney fees and the amount of fees awarded are matters
resting within the sound discretion of the trial court.” Pounders v. Pounders, No. W2010-
01510-COA-R3-CV, 2011 WL 3849493, at *3 (Tenn. Ct. App. Aug. 31, 2011) (citing Melvin
v. Johnson-Melvin, No. M2004-02106-COA-R3-CV, 2006 WL 1132042, at *9 (Tenn. Ct.


        2
           We recognize that some of the counseling expenses for the children were due to other issues, such
as post-divorce anger, and therapy for an issue involving the son’s diet. Father does not mention these
subjects on appeal; he only disputes being required to pay for counseling for the alleged sexual abuse. As
a result, we will not discuss these expenses further.

                                                    -5-
App. Apr. 27, 2006)). Our Supreme Court recently summarized our standard of review in
this context as follows:

       [A] determination of attorney's fees is within the discretion of the trial court
       and will be upheld unless the trial court abuses its discretion. Kline v. Eyrich,
       69 S.W.3d 197, 203 (Tenn. 2002); Shamblin v. Sylvester, 304 S.W.3d 320, 331
       (Tenn. Ct. App. 2009). We presume that the trial court's discretionary decision
       is correct, and we consider the evidence in the light most favorable to the
       decision. Henderson v. SAIA, Inc., 318 S.W.3d 328, 335 (Tenn. 2010);
       Keisling v. Keisling, 196 S.W.3d 703, 726 (Tenn. Ct. App. 2005). The abuse
       of discretion standard does not allow the appellate court to substitute its
       judgment for that of the trial court, Williams v. Baptist Mem'l Hosp., 193
       S.W.3d 545, 551 (Tenn. 2006); Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927
       (Tenn. 1998), and we will find an abuse of discretion only if the court “applied
       incorrect legal standards, reached an illogical conclusion, based its decision on
       a clearly erroneous assessment of the evidence, or employ[ed] reasoning that
       causes an injustice to the complaining party.” Konvalinka v. Chattanooga-
       Hamilton Cnty. Hosp. Auth., 249 S.W.3d 346, 358 (Tenn. 2008); see also Lee
       Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010).

Wright ex rel. Wright v. Wright, 337 S.W.3d 166, 176 (Tenn. 2011).

        Mother requested an award of attorney’s fees in her two petitions for contempt and
in her petition to modify the parenting plan. After the final hearing in this matter, a late-filed
exhibit was submitted containing Mother’s attorney’s affidavit and itemized billing statement
of nearly forty pages, which listed 79.6 hours of billable time, and a total of over $21,000 in
fees and expenses incurred by Mother. The trial court’s final order stated the following, with
regard to attorney’s fees:

       Plaintiff[’]s request for attorney's fees is granted. Defendant shall pay
       Plaintiff[’]s attorney's fees requested in her Motion for Civil Contempt and
       same shall be addressed at the end of this Order;
       ...
       Plaintiff[’]s request for an award for attorney's fees is granted in the amount
       of $14,000.00;
       ...




                                               -6-
The trial court attached to its final order a letter ruling that discussed the basis for the award
of attorney’s fees in more detail:

       Attorney's fee request: Mother has requested an award of attorney's fees.
       Attorney's fees are authorized pursuant to Tennessee Code Annotated §
       36-5-103 and Tennessee Code Annotated § 29-9-104 as an element of damages
       in bringing an action to enforce the Court's Order. All of the above matters
       relate to items which are in the nature of support. Mother has been successful.
       Therefore, the Court will award Mother an attorney's fee which will be
       discussed at the end of this letter.
       ...
       The more difficult issue in this case is the Mother's request for an award of
       attorney's fees. The Court has granted that request. The Court is aware further
       that the Father had filed for custody which prompted additional expense on the
       Mother's part in defending that Motion. Father did not withdraw that Motion
       until most of the time had already been spent. Mother's attorney has presented
       a detailed list of the items on which time was spent. The Court has examined
       same. It is unfortunate that so much time was spent in preparation for all four
       cases, particularly the Father's request to change custody which presents a
       major issue for both sides. Although the request was withdrawn shortly before
       the trial, the work had already been done. Considering the factors set forth in
       Rule 1.5 of the Tennessee Supreme Court Rules, the Court grants an attorney's
       fee award to the Mother in the amount of $ 14,000.00.

On appeal, Father challenges the propriety of awarding attorney’s fees, on numerous
grounds. He claims that an award of Mother’s attorney’s fees was improper because she
“initiated the circumstances that began the process” by making unfounded allegations of
abuse. Father denies that the award of attorney’s fees was made because of Mother’s
successful petition for contempt, and he contends that the trial court awarded Mother her
attorney’s fees solely because he filed a petition to modify the parenting plan and later
withdrew it. Father argues that Mother’s behavior necessitated that he file the petition to
modify and that he only withdrew his petition when Mother finally stopped making false
accusations against him. Father claims that awarding Mother her attorney’s fees rewards her
behavior and, at the same time, punishes him for withdrawing his petition. In response,
Mother argues that an award of attorney’s fees was proper either because she was forced to
file a petition for contempt due to Father’s nonpayment of numerous expenses or because she
was attempting to enforce the parenting plan throughout these proceedings, making an award
proper pursuant to Tennessee Code Annotated section 36-5-103(c).

       The trial court’s final order, read in conjunction with its letter ruling, indicates that

                                               -7-
the reason for the trial court’s award of attorney’s fees was because Mother was required to
initiate these proceedings in order to enforce the court’s prior order pertaining to support,3
in addition to the fact that Mother was required to prepare a defense in response to Father’s
petition to modify the parenting plan, which he later withdrew. Certainly these are valid
grounds for an award of attorney’s fees. 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 discretion of such
        court.

