                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                   AUGUST 7, 2003 Session

    IRBY C. SIMPKINS, JR. v. PEACHES G. BLANK, formerly Simpkins

                  Direct Appeal from the Circuit Court for Davidson County
                           No. 00D - 156   Walter C. Kurtz, Judge



                  No. M2002-02383-COA-R3-CV - Filed December 30, 2003


This case involves an appeal from a grant of summary judgment equitably dividing a tax refund of
the parties and refusing to reopen the parties’ marital dissolution agreement. In addition, appellant
contends the trial court erred by awarding attorney’s fees to appellee for issues relating to child
support litigated below. For the following reasons, this Court affirms the decision of the trial court.


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

ALAN E. HIGHERS, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and DAVID R. FARMER , J., joined.

Rose Palermo, Denty Cheatham, Nashville, TN, for Appellant

Robert J. Walker, Clisby Hall Barrow, Nashville, TN, for Appellee

                                             OPINION

                                  Facts and Procedural History

        On June 22, 2000, a divorce decree was entered by the circuit court of Davidson County
dissolving the marriage of Irby Simpkins, Jr. (“Simpkins”) and Peaches G. Blank (formerly Simpkins
but referred to herein as “Blank”). This decree approved the parties’ Marital Dissolution Agreement
(“MDA”), settling property, alimony, child custody and child support issues between the parties.

        At the time the parties reached a settlement on the terms of the MDA in June 2000, they had
not yet filed their joint income tax return for 1999. However, the certified public accountant for the
parties, Larry Carter (“Carter”), determined that the parties would have a loss, primarily caused by
losses of Simpkins’ business, Hendersonville Marine, that could be carried back to a preceding year
for a tax refund. Such procedure was not unfamiliar to either Simpkins or Blank because they had
used the same method of carrying back losses from the previous year when they filed their 1998 tax
return. For their 1998 return, the parties sustained a loss which was carried back to the taxes paid
on the 1996 and 1997 tax returns resulting in a refund.

        The joint 1999 tax return of the parties was prepared by Carter and filed on October 15, 2000,
after the parties had already drafted their MDA. The parties did not elect to carry the loss forward,
making the loss available to claim a refund for their 1997 tax return. Carter subsequently prepared
a Form 1045 Application for Refund to amend the parties’ 1997 tax return. The refund on the
application was $191,935 (“1997 Tax Refund”). Carter attempted to obtain Blank’s signature before
the December 31, 2000, deadline but was unsuccessful. As a result, the Kraft Brothers accounting
firm prepared a Form 1040X to obtain the refund and requests were made of Blank to sign this form
to obtain the refund. Blank never signed the Form 1040X and left the issue with her attorneys and
accountant.

        Finally, Simpkins, believing the money to be his under the provisions of the MDA relating
to tax refunds of the parties, directed one of his employees, Claudia Allison, who held a written
authorization from Blank to use a stamp bearing Blank’s signature, to stamp the necessary form. A
refund check was received by Simpkins and he again directed Allison to use Blank’s signature stamp
to indorse the check. Simpkins deposited this refund check into his account in May 2001.

       In addition, this case involves an investment Blank made during the course of the marriage
in an entity known as Privatized Management Service Investors, LLC (“PMSI”).1 The cost of
Blank’s investment in PMSI was $500,000. Blank, during the course of the divorce, produced a
copy of the check dated December 16, 1998, in the amount of $500,000. This investment was sold
for over two million dollars after the MDA was entered into and the divorce decree issued.
Simpkins, however, testified under deposition that Blank made representations to him that the PMSI
investment was worth only $50,000.

       In addition to the events above, after the divorce, Simpkins became alienated from his
adopted daughter, Raleigh Anne Simpkins (“Raleigh Anne”). Raleigh Anne is the natural daughter
of Blank and her previous husband, Ed Blank, who died when Raleigh Anne was three years old.

