                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                  April 19, 2011 Session

      ALAN BRADLEY POUNDERS v. TIFFANY WHITE POUNDERS

               Direct Appeal from the Circuit Court for Shelby County
                      No. CT-004907-08     Jerry Stokes, Judge


                No. W2010-01510-COA-R3-CV - Filed August 31, 2011


This is an appeal of an award of attorney fees in a post-divorce matter. The father had filed
a petition to modify the permanent parenting plan, seeking to increase his parenting time and
reduce his child support obligation. Approximately six months later, after Father’s discovery
deposition was taken, he asked the court to dismiss his petition to modify without prejudice.
The trial court dismissed the petition but awarded the mother $20,000 for her attorneys’ fees.
The father appeals, arguing that the trial court lacked authority to award attorney fees and
that the amount awarded was arbitrary and unreasonable. We find that the trial court had the
authority to award attorney’s fees, but due to the lack of findings by the trial court regarding
the reasonableness of the fee award, we vacate the award and remand for further
proceedings.


Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Vacated and
                                    Remanded

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.

Leslie Gattas Coleman, Keating Lowery, Memphis, Tennessee, for the appellant, Alan
Bradley Pounders

Loys A. “Trey” Jordan, III, Joseph B. Baker, Memphis, Tennessee, for the appellee, Tiffany
White Pounders
                                         OPINION

                           I.   F ACTS & P ROCEDURAL H ISTORY

       Alan Bradley Pounders (“Father”) and Tiffany White Pounders (“Mother”) married
in 1996 and had three children. They were divorced on January 7, 2009. The permanent
parenting plan incorporated by the final decree of divorce provided that Father would have
50 days of residential time with the children, but his parenting time was to be supervised due
to Father’s continuing treatment for alcoholism. Mother was to have 315 days of residential
time with the children. The parenting plan required Father to pay $1,045 in child support to
Mother each month.

         Shortly after the divorce, both parties filed petitions for contempt, which were
eventually dismissed by consent. Father also petitioned the court to designate a new
supervisor for his visitation. Then, on August 3, 2009, Father filed a petition to modify the
permanent parenting plan, in which he sought an increase in his parenting time. He alleged
that a material change in circumstances existed, in part, because he was in the recovering
stages of his alcoholism. He further alleged that Mother had been attempting to “frustrate”
his contact with the children and that the parties had disagreements about the parenting
arbitrator who had been chosen to decide issues regarding Father’s supervised visitation.
Father claimed in his petition that he was fully capable of caring for the children, “both
supervised and unsupervised.” Father submitted a proposed parenting plan that would
increase his parenting time with the children to 104 days per year and decrease Mother’s
parenting time to 261 days. Regarding child support, Father’s proposed parenting plan
utilized different figures for the parties’ gross incomes than those that had been used in the
initial parenting plan, and his plan proposed to reduce Father’s child support obligation from
$1,045 per month to $519 per month. Father also requested that he be awarded his attorney’s
fees for presenting the petition to modify.

        Mother’s attorney subsequently withdrew as counsel for Mother, and Mother retained
another attorney, who filed a response in opposition to Father’s petition to modify the
parenting plan. Mother denied that Father was entitled to any relief and requested that the
court award her attorney’s fees and discretionary costs for defending against the petition.
The parties began the process of discovery, and Father’s discovery deposition was taken, at
which he initially insisted that he had been clean and sober for several months with no lapses
in his recovery. However, Mother had previously hired a private investigator to investigate
Father’s activities, and based upon the results of that investigation, her attorney questioned
Father at his deposition about his frequent use of the inhalant nitrous oxide. Father then
admitted to purchasing and inhaling nitrous oxide multiple times a day.



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       Less than one month later, on February 12, 2010, an order was entered by the trial
court which stated that Father desired to dismiss his petition to modify the parenting plan
without prejudice. However, the order provided that the issue of attorney’s fees was reserved
and not dismissed by the order. Mother then filed a motion for attorney’s fees pursuant to
Tennessee Code Annotated section 36-5-103(c), and she attached to her motion the affidavit
of her current attorney and his billing records, in addition to the affidavit of her former
attorney and her billing records. Mother’s current attorney’s affidavit stated that he and
attorneys at his firm had billed 95.8 hours on Mother’s case through February 7, 2010, with
attorney’s fees totaling $26,202.50. Mother estimated in her motion that she would incur an
additional $4,000 in attorney’s fees by the date of the hearing on her motion. The affidavit
and billing records from her previous attorney listed 26.3 hours billed and $8,651 in
attorney’s fees and expenses that Mother had incurred dating back to August of 2009. In
sum, Mother claimed that she had incurred over $38,000 in attorney’s fees, and she asked
that Father be ordered to pay the full amount of the fees she incurred.

