                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                January 23, 2013 Session

     SUSAN CROSBY WILKINSON v. BRADLEY WEBB WILKINSON

               Direct Appeal from the Circuit Court for Shelby County
                      No. CT-00036307      Jerry Stokes, Judge


               No. W2012-00509-COA-R3-CV - Filed February 19, 2013


This is a post-divorce case. Appellee Wife and Appellant Husband entered into a marital
dissolution agreement, which was incorporated, by reference, into the final decree of divorce.
The agreement provided for transitional alimony payments, which would “self-terminate”
upon the occurrence of certain conditions, including cohabitation. Husband developed a
belief that Wife was cohabitating and, relying on the self-termination clause, ceased payment
of spousal support without court intervention. Wife subsequently filed a petition for civil
contempt, seeking a monetary judgment in the amount of alimony arrears and attorney’s fees.
The trial court determined that Husband was not in contempt, but awarded alimony arrears
and attorney’s fees in favor of Wife. Husband appeals. Affirmed and remanded.

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

J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which D AVID R. F ARMER, J.
and H OLLY M. K IRBY, J., joined.

George L. Rice, IV, Memphis, Tennessee, for the appellant, Bradley Webb Wilkinson.

Laura D. Rogers, Memphis, Tennessee, for the appellee, Susan Crosby Wilkinson.

                                         OPINION

        Appellant Bradley Webb Wilkinson (“Dr. Wilkinson”) and Appellee Susan Crosby
Wilkinson (“Ms. Wilkinson”) were married on June 23, 1990. Three children were born to
the marriage (dates of birth: September 14, 1991, June 27, 1993, and August 21, 1997). The
parties were divorced on February 27, 2008 by final decree of the Shelby County Circuit
Court. The divorce decree was precipitated by approximately one year of contentious
litigation between the parties. The parties were eventually able to agree on a permanent
parenting plan, which was entered by the court on February 13, 2008. The parties also
entered into a Martial Dissolution Agreement (“MDA”), which was also approved by the
court on February 13, 2008. The MDA was incorporated into the court’s amended final
decree of divorce, which was entered on March 10, 2008, to wit:

              [T]he parties have made adequate and sufficient provision by
              written Marital Dissolution Agreement for the equitable
              settlement of all property rights between them and the Marital
              Dissolution Agreement is hereby incorporated by reference as if
              copied verbatim.

       In relevant part, the MDA provides:

              Husband will pay to wife as Transitional Alimony Three
              Thousand Dollars ($3,000.00) per month for twenty-four (24)
              months beginning on March 1, 2008 and continu[ing] for
              twenty-three (23) months. After this twenty-four (24) months,
              Husband shall pay One Thousand Five Hundred Dollars
              ($1,500.00) for the following twelve (12) months. Transitional
              Alimony shall be paid for a total of Thirty Six (36) months.
              Said payments will self-terminate upon the death of wife. Said
              payments will self-terminate upon the remarriage of wife.
              Remarriage includes both the ceremonial marriage and
              cohabitation with an unrelated person for a total of thirty (30)
              days. . . .

In addition to the foregoing provision, the MDA also states:

              Should either party incur any expense[s] or legal fees in a
              successful effort to enforce this marital dissolution agreement,
              in whole or in part, the Court shall award reasonable attorney’s
              fees and suit expenses to the party seeking to enforce this
              agreement . . . .

(emphasis in original).

      On April 4, 2011, Ms. Wilkinson filed a petition for civil contempt against Dr.
Wilkinson. In relevant part, the petition avers:

              Dr. Wilkinson has willfully disobeyed the order of the Court

                                             -2-
              even though he was able to comply. Dr. Wilkinson stopped
              paying the court-ordered support [i.e., alimony] as of September
              1, 2008. He even demanded that Ms. Wilkinson refund the
              support she received in May, June, July and August or he would
              withhold the money from his child support payments. Dr.
              Wilkinson stopped paying support based upon evidence
              captured in a private investigator’s video. The video has not,
              however, been provided to Ms. Wilkinson despite her requests
              to see it. Ms. Wilkinson denied that she was living with anyone.