        In response to the above events, Simpkins filed a petition to enforce the final decree of
divorce on July 17, 2001. In his petition, Simpkins asked the trial court to suspend his child support
and private school obligations of the MDA until such time when Blank would encourage Raleigh
Anne to have a relationship with him. Additionally, Simpkins asked the trial court to declare his
entitlement to the entire 1997 Tax Refund. Finally, Simpkins requested the trial court to reopen the
MDA’s property division based on allegations of fraud by Blank when she allegedly misrepresented
the value of the PMSI stock investment. Simpkins later amended his petition, retracting his request
for suspension of his child support obligations under the MDA during Raleigh Anne’s minority and
requesting the trial court terminate his obligations to Raleigh Anne during her majority including


         1
                  Appellant Simpkins also raises the fact that his adopted daughter, Raleigh Anne Simpkins, also made
an investment in PMSI, however, this Court sees no reason to discuss this issue.

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expenses for her college education. A hearing was held on the child support and visitation issues
on April 26, 2002, and the trial court ordered that Raleigh Anne would meet with Simpkins at least
twice a month, while leaving the parties free to schedule any additional visitation.

        On May 30, 2002, Blank filed a motion for summary judgment on the issues of the 1997 Tax
Refund and the PMSI stock owned by Blank. The trial court granted Blank’s motion, refusing to
reopen the MDA on the basis that Blank misrepresented the value of the PMSI stock and dividing
the 1997 Tax Refund between the parties with Blank receiving 65% and Simpkins receiving 35%
of the 1997 Tax Refund. On September 5, 2002, Blank filed a motion to recover the attorney’s fees
she incurred in connection with Simpkins’ attempt to terminate his child support obligations, while
Simpkins similarly filed a motion to recover his legal expenses in November 2002. After taking
affidavits from both parties, the trial court issued an order granting Blank an award of attorney’s fees
in the amount of $18,500 and denying Simpkins the recovery of any fees. Simpkins appealed both
orders, which were consolidated in this appeal, and presents the following issues for this Court’s
review:

        I.      Whether the trial court erred when it found the 1997 Tax Refund was outside
                of the parties’ MDA and, if not, whether it properly divided the refund
                awarding Blank 65% and Simpkins 35%;
        II.     Whether the trial court erred in granting summary judgment on the issue of
                the PMSI stock despite the allegations that Blank misrepresented the value
                of the stock to Simpkins;
        III.    Whether the trial court abused its discretion by awarding Blank $18,500 in
                attorney’s fees.

For the following reasons, we affirm the decision of the trial court.

                                        Standard of Review

        The standard of appellate review for a grant of summary judgment is de novo without a
presumption that the trial court’s conclusions were correct. Webber v. State Farm Mut. Auto. Ins.
Co., 49 S.W.3d 265, 269 (Tenn. 2001) (citing Mooney v. Sneed, 30 S.W.3d 304, 306 (Tenn. 2000)).
When a court considers a motion for summary judgment, it should view the evidence “in the light
most favorable to the nonmoving party and must also draw all reasonable inferences in the
nonmoving party’s favor.” Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000) (citing
Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn. 1997); Byrd v. Hall, 847 S.W.2d 208, 210-11 (Tenn.
1993)). “Courts should grant a summary judgment only when both the facts and the inferences to
be drawn from the facts permit a reasonable person to reach only one conclusion.” Id. (citing McCall
v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995); Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995)).

       The interpretation of a written contract, including a marital dissolution agreement, is a matter
of law and this Court reviews such questions de novo affording the trial court’s conclusions no
presumption of correctness. Gray v. Estate of Gray, 993 S.W.2d 59, 63 (Tenn. Ct. App. 1998)


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(citing Union Planters Nat’l Bank v. Am. Home Assurance Co., 865 S.W.2d 907, 912 (Tenn. Ct.
App. 1993)). Awards of attorney’s fees pursuant to Tenn. Code Ann. § 36-5-103(c) (2003) are
within a trial court’s discretion and, therefore, this Court reviews such an award under an abuse of
discretion standard of review. Salisbury v. Salisbury, 657 S.W.2d 761, 770 (Tenn. Ct. App. 1983)
(citing Grant v. Grant, 286 S.W.2d 349, 350 (Tenn. Ct. App. 1954)).