        Father filed a response to Mother’s motion for attorney’s fees, in which he argued that
Mother was not entitled to attorney’s fees pursuant to Tennessee Code Annotated section 36-
5-103(c) because she was not a “prevailing party” due to the fact that he voluntarily
dismissed his petition. He also argued that the billing entries submitted by Mother’s
attorneys reflected charges that were not attributable to the petition to modify. Father
submitted the affidavit of another attorney who practices in the area of domestic relations
law, who stated that he had reviewed Mother’s motion and supporting documentation, and
that it was his opinion that only some of the billing entries were related to the petition to
modify, while others were related to other issues in the case. The attorney attached to his
affidavit a copy of the billing entries at issue with a star written beside the entries which he
deemed relevant to the petition to modify.

       The trial court held a hearing on the motion for attorney’s fees, at which it heard
arguments of counsel. However, the court did not hear testimony or receive evidence at the
hearing, as Father had not requested an evidentiary hearing. Counsel for Father argued at the
hearing that only about $9,900 of Mother’s attorney’s fees could be traced to the petition to
modify based on the billing records submitted. Mother’s counsel continued to argue that
Mother should be awarded the total amount of fees she incurred, which exceeded $38,000.
The trial court ultimately awarded Mother $20,000 in attorney’s fees, and Father timely filed
a notice of appeal.




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                                 II.    I SSUES P RESENTED

      On appeal, Father presents the following issues, slightly restated, for review:

1.    Whether the trial court erred in awarding attorney’s fees to Mother when the petition
      to modify was voluntarily dismissed by Father and did not result in a final
      adjudication; and
2.    Whether the trial court abused its discretion by awarding an arbitrary and
      unreasonable amount of attorney’s fees that was not supported by the record.

Both Father and Mother have requested an award of attorney’s fees incurred on appeal. For
the following reasons, we vacate the award of attorney’s fees and remand for further
proceedings consistent with this opinion.

                              III.     S TANDARD OF R EVIEW

       The decision to award attorney fees and the amount of fees awarded are matters
resting within the sound discretion of the trial court. Melvin v. Johnson-Melvin, No.
M2004-02106-COA-R3-CV, 2006 WL 1132042, at *9 (Tenn. Ct. App. Apr. 27, 2006). Our
Supreme Court recently summarized the standard of review applicable to a trial court’s
decision regarding a reasonable attorney’s fee as follows:

              The trial court’s determination of a reasonable attorney’s fee is “a
      subjective judgment based on evidence and the experience of the trier of
      facts,” United Med. Corp. of Tenn., Inc. v. Hohenwald Bank & Trust Co., 703
      S.W.2d 133, 137 (Tenn. 1986), and Tennessee has “no fixed mathematical
      rule” for determining what a reasonable fee is. Killingsworth v. Ted Russell
      Ford, Inc., 104 S.W.3d 530, 534 (Tenn. Ct. App. 2002). Accordingly, 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

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       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, No. M2008-01181-SC-R11-CV, --- S.W.3d ---, 2011 WL
1136245, at *7 (Tenn. Mar. 29, 2011). “Unless it ‘affirmatively appears that the trial court’s
decision was against logic or reasoning, and caused an injustice or injury to the party
complaining,’ the trial court’s exercise of discretion will not be reversed on appeal.” Pace
v. Pace, No. M2009-01037-COA-R3-CV, 2010 WL 1687740, at *12 (Tenn. Ct. App. W.S.
Apr. 26, 2010) (quoting Marcus v. Marcus, 993 S.W.2d 596, 601 (Tenn. 1999)).

                                     IV.   D ISCUSSION

                         A.   Authority to Award Attorney’s Fees

       “In Tennessee, courts follow the American Rule, which provides that litigants must
pay their own attorney’s fees unless there is a statute or contractual provision providing
otherwise.” Taylor v. Fezell, 158 S.W.3d 352, 359 (Tenn. 2005) (citing State v. Brown &
Williamson Tobacco Corp., 18 S.W.3d 186, 194 (Tenn. 2000)). Tennessee Code Annotated
section 36-5-103(c) provides, in relevant part:

       (c) . . . [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.

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, 158 S.W.3d at 359 (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)).

       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.

                                             -5-
M2008-02378-COA-R3-CV, 2009 WL 3230984, at *3 (Tenn. Ct. App. Oct. 7, 2009) (citing
Shofner v. Shofner, 232 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).