              *                                   *                         *

                     Other than what allegedly appeared in the “surveillance
              video” Dr. Wilkinson refuses to release, Dr. Wilkinson has
              provided no other reason for his contemptuous acts. It is
              believed that he stopped paying the support because he knew
              Ms. Wilkinson lacked the financial resources to enforce the
              Court’s order.

Based upon the provision in the MDA, supra, Ms. Wilkinson asked not only for a finding of
civil contempt, but also for a judgment on arrears and for her attorney’s fees.

      Although Dr. Wilkinson filed a stipulation, on June 22, 2011, stating that he was able
to pay the court-ordered support, in his response to Ms. Wilkinson’s petition for civil
contempt, which was filed on July 1, 2011, Dr. Wilkinson states:

              8. [Dr. Wilkinson] had a reasonable belief that [Ms. Wilkinson]
              was cohabitating with a third party, Lauren Morgan, after
              viewing a private investigator’s report showing the two sharing
              a residence for a total of thirty days, learning that [Ms.
              Wilkinson] was renting said residence in her name, that the
              utilities to said residence were in Lauren Morgan’s name, and
              learning that [Ms. Wilkinson] cancelled her cell phone service
              and added a line onto Lauren Morgan’s cell phone plan.

              9. At this time, the Court’s Order self-terminated alimony.

              *                              *                              *

              11. [Dr. Wilkinson] made his last alimony payment to [Ms.

                                            -3-
              Wilkinson] in August 2008 because alimony had previously
              self-terminated by Court Order.

       On October 17, 2011, Ms. Wilkinson filed a motion for partial summary judgment on
the issue of Dr. Wilkinson’s failure to pay transitional alimony, and for an award of
attorney’s fees. Dr. Wilkinson opposed the motion, which was heard on November 18, 2011.
By Order of December 9, 2011, the trial court denied the motion for partial summary
judgment.

      Both parties filed trial briefs and affidavits evidencing their respective attorney’s fees
and costs. The petition for civil contempt was heard on December 19, 2011. By Order of
February 13, 2012, the court found, in relevant part, that:

              1. Ms. Wilkinson is entitled to receive the remaining 30 months
              of alimony owed in the amount of $72,000.00.

              2. Dr. Wilkinson is not in willful contempt of the Court’s order
              for failing to pay the transitional alimony.

              *                                     *                         *

              5. Ms. Wilkinson is entitled to attorney fees that relate to the
              successful pursuit of past-due alimony in the amount of
              $11,285.50.

Accordingly, Ms. Wilkinson was awarded a total judgment of $83,285.50. The trial court
specifically reserved the issue of discretionary costs. On February 17, 2012, Ms. Wilkinson
filed a motion for discretionary costs. On February 24, 2012, the trial court entered a consent
order, awarding Ms. Wilkinson $1,350.05 in discretionary costs.

       Dr. Wilkinson filed a timely notice of appeal. However, upon review of the appellate
record, this Court determined that the order appealed was not final so as to confer jurisdiction
upon this Court. Tenn. R. App. P. 3(a). Specifically, this Court determined that the trial
court had failed to rule on Dr. Wilkinson’s petition to modify the previous order of the court,
which he had filed on October 26, 2010. Accordingly, on July 6, 2012, this Court entered
a show-cause order, requiring Appellant to obtain a final order in the trial court or to show
cause why the appeal should not be dismissed. In response, Dr. Wilkinson supplemented the
appellate record with a consent order, filed in the trial court on July 13, 2012, which
dismisses Dr. Wilkinson’s petition to modify the previous order of the court. The order is
now final for purposes of appeal.

                                              -4-
       Dr. Wilkinson raises three issues for review as stated in his brief:

              1. Whether the trial court erred in awarding a money judgment
              on a petition for civil contempt without a finding of civil
              contempt.