                                       The 1997 Tax Refund

        Appellant Simpkins first argues the trial court erred when it decided that the 1997 Tax
Refund did not fall within the scope of the MDA between the parties. “The cardinal rule for
interpretation of contracts is to ascertain the intention of the parties and to give effect to that
intention, consistent with legal principles.” Bob Pearsall Motors, Inc v. Regal Chrysler-Plymouth,
Inc., 521 S.W.2d 578, 580 (Tenn. 1975) (citing Petty v. Sloan, 277 S.W.2d 355 (Tenn. 1955)).
Courts are to enforce a contract according to its plain terms, and the language in a contract must be
understood in its plain, ordinary and popular sense. Id. (citing Eleogrammenos v. Standard Life Ins.
Co., 149 S.W.2d 69 (Tenn. 1941); Guardian Life Ins. Co. v. Richardson, 129 S.W.2d 1107 (Tenn.
Ct. App. 1939)). A marital dissolution agreement which acts as a property settlement between a
husband and wife should be construed and interpreted like all other contracts. Gray v. Estate of
Gray, 993 S.W.2d at 63 (citing Towner v. Towner, 858 S.W.2d 888 (Tenn. 1993); Bruce v. Bruce,
801 S.W.2d 102, 105 (Tenn. Ct. App. 1990)). The Tennessee Supreme Court has also cited with
approval this proposition from the Restatement of Contracts:

       In applying the appropriate standard of interpretation even to an agreement that on
       its face is free from ambiguity it is permissible to consider the situation of the parties
       and the accompanying circumstances at the time it was entered into–not for the
       purpose of modifying or enlarging or curtailing its terms, but to aid in determining
       the meaning to be given to the agreement.

Restatement of Contracts, § 235(d).

       The MDA between the parties discusses tax refunds in a select few paragraphs. First, in
paragraph 18, it states the following:

       18. TAX REFUND. The parties’ 1996 Federal income tax refund, their 1997
       Federal income tax refund, and their North Carolina state income tax refund shall be
       awarded to Husband, free and clear of claims by Wife. These refunds have
       previously been deposited into an interest bearing escrow account in Husband’s name
       by agreement between the parties’ counsel. Husband shall be awarded the entire
       balance of this account. The balance of this account at the present time is
       approximately $413,000.

Paragraph 20 of the MDA further states:



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        20. TAX FILINGS. The parties shall file a joint tax return for the 1999 tax year.
        The parties shall share pro rata, based on income, any additional tax obligation owed
        for 1999. Husband shall be awarded the refund, if any, due upon the filing of the
        return. Husband shall assume responsibility and liability for all tax obligations,
        including penalties and interest, which are owed by them or which may be thereafter
        imposed upon them for tax years in which they file or have filed joint federal and/or
        state income tax returns.

Paragraph 25 of the MDA provides that such agreement is intended to be a “final settlement of all
property rights and support rights and obligations of the respective parties.” Finally, Paragraph 34
of the MDA states that “[t]he only joint debts or joint potential financial obligations, if any, owed
by the parties are those related to their joint tax returns, for which Husband shall assume
responsibility and liability.” We hold that the plain language of this MDA does not account for a
refund due to an amendment of the parties’ 1997 joint income tax return.

        First, Simpkins argues the trial court erred by failing to consider all the provisions of the
contract together. Instead, Simpkins asserts, the trial court focused on paragraph 18 of the MDA to
find that the 1997 Tax Refund is without the MDA. Though the trial court, at the hearing on this
matter, does specifically mention paragraph 18, it also states that the 1997 Tax Refund is “not within
the contemplation of the Marital Dissolution Agreement” evidencing the trial court’s consideration
of the agreement as a whole.

          Even assuming, arguendo, that the trial court did not consider the contract as a whole, this
Court reaches the same conclusion upon examination of the entire MDA. Paragraph 18, though it
does state that Simpkins is to receive the parties’ 1997 federal income tax refund, further describes
this refund later in the paragraph as part of the balance of the interest bearing escrow account.
Paragraph 18 states “these refunds,” in reference to the 1996 tax refund, 1997 tax refund and the
North Carolina state tax refund, are presently in an account in the amount of $413,000. Next,
Paragraph 20 states that Simpkins shall be awarded the refund, if any, due upon the filing of the 1999
return. In its plain terms, this means that Simpkins was entitled to any tax refund from filing a joint
1999 return. However, in this case, no refund was due upon the filing of the 1999 tax return. Here,
the 1999 tax return only yielded a loss that Simpkins could carry forward or back. The refund at
issue in this case was due upon filing an amended 1997 tax return and not the 1999 return. Though
it is true that Simpkins is saddled with the liability of any tax obligations of the parties, this does not
necessarily mean, conversely, Simpkins was intended to enjoy all the benefits. Finally, we recognize
the MDA between the parties was meant to be a final property settlement. However, by its nature,
an MDA is meant to be a final settlement of the property of the marriage. This provision does not
require this Court to find that an item of marital property, that arose after the MDA was written, is
within the MDA’s scope.