       Here, Father argues that the aforementioned statute is inapplicable because it
references suits concerning “custody,” and Father only sought an increase in his parenting
time as opposed to a change in the designation of primary residential parent.1 We reject
Father’s narrow reading of the statute. Tennessee Code Annotated section 36-5-103(c) has
previously been applied in cases involving petitions to modify visitation. See, e.g.,
Demonbreun v. Demonbreun, No. M2004-02105-COA-R3-CV, 2005 WL 3555545, at *8
(Tenn. Ct. App. E.S. Dec. 28, 2005) (noting that an award was authorized under the statute
because visitation is “an obvious aspect of custody”); D v. K, 917 S.W.2d 682, 686 (Tenn.
Ct. App. 1995) (noting that visitation is “an adjunct of custody”); see also Taylor, 158
S.W.3d at 360 (finding an award appropriate where the father “sought to have his parenting
time altered”). As such, the trial court did not lack the authority to make an award pursuant
to Tennessee Code Annotated section 36-5-103(c) simply because Father sought an increase
in parenting time rather than a change in the primary residential parent designation.

       Father also argues that the aforementioned statute does not authorize an award of
attorney’s fees in this case because he voluntarily dismissed his petition prior to a final
adjudication by the trial court. Father claims that there must be a “change or award of child
custody” before attorney’s fees can be awarded. Again, we find no support for Father’s
narrow interpretation of the statute. “The custodial spouse in a divorce case ‘may recover
from the other spouse reasonable attorney’s fees incurred’ in any proceeding involving the
establishment or enforcement of that obligation.” Melvin, 2006 WL 1132042, at *9 (citing
Tenn. Code Ann. § 36-5-103). The relevant statutory language provides 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 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[.]” Tenn. Code Ann. § 36-5-103(c) (emphasis

       1
           Father does not raise this precise argument in his brief, but it was presented at oral argument.

                                                     -6-
added). Here, Father’s petition and proposed parenting plan sought to have his child support
decreased and his parenting time increased. By opposing Father’s petition, Mother was
attempting to enforce the court’s previous child support order, in a suit or action that also
concerned the adjudication of custody.

        The parties have not cited any cases in which a court has considered whether it is
appropriate to award attorney’s fees pursuant to section 36-5-103(c) when a petition for
custody or visitation is voluntarily dismissed prior to a hearing, and we have not encountered
any in our research. However, in Hansen v. Hansen, No. M2008-02378-COA-R3-CV, 2009
WL 3230984, at *3 (Tenn. Ct. App. Oct. 7, 2009), a father voluntarily dismissed his petition
to modify child support at the beginning of the hearing on the matter, and this Court held that
it was appropriate for the trial court to award the mother her attorney’s fees “[i]n light of the
fact that Mother’s counsel had to prepare for the hearing as if the issue of support would be
litigated.” Similarly, in the case before us, we find no abuse of discretion in the trial court’s
decision to award Mother her attorney’s fees that were incurred in preparation of litigating
the issues raised in Father’s petition. One of the benefits of section 36-5-103(c) is that
awarding attorney’s fees to the custodial parent “discourages vexatious petitions by the
noncustodial parent.” Janet Leach Richards, Richards on Tennessee Family Law, § 14-
3(a)(3) (2d ed. 2004). That purpose would not be served if the other spouse could simply
dismiss his or her petition prior to the hearing in order to avoid payment of the custodial
spouse’s attorney’s fees.

        In sum, we find no abuse of the trial court’s discretion in its decision to award Mother
her attorney’s fees, as such an award was authorized by Tennessee Code Annotated section
36-5-103(c).

                                B.     The Amount of Fees Awarded

        Next, Father challenges the amount of attorney’s fees awarded to Mother as arbitrary
and unreasonable. As previously discussed, Mother submitted the affidavit of her current
attorney and his billing records, in addition to the affidavit of her former attorney and her
billing records, in support of her request for the trial court to award her over $38,000 in
attorney’s fees. The billing records were 33 pages in length, and they contained what Mother
estimates to be 425 billing entries,2 calculated to the tenth of an hour, regarding the time that
Mother’s attorneys had devoted to her case since August of 2009. (Father’s petition to
modify was filed on August 3, 2009.) In response, Father submitted the affidavit of another
domestic relations attorney who opined that some of the billing entries submitted by Mother’s


        2
           We have not counted the individual billing entries but have no reason to doubt Mother’s estimation
as to the number of entries.