              2. Whether the trial court erred in awarding a money judgment
              when laches barred the claim.

              3. Whether the trial court erred in awarding attorney’s fees
              pursuant to a Martial Dissolution Agreement in an unsuccessful
              petition for civil contempt.

In the posture of Appellee, Ms. Wilkinson raises the following, additional issues:

              1. Whether Ms. Wilkinson is entitled to a larger award of
              attorney’s fees.

              2. Whether the trial court abused its discretion by denying Ms.
              Wilkinson’s motion for partial summary judgment even though:
              (1) Dr. Wilkinson admitted that he had not paid the alimony
              owed; and (2) Dr. Wilkinson had not made any request to
              modify his alimony prior to the date the last payment of alimony
              was owed.

              3. Whether the trial court abused its discretion when it found
              that Dr. Wilkinson was not in willful contempt for failing to pay
              the alimony he was ordered to pay when the evidence showed
              that: (1) Dr. Wilkinson did not pay the alimony that was
              ordered; (2) Dr. Wilkinson did not have a legal basis not to pay
              the alimony that was owed; and (3) Dr. Wilkinson had the
              ability to pay the alimony that was owed.

              4. Whether Ms. Wilkinson is entitled to an award of attorney’s
              fees for this appeal.

       Because this case was tried by the court sitting without a jury, we review the case de
novo upon the record with a presumption of correctness of the findings of fact by the trial
court. Unless the evidence preponderates against the findings, we must affirm, absent error
of law. See Tenn. R. App. P. 13(d). Furthermore, when the resolution of the issues in a case

                                             -5-
depends upon the truthfulness of witnesses, the trial judge who has the opportunity to observe
the witnesses and their manner and demeanor while testifying is in a far better position than
this Court to decide those issues. See McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn.
1995); Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997). The weight, faith,
and credit to be given to any witness' testimony lies in the first instance with the trier of fact,
and the credibility accorded will be given great weight by the appellate court. Whitaker, 957
S.W.2d at 837; see also Walton v. Young, 950 S.W.2d 956, 959 (Tenn.1997).

                                           I. Laches

       As discussed in 5 Nancy F. MacLean & Bradley A. MacLean, Tennessee Practice:
Civil Procedure Forms § 8.425 (2012):

               Laches is an equitable doctrine that bars an action where a
               party's unexcused or unreasonable delay is prejudicial to its
               adversary. Equity will not intervene when the plaintiff has
               delayed unreasonably in enforcing his or her rights. Hannewald
               v. Fairfield Communities, Inc., 651 S.W.2d 222 (Tenn. Ct.
               App. 1983). In order for laches to be a successful defense, the
               defendant must show not merely the length of time which has
               elapsed, but that "because of such lapse of time, the party
               relying on laches as a defense has been prejudiced by the delay."
               Brister v. Brubaker's Estate, 336 S.W.2d 326, 332 ( Tenn. Ct.
               App. 1960). Prejudice is a required element to the defense of
               laches. Dement v. Kitts, 777 S.W.2d 33 (Tenn. Ct. App. 1989).
                       Note that to give rise to estoppel by delay in asserting a
               legal right, there must be an opportunity to speak or act and an
               obligation or duty to do so. [State ex rel. Grant v. Prograis, 979
               S.W.2d 594 (Tenn. Ct. App. 1997) (long delay in claiming
               retroactive support on behalf of minor child did not work an
               estoppel).]

Id.

       Laches is an affirmative defense under Tennessee Rule of Civil Procedure 8.03:

               In pleading to a preceding pleading, a party shall set forth
               affirmatively facts in short and plain terms relied upon to
               constitute accord and satisfaction, arbitration and award, express
               assumption of risk, comparative fault (including the identity or

                                                -6-
              description of any other alleged tortfeasors), discharge in
              bankruptcy, duress, estoppel, failure of consideration, fraud,
              illegality, laches, license, payment, release, res judicata, statute
              of frauds, statute of limitations, statute of repose, waiver,
              workers' compensation immunity, and any other matter
              constituting an affirmative defense.