        Appellant Simpkins also argues that the trial court erred by failing to consider the
circumstances surrounding the MDA when it interpreted the contract. Upon our review of the
record, we find no merit in this argument. Simpkins relies on testimony by the parties’ accountant,


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Larry Carter, who stated in his affidavit that, prior to the drafting of the MDA, the parties had
utilized the use of a carry-back loss the year before for their 1998 tax return and were familiar with
this method of obtaining a refund. Carter also stated that he had informed Blank prior to the drafting
of the MDA that Simpkins’ business, Hendersonville Marine, was “hemorrhaging” and would allow
the parties to carry-back their losses as they had done before. Therefore, as Simpkins argues, the
parties meant to include any refund obtained by utilizing a carry-back loss when the MDA states that
“[t]he parties shall file a joint tax return for the 1999 year” and “Husband shall be awarded the
refund, if any, due upon the filing of the return.” We hold that Appellant Simpkins seeks to enlarge
the terms of the MDA rather than aid in determining its meaning with this argument and, therefore,
this argument must fail. By its plain terms, the MDA, in paragraph 20, considers the refund from
the joint 1999 tax return only and mentions neither a refund as a result of a carry-back loss nor a
refund from an amended 1997 tax return. If Simpkins and Blank were aware that such a loss and
refund was imminent, it stands to reason that the parties in the MDA would have stated in plain
terms who was entitled to this amount. Therefore, we affirm the trial court’s interpretation of the
MDA and now turn to the question of whether the court below abused its discretion in its division
of the tax refund.

        Appellant Simpkins argues the trial court erred by reopening the MDA when it awarded
Blank a portion of the 1997 Tax Refund. While it is true that normally, as our Supreme Court stated
in Johnson v. Johnson, 37 S.W.3d 892, 897 (Tenn. 2001), there cannot be a post judgment
modification of an MDA, as we stated above, this tax refund is not included in the MDA and,
therefore, the court below was not modifying the terms of that agreement.

        Simpkins also argues that the trial judge erred when it considered his unauthorized use of
Blank’s signature stamp in violation of Tenn. Code Ann. § 36-4-121 (2003) which states that a trial
court must equitably divide the marital property “without regard to marital fault in proportions as
the court deems just.” The use of the signature stamp by Simpkins was not the fault that led to the
dissolution of the marriage in this case and, therefore, we hold the trial court did not err on this basis.

         Finally, Appellant Simpkins argues the trial court abused its discretion by awarding 65% of
the 1997 Tax Refund to Blank, leaving him only 35%. Specifically, Simpkins argues that the trial
court failed to equitably divide the 1997 Tax Refund and instead only focused on the fact that
Simpkins used Blank’s signature stamp without Blank’s authorization. Upon our review of the
record, we find this argument to be without merit. First, we are reminded that an equitable
distribution does not necessarily mean an equal distribution. Manis v. Manis, 49 S.W.3d 295, 306
(Tenn. Ct. App. 2001) (citing Kinard v. Kinard, 986 S.W.2d 220, 230 (Tenn. Ct. App. 1998)). While
it is true that the trial court did consider Simpkins’ unauthorized use of Blank’s signature stamp to
sign the amended tax return, the letter for the address change, and the tax refund check, nothing in
Tenn. Code Ann. § 36-4-121(c) (2003) precludes the trial court from considering such an act. That
statute directs courts to consider all “relevant factors” and then proceeds to list those factors which
are included. Tenn. Code Ann. § 36-4-121(c) (2003). In addition, at the conclusion of the July 12,
2002, hearing, the trial court stated that it considered division of the tax refund “in light of the
division of the whole marital property in this case.” Given the wide discretion afforded trial courts


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in property divisions, Appellant Simpkins is unable to persuade us that reversal is proper. After
reviewing the record, this Court holds that the trial court did not abuse its discretion by awarding
Blank 65% of the 1997 Tax Refund.