                                                    -7-
attorneys were not related to the petition to modify. He conceded that some of the entries
were relevant, particularly where the billing entry specifically mentioned the petition to
modify. Some other entries were clearly related to the parties’ petitions for contempt, which
had been dismissed by consent, and the attorney marked those entries as irrelevant. The basis
for many of the entries was not readily apparent, however, and the attorney deemed those
entries irrelevant to the petition to modify. For example, general entries such as “Telephone
call to client regarding meeting” or “Telephone call with client concerning history of
litigation, conduct of ex-husband, and issues concerning supervision of parenting time” were
marked as irrelevant and not included in Father’s calculation of awardable attorney’s fees.
In short, Father argued that the billing entries submitted only proved that about $9,900 of the
claimed amount was related to defending against the petition to modify. The trial court
ultimately awarded Mother $20,000 in attorney’s fees, although it did not provide an
explanation as to how it reached that figure. On appeal, Father argues that the $20,000 award
has “no logical basis in the record” and constitutes “a random figure based on nothing before
the Court.” As such, Father claims that the $20,000 award is arbitrary and must be reversed.

       The Eastern Section of this Court considered a similar argument in First Peoples
Bank of Tennessee v. Hill, 340 S.W.3d 398, 410 (Tenn. Ct. App. 2010), after a trial court
simply awarded a certain amount of attorney’s fees without discussing either the amount of
the fees or their reasonableness in its memorandum opinion. When faced with the task of
reviewing such an award on appeal, the Court explained:

               Normally, this court will afford the trial judge who has handled the
       pre-trial proceedings and presided over the trial considerable discretion in
       determining a reasonable attorney's fee. Jerry T. Beech Concrete Contractor,
       Inc. v. Larry Powell Builders, Inc., No. M2001-02709-COA-R3-CV, 2003 WL
       726955 at *3 (Tenn. Ct. App. M.S., filed March 4, 2003). When the trial court
       has exercised its discretion in light of the appropriate factors and found the fee
       to be reasonable, we simply review for abuse of discretion. Id. Where,
       however, there is no finding that the fee is reasonable, and no way to ascertain
       whether the court made the award in light of the appropriate factors, there is
       no way for us to accord the normal deference to the trial court.

                 . . . Where a trial court awards a fee, but there is nothing in the record
       to indicate that the trial court actually evaluated the amount of the fee to see
       if it is reasonable in light of the appropriate factors, the correct approach is to
       vacate the award and “remand [the] case to the trial court for a new
       determination of an attorney’s fee award under [Supreme Court Rule 8, RPC
       1.8] and the applicable case law.” Ferguson Harbour Inc. v. Flash Market,
       Inc., 124 S.W.3d 541, 553 (Tenn. Ct. App. 2003). That is exactly the situation

                                               -8-
        before us. Accordingly, we will vacate the award of attorney’s fees and, rather
        than try to make a determination in the first instance, remand to the trial court
        for determination of a reasonable fee. We express no opinion as to whether
        the fees sought by the Bank . . . are reasonable or not.

Id. In the case before us, the trial court’s order awarding $20,000 in attorney’s fees simply
states the amount of fees being awarded without mentioning their reasonableness, and there
is no way to ascertain whether the court made the award in light of the appropriate factors.3
Based upon the reasoning expressed in Hill, we vacate the trial court’s award and remand for
such other proceedings as are necessary and consistent with this opinion, including a
determination of a reasonable attorney’s fee and findings that make appellate review of the
award possible.

                                         C.     Fees on Appeal

       Both parties have requested an award of their attorney fees on appeal. Tennessee
Code Annotated section 36-5-103(c) also applies to awards on appeal and vests in this Court
the discretionary authority to make such an award in proper cases. Pippin v. Pippin, 277
S.W.3d 398, 407 (Tenn. Ct. App. 2008); see also Shofner v. Shofner, 232 S.W.3d 36, 41
(Tenn. Ct. App. 2007). We find it equitable to decline both parties’ requests for attorney’s
fees on appeal.

                                           V.    C ONCLUSION

       For the aforementioned reasons, we vacate the trial court’s award of attorney’s fees
and remand for further proceedings consistent with this opinion. Costs of this appeal are
taxed equally to the appellant, Alan Bradley Pounders, and the appellee, Tiffany White
Pounders, for which execution may issue if necessary.

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




        3
          At the hearing on the motion for attorney’s fees, no one mentioned the applicable factors for
determining a reasonable fee. The trial judge simply stated at the conclusion of the parties’ arguments, “I’m
going to do this. I’m going to award you an attorney fee, [counsel], of $20,000.”

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