Id. As Ms. Wilkinson argues in her brief, it is well-settled that a failure to comply with Rule
8.03 constitutes a waiver of the affirmative defense. See Tenn. R. Civ. P. 12.08; see also
Barker v. Heekin Can Co., 804 S.W.2d 442, 444 (Tenn. 1991). From our review of the
record, there is no indication that Dr. Wilkinson ever raised the defense of laches in the trial
court, nor did the trial court make any specific finding concerning this defense. Although
the record is not completely developed on this subject, at the hearing, the trial court did
inquire, sua sponte, as to why Ms. Wilkinson had waited so long to file her petition for
contempt. Ms. Wilkinson answered that, because Dr. Wilkinson had failed to pay her the
court-ordered support, she was without funds to pursue any recourse in the court. Although
it would appear that Dr. Wilkinson was not prejudiced in that he had the use and control of
the money, while Ms. Wilkinson did not, he argues that he spent the support money on
private school tuition and other items for the children and, was prejudiced (or would be so)
if he was made to pay support arrears to Ms. Wilkinson. Regardless of the parties’ respective
arguments, the fact remains that Dr. Wilkinson failed to raise laches as an affirmative defense
as required under Tennessee Rule of Civil Procedure 8.03. Accordingly, we consider the
defense waived.

                                        II. Contempt

        As a preliminary matter, we note that the alleged contemptuous act in the case
involves Dr. Wilkinson’s suspension of Ms. Wilkinson’s alimony payments. Throughout his
brief, Dr. Wilkinson emphasizes that the alimony provision at issue provides that the alimony
obligation would “self-terminate” upon cohabitation. As is relevant to this appeal, the MDA
states that, “[alimony] payments will self-terminate upon . . . the remarriage of wife.
Remarriage includes . . . cohabitation with an unrelated person for a total of thirty (30) days.
. . .” Despite this language, the trial court found that Dr. Wilkinson was not justified in
suspending alimony payments and ordered Dr. Wilkinson to pay a judgment on the arrearage.
Dr. Wilkinson does not appeal the trial court’s finding that he was in error in suspending the
alimony payments in this case. Thus, the issue of whether a “self-termination” clause in an
MDA allows an obligor spouse to terminate alimony without authorization from the court is
not presented in this appeal. As such, we decline to either approve or disapprove of such
practice. We caution litigants, however, that they rely on “self-terminat[ion]” clauses at their



                                              -7-
peril.1

       Instead of arguing that the trial court erred in concluding that Dr. Wilkinson could not
suspend alimony in this case, Dr. Wilkinson argues that the trial court could not order
payment of arrears in the absence of a finding that he was in civil contempt. We now turn
to address that question.

        Civil contempt is imposed at the insistence and for the benefit of the party who has
suffered a violation of rights and the purpose of civil contempt is to coerce compliance with
the court's orders. Doe v. Bd. of Prof'l Responsibility of Sup.Ct. of Tenn., 104 S.W.3d 465,
473–74 (Tenn. 2003); see also Overnite Transp. Co. v. Teamsters Local Union No. 480, 172
S.W.3d 507, 510 (Tenn. 2005) (stating that a civil contempt action is generally brought to
enforce private rights).2 Civil contempt occurs when a person does not comply with a court
order and an action is brought by a private party to enforce rights under the order that has
been violated. Punishment for civil contempt is designed to coerce compliance with the
court's order and is imposed at the insistence and for the benefit of the private party who has
suffered a violation of rights. Also, in civil contempt cases, the quantum of proof necessary
to convict is a preponderance of the evidence. Doe, 104 S.W.3d at 474 (internal citations
omitted).