                                          The PMSI Stock

         Appellant Simpkins next argues that the trial court erred when it denied him the opportunity
to reopen the MDA when there was evidence that Blank had misrepresented the value of one of her
assets: the PMSI stock. We begin by noting that Simpkins was unable to pursue this action under
Rule 60.02(2) of the Tennessee Rules of Civil Procedure because he filed his petition more than one
year after the final divorce decree. Therefore, Simpkins brought this as an independent action to set
aside a judgment based on fraud. In such an independent action, the complaining party must prove
extrinsic, rather than intrinsic, fraud. New York Life Ins. Co. v. Nashville Trust Co., 292 S.W.2d 749
(Tenn. 1956). Prior to the adoption of Rule 60.02(2), one complaining of intrinsic fraud was
required to prove such fraud at trial, in a motion for a new trial, or on appeal. Noll v. Chattanooga
Co., Ltd., 38 S.W. 287, 290-91 (Tenn. Ct. Ch. App. 1896); Schorr v. Schorr, No. 02A01-9409-CH-
00217, 1996 WL 148613, at *3 (Tenn. Ct. App. March 29, 1996). Rule 60.02(2) alleviated the
harshness of the common law rule by allowing complainants a year after a final judgment to set such
judgment aside for intrinsic fraud. Tenn. R. Civ. Pro. 60.02(2). Extrinsic fraud, on the other hand,
has never required proof at the initial trial or its appeal. The reasoning for this difference in
treatment lies in the distinction between these two types of fraud.

        Extrinsic fraud concerns conduct extrinsic or collateral to the issues decided in a case.
Schorr, 1996 WL 148613, at *3 (quoting Thomas v. Dockery, 232 S.W.2d 594, 598 (Tenn. Ct. App.
1950)). “[E]xtrinsic fraud involves deception as to matters not at issue in the case which prevented
the defrauded party from receiving a fair hearing.” Noles v. Earhart, 769 S.W.2d 868, 874 (Tenn.
Ct. App. 1988). “[I]ntrinsic fraud is fraud within the subject matter of the litigation, such as forged
documents produced at trial or perjury by a witness.” Schorr, 1996 WL 148613, at *3 (citing
Dockery, 232 S.W.2d at 598).

        Because intrinsic fraud involves the subject matter of the litigation, the initial trial is the
complainant’s opportunity to expose the wrong. As the Tennessee Court of Chancery Appeals has
stated:

       [W]hen [a complainant] has a trial, he must be prepared to meet and expose perjury
       then and there. He knows that a false claim or defense can be supported in no other
       way; that the very object of the trial is, if possible, to ascertain the truth from the
       conflict of the evidence; and that, necessarily, the truth or falsity of the testimony
       must be determined in deciding the issue.

Noll, 38 S.W. at 291. The complainant has the opportunity to cross examine the fraudulent witness
or present contradictory evidence of his own. Though this may end in harsh results, it is balanced
against the prevention of a greater evil: “[e]ndless litigation, in which nothing [is] ever finally


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determined.” Id. Extrinsic fraud, however, is such that the complainant was not afforded a “fair and
honest opportunity” to present his evidence in a proceeding. New York Life Ins. Co., 292 S.W.2d
at 753. Examples of this type of fraud include false promises of compromise, keeping a party
ignorant of the suit, or where an attorney pretends to serve the interests of one party when he is
serving the other or sells out his client’s interests. Noll, 38 S.W. at 291 (citing U.S. v. Throckmorton,
98 U.S. 61, 66 (1878)). Unlike perjured testimony, this type of fraud cannot be rebutted by
contradictory evidence or cross examination. For this reason, extrinsic fraud is a permissible
independent action to overrule a final judgment.

         In this case, Simpkins asserts that Blank fraudulently misrepresented the value of her PMSI
stock, which is Blank’s separate property. Therefore, as Simpkins argues, the trial court erred when
it refused to reopen the final divorce decree to reevaluate the property settlement between the parties.
We cannot agree. In the parties’ final divorce decree and during the divorce proceedings, the value
of the property of the parties and its division was certainly at issue. Simpkins knew of the PMSI
stock and had an opportunity to investigate its value. Therefore, such fraud is intrinsic, rather than
extrinsic, and the only method by which Simpkins could bring an action to set aside the final divorce
decree would be pursuant to Rule 60.02 rather than in an independent action. As we noted above,
Simpkins was beyond the one-year limitation period. For this reason, we affirm the trial court’s
grant of summary judgment to Blank on the issue of the PMSI stock.