Thus, “[i]n cases involving the custody and support of children, it has long been the rule in
this State that 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, 359 (Tenn. 2005)
(quotation omitted). There is no absolute right to such fees, but “ ‘their award in custody and
support proceedings is familiar and almost commonplace.’” Id. (quoting Deas v. Deas, 774
S.W.2d 167, 170 (Tenn. 1989)).

       We reject Father’s suggestion that it was improper for the trial court to award
attorney’s fees to Mother because he filed a petition to modify the designation of primary
residential parent and later withdrew it. As we explained in Pounders, 2011 WL 3849493,
at *4:

               Tennessee Code Annotated section 36-5-103(c) “has been interpreted
        as allowing for the award of attorney's fees to a party defending an action to
        change a prior order on the theory that the defending party is enforcing the
        prior order.” Hansen v. Hansen, No. M2008-02378-COA-R3-CV, 2009 WL
        3230984, at *3 (Tenn. Ct. App. Oct. 7, 2009) (citing Shofner v. Shofner, 232


        3
           This Court has previously described expenses such as uncovered medical expenses as “part and
parcel of [a] child support obligation,” meaning that a spouse who is forced to return to court to ensure that
the children receive such payments can seek to recover his or her attorney’s fees pursuant to Tennessee Code
Annotated section 36-5-103(c). Brown v. Brown, No. W2005-00811-COA-R3-CV, 2006 WL 784788, at *5
(Tenn. Ct. App. Mar. 29, 2006).

                                                     -8-
        S.W.3d 36, 40 (Tenn. Ct. App. 2007); Scofield v. Scofield, No. M2006-00350-
        COA-R3-CV, 2007 WL 624351, at *7 (Tenn. Ct. App. Feb. 28, 2007)).
        Accordingly, “[a] trial court has the authority to award a parent his or her
        attorney's fees incurred in the defense of a petition to modify custody
        provisions of a final decree of divorce.” Maynor v. Nelson, No. M2005-02362-
        COA-R3-CV, 2006 WL 3421288, at *5 (Tenn. Ct. App. Nov. 27, 2006)
        (citing Tenn. Code Ann. § 36-5-103(c)). An award of fees is allowed in this
        situation on the theory that the defending custodial party is enforcing the prior
        order for the benefit of the children. Wilson v. Baines, No. M2009-00249-
        COA-R3-CV, 2009 WL 4175862, at *6 (Tenn. Ct. App. Nov. 25, 2009).

We held in Pounders that an award of attorney’s fees was authorized under section 36-5-
103(c) when one party voluntarily dismissed his petition for modification prior to the hearing,
because the other party had already incurred expenses in preparation of litigating the issues.
Id. at *5. Likewise, Mother incurred attorney’s fees in this matter due to Father’s petition
to modify the designation of primary residential parent that was pending for approximately
eight months before it was withdrawn. The trial court aptly noted that such a request
presented “a major issue for both sides.” Even after this request was withdrawn, Mother was
required to defend against Father’s efforts to modify the parenting plan’s provisions
regarding his payment of extracurricular activity expenses for the children, uncovered
medical costs, and private school expenses.

       Considering Mother’s success in enforcing the trial court’s prior order, and defending
against Father’s efforts to modify it, we find no abuse of the trial court’s discretion in
deciding to award Mother a portion of her attorney’s fees.4




        4
           We note that Father’s brief on appeal did not argue that the amount of attorney’s fees awarded was
unreasonable. He simply argued that any award of fees was inappropriate due to Mother’s conduct. The
only authority cited by Father on appeal was the text of Tennessee Code Annotated section 36-5-103(c). As
a result, we will not review the reasonableness of the amount of fees awarded. We note that, during oral
argument, counsel for Father did suggest that the trial court should have held an evidentiary hearing
regarding the fee award. However, there is no indication that Father requested an evidentiary hearing before
the trial court or otherwise challenged the reasonableness of the attorney’s fees being sought by Mother, so
the trial court was not required to hear proof as to the reasonableness of the fees. See Kline v. Eyrich, 69
S.W.3d 197, 210 (Tenn. 2002); Kahn v. Kahn, 756 S.W.2d 685, 696 (Tenn. 1988); Malibu Equestrian
Estate, Inc. v. Sequatchie Concrete Service, Inc., No. M2005-02954-COA-R3-CV, 2007 WL 2200171, at
*7-8 (Tenn. Ct. App. July 30, 2007). “Absent a request for a hearing by the party dissatisfied by the award,
a trial court is not required to entertain proof as to the reasonableness of the amount of attorney's fees
awarded.” Moran v. Willensky, 339 S.W.3d 651, 664-65 (Tenn. Ct. App. 2010) (citing Richards v. Richards,
No. M2003-02449-COA-R3-CV, 2005 WL 396373, at *15 (Tenn. Ct. App. Feb. 17, 2005)).

                                                    -9-
      Mother has sought an award of attorney’s fees on appeal. Exercising our discretion,
we respectfully deny this request.

                                   IV.   C ONCLUSION

       For the aforementioned reasons, we affirm the decision of the chancery court and
remand for further proceedings. Further, we decline to award attorney’s fees on appeal.
Costs of this appeal are taxed to the appellant, Jason Aaron Sparkman, and his surety, for
which execution may issue if necessary.

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




                                           -10-