          1
          We note that contracting to allow an obligor spouse to terminate alimony based on a contingency,
such as the fact-intensive cohabitation inquiry, without a court order, appears to conflict with established
case law in this area. Specifically, the Tennessee Supreme Court held in Barnes v. Barnes, 193 S.W.3d 495
(Tenn. 2006), that an MDA providing for ongoing alimony is subject to modification only by court order.
Id. at 498. Relying on the rule expressed in Barnes, the Tennessee Court of Appeals held that “alimony over
which the court has continuing statutory power to modify [] loses its contractual nature when merged into
a decree for divorce.” Penland v. Penland, 521 S.W.2d 222, 224 (Tenn. Ct. App. 1975). The alimony in this
case is transitional alimony, see Tenn. Code Ann. § 36-5-121(g)(1), which by contract was subject to
modification upon remarriage or cohabitation. See also Tenn. Code Ann. § 36-5-121(g)(2) (providing that
transitional alimony is unmodifiable unless the obligee lives with a third person, in which case there is a
rebuttable presumption that the obligee is no longer in need of some or all of the alimony award). Thus, it
appears that the court had continuing power to modify the award and the obligation could not be “modified,
restricted, or enlarged, or entirely released upon the consent of the parties” without prior court authorization.
Barnes, 193 S.W.3d at 498.


          2
          The substantive difference between civil contempt and criminal contempt is that criminal contempt
is not used to enforce a private right of a party, instead, criminal contempt is used to "preserve the power and
vindicate the dignity and authority of the law" as well as to preserve the court "as an organ of society." Black
v. Blount, 938 S.W.2d 394, 398 (Tenn. 1996); see also Thigpen v. Thigpen, 874 S.W.2d 51, 53 (Tenn. Ct.
App. 1993). Another substantive difference is that in criminal contempt proceedings, "the defendant is
presumed to be innocent and must be proven guilty beyond a reasonable doubt." Doe, 104 S.W.3d at 474
(citing Shiflet v. State, 400 S.W.2d 542, 543 (Tenn. 1966)).

                                                      -8-
      Here, Dr. Wilkinson argues that, in the absence of a finding that he was in civil
contempt, the trial court cannot enforce his obligation to pay alimony. With respect to Dr.
Wilkinson, his argument is flawed. Tennessee courts have held that a finding of civil
contempt is not a prerequisite to a trial court’s ability to enforce its orders. See, e.g., Dodd
v. Dodd, No. M2011-02147-COA-R3-CV, 2012 WL 3193339, at *4 (Tenn. Ct. App. Aug.
6, 2012) (“Father also takes issue with the money judgments the trial court awarded to
Mother, which, he asserts, flow from the trial court's erroneous findings of civil contempt.
As explained in the preceding section, we have concluded Father was not found to be in civil
contempt. However, that conclusion does not undermine the propriety of the money
judgments awarded to Mother.”) (emphasis added).

        Regardless of whether the trial court erred in failing to find Dr. Wilkinson in contempt
in this case, a contempt finding is not a condition precedent to enforcement of the court’s
order. Tennessee Code Annotated Section 16-1-102 explicitly grants courts of this State the
power to: (1) “[c]ompel obedience to its judgments, orders, and process;” and to (2) [c]ontrol
its process and orders.” See also Dodd, 2012 WL 3193339, at *4. Dr. Wilkinson argues that
Ms. Wilkinson’s petition “was only designated as a petition for civil contempt,” and was “not
a petition for a calculation of arrearages, a petition to have arrearages reduced to judgment,
and/or a petition to enforce contractual obligations.” Respectfully, we disagree. In her
prayer for relief, Ms. Wilkinson clearly asks “[t]hat the amounts owed by Dr. Wilkinson be
reduced to judgment and interest added as allowed by law,” and for an award of her
“attorney’s fees and suit expenses . . . .” From the petition, we conclude that Dr. Wilkinson
was well noticed of the fact that Ms. Wilkinson was seeking monetary damages in this case.
Ms. Wilkinson apparently asks for a finding of contempt in order to facilitate the underlying
purpose of her petition, which is to recoup support arrears. However, because the trial court
has the power and discretion to enforce its orders in the way it deems best, a finding of
contempt was not a mandatory requirement for the award of arrears. Here, the court chose
to reduce the arrearage to a monetary judgment without going so far as to hold Dr. Wilkinson
in contempt. From the record, we cannot conclude that the court’s decision in this regard
constitutes an abuse of discretion. However, the mere fact that the court relieved Dr.
Wilkinson of a contempt finding will not, ipso facto, relieve him of the judgment made by
the court for the purpose of enforcing its order. Thus, the court did not err in granting a
judgment to Ms. Wilkinson on the alimony arrears, notwithstanding the trial court’s failure
to hold Dr. Wilkinson in contempt.