                                           Attorney’s Fees

       Finally, Appellant Simpkins argues that the trial court abused its discretion when it awarded
Appellee Blank $18,500 in attorney’s fees incurred defending the divorce decree for child support.
Tenn. Code Ann. § 36-5-103(c) (2003) states:

        [T]he 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.

The burden of proof to determine what a reasonable attorney fee is rests with the party demanding
the fees, and if a trial court is prepared to set a fee amount without first hearing the demanding
party’s proof, the defending party “must be accorded full opportunity to cross examine [the
demanding party’s] witness and present evidence on that issue.” Wilson Mgmt. Co. v. Star Distribs.
Co., 745 S.W.2d 870, 873 (Tenn. 1988). However, the defending party must request the opportunity
to cross examine such witnesses or offer proof of his own. Sherrod v. Wix, 849 S.W.2d 780, 785
(Tenn. Ct. App. 1992).




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        As noted above, we review the trial court’s award of attorney’s fees under an “abuse of
discretion” standard. Under such review, a trial court’s decision will be upheld if not clearly
unreasonable and reasonable minds can disagree about the decision’s correctness. Roberts v.
Sanders, No. M1998-00957-COA-R3-CV, 2002 WL 256740, at *14 (Tenn. Ct. App. Feb. 22, 2002)
(citing Bogan v. Bogan, 60 S.W.3d 721, 733 (Tenn. 2001); Eldridge v. Eldridge, 42 S.W.3d 82, 85
(Tenn. 2001); State of Tenn. v. Scott, 33 S.W.3d 746, 752 (Tenn. 2000)). A trial court abuses its
discretion when it “applies an incorrect legal standard, reaches a decision that is illogical, bases its
decision on a clearly erroneous assessment of the evidence, or employs reasoning that causes an
injustice to the complaining party.” Id. (citing Clinard v. Blackwood, 46 S.W.3d 177, 182 (Tenn.
2001); Buckner v. Hassell, 44 S.W.3d 78, 83 (Tenn. Ct. App. 2000); In re Paul’s Bonding Co., 62
S.W.3d 187, 194 (Tenn. Crim. App. 2001); Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 709 (Tenn.
Ct. App. 1999)).

        First, Appellant Simpkins argues that Appellee Blank was not entitled to attorney’s fees
under Tenn. Code Ann. § 36-5-103(c) (2003) because he was seeking only to enforce his visitation
time with Raleigh Anne and merely, as a form of relief, prayed the trial court to suspend his child
support obligation until such time as Blank would facilitate and encourage such a relationship. We
disagree. Though Appellant may have sought to improve his relationship with Raleigh Anne, in his
petition he sought to suspend child support payments to coerce Blank into encouraging the
father/daughter relationship. As a result, Blank was required to defend against this petition in order
to prevent the suspension of such child support owed by Simpkins. Had Blank not defended against
this action, Simpkins may have obtained this suspension. Therefore, we cannot say that the trial
court abused its discretion when it found that Appellee Simpkins was entitled to an award of
attorney’s fees.

        Next, Appellant argues that he should have been given the opportunity to cross examine
Blank’s witnesses and present proof on the issue of the reasonableness of the attorney’s fee award.
However, at a hearing on November 1, 2002, counsel of Simpkins agreed to the submission of
affidavits to the trial court as a method of proof. Therefore, the trial court did not err by refusing to
hold a formal hearing on this issue.

         Finally, Appellant contends that there is no proof to justify an award of $18,500 in attorney’s
fees to Appellee Blank. Before the trial court was an itemized list of all fees related to defending
against the Appellant’s suspension of child support petition, affidavits of attorneys stating the
reasonableness of the fees charged by Appellee Blank’s attorneys, the amount of fees charged by
Appellant’s counsel, and copies of Appellee Blank’s bills with certain redactions relating to issues
other than the child support/visitation issue. After our review of the record, this Court cannot say
the trial court abused its discretion when it awarded Appellee Blank $18,500 in attorney’s fees and
accordingly affirm its award.




                                                  -9-
                                            Conclusion

       For the foregoing reasons, we affirm the decision of the trial court. Costs are judged against
Appellant, Irby Simpkins, and his surety, for which execution may issue if necessary.




                                                       ___________________________________
                                                       ALAN E. HIGHERS, JUDGE




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