        Having determined that the award of alimony arrears was proper regardless of whether
a finding of contempt was made, we turn to address Ms. Wilkinson’s argument that the trial
court erred in its failure to grant partial summary judgment on Dr. Wilkinson’s failure to pay
transitional alimony. We glean from the record that the court did not grant summary
judgment on the issue because of the existence of a dispute of fact concerning whether Ms.

                                              -9-
Wilkinson and Ms. Morgan were cohabitating. It is well settled that, “when the trial court's
denial of a motion for summary judgment is predicated upon the existence of a genuine issue
as to a material fact, the overruling of that motion is not reviewable on appeal when
subsequently there has been a judgment rendered after a trial on the merits.” Arrow
Electronics v. Adecco Employment Servs., Inc., 195 S.W.3d 646, 650 (Tenn. Ct. App.
2005). Because this case proceeded to hearing on the merits after the denial of partial
summary judgment, we are unable review the question of whether Ms. Wilkinson was
entitled to partial summary judgment.

        Finally, Ms. Wilkinson argues that the trial court erred in failing to find Dr. Wilkinson
in contempt when the evidence showed that Dr. Wilkinson willfully failed to pay the amounts
owed despite being financially able to do so. A trial court’s decision to hold a person in civil
contempt is reviewed under an abuse of discretion standard. See Robinson v. Air Draulics
Eng'g Co., 377 S.W.2d 908, 912 (Tenn. 1964); Hawk v.. Hawk, 855 S.W.2d 573, 583
(Tenn.1993); Moody v. Hutchison, 159 S.W.3d 15, 25–26 (Tenn. Ct. App.2003). The
practical effect of this standard is that the discretionary decision will be reviewed to
determine: (1) whether the factual basis for the decision is supported by the evidence, (2)
whether the trial court identified and applied the applicable legal principles, and (3) whether
the trial court's decision is within the range of acceptable alternatives. Flowers v. Tennessee
Trucking Association Self Insurance Group Trust, 209 S.W.3d 602, 610 (Tenn. Ct. App.
2006). “An abuse of discretion is found when the trial court's ruling falls outside the
spectrum of rulings that might reasonably result from an application of the correct legal
standards to the evidence found in the record.” Id. This review-constraining standard does
not permit reviewing courts to substitute their own judgment for that of the court whose
decision is being reviewed. Williams v. Baptist Mem'l Hosp., 193 S.W.3d 545, 551 (Tenn.
2006); Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001).

      According to the Tennessee Supreme Court, civil contempt claims based upon alleged
disobedience to a court order have four essential elements:

              First, the order alleged to have been violated must be “lawful.”
              Second, the order alleged to have been violated must be clear,
              specific, and unambiguous. Third, the person alleged to have
              violated the order must have actually disobeyed or otherwise
              resisted the order. Fourth, the person's violation of the order
              must be “willful.”

Konvalinka v. Chattanooga-Hamilton County Hosp. Auth., 249 S.W.3d 346, 354–55 (Tenn.
2008) (footnotes omitted). The trial court specifically relied on the second
requirement—“that the order alleged to be violated must be clear”—to decline to hold Dr.

                                              -10-
Wilkinson in civil contempt for suspending the alimony payments. In ruling on the issue, the
trial court stated on the record, as incorporated by reference into his order, that: “[B]ecause
that provision in the MDA was somewhat ambiguous, [Dr. Wilkinson], though he was legally
wrong in failing to pay, ostensibly had some reasonable bases for failing to pay.” In addition,
the trial found that although Dr. Wilkinson was “legally wrong in failing to pay,” Dr.
Wilkinson had some “reasonable basis” for failing to pay the alimony, including the
investigator’s report, advice of counsel, and Ms. Wilkinson’s apparent thirty-two month
delay in seeking to enforce the alimony provision. Based on these findings, we cannot
conclude that the trial court in this case abused its discretion in concluding that the MDA was
not sufficiently clear to support a finding of civil contempt. Accordingly, we also decline to
conclude that the trial court abused its discretion in failing to hold Dr. Wilkinson in contempt
for suspending the alimony payments.

                                     III. Attorney Fees

        As set out in full context above, the MDA, as incorporated into the amended divorce
decree, provides that: “Should either party incur any expense[s] or legal fees in a successful
effort to enforce this marital dissolution agreement, in whole or in part, the Court shall award
reasonable attorney’s fees and suit expenses to the party seeking to enforce this agreement.”
In the instant case, the court awarded Ms. Wilkinson $11,285.50 in attorney’s fees. Dr.
Wilkinson appeals the award of attorney’s fees. Ms. Wilkinson appeals the amount of the
award, claiming that she is entitled to an award of $38,793 in attorney’s fees.

       As discussed in Beem v. Beem, No. W2009-00800-COA-R3-CV, 2010 WL 1687782
(Tenn. Ct. App. April 28, 2010):

              The issue of whether the attorney fee award was within the
              scope of the relevant provision in the MDA is an issue of law,
              which we review de novo on the record, affording no
              presumption of correctness to the trial court's decision. Barnes
              v. Barnes, 193 S.W.3d 495, 498 (Tenn. 2006); Frizzell Constr.
              Co. v. Gatlinburg, LLC, 9 S.W.3d 79, 85 (Tenn. 1999). If an
              award of attorney fees is provided for in the MDA, the trial
              court has the discretion to determine whether the amount of the
              fee requested is reasonable. See Airline Constr. Inc. v. Barr,
              807 S.W.2d 247, 270 (Tenn. Ct. App. 1990). Therefore, if an
              attorney fee award was proper under the parties' MDA, we must
              determine whether the trial court abused its discretion in the
              amount of the fee awarded. See Metro. Gov't of Nashville v.
              Brown, No. M2008-02495-COA-R3-CV, 2009 WL 5178418, at

                                              -11-
              *8 (Tenn. Ct. App. Dec.30, 2009).

Id. at *9.

       In Beem, as in the instant case, the parties’ MDA stated that the prevailing party
“shall” be awarded his or her attorney’s fees. As noted by the Beem Court:

              The “cardinal rule” of contract construction is to ascertain the
              intent of the parties and to effectuate that intent consistent with
              applicable legal principles. Frizzell Constr. Co. v. Gatlinburg,
              LLC, 9 S.W.3d 79, 85 (Tenn. 1999). When the language of the
              contract is plain and unambiguous, courts determine the intent
              of the parties from the four corners of the contract, interpreting
              and enforcing it as written. Int'l Flight Ctr. v. City of
              Murfreesboro, 45 S.W.3d 565, 570 (Tenn. Ct. App. 2000).

Beem, 2010 WL 1687782 at *10. Because the parties’ MDA is clear that the prevailing party
“shall” receive some amount of attorney’s fees, the trial court did not err in awarding attorney
fees to Ms. Wilkinson. The question, then, is whether the amount of the award was an abuse
of the trial court’s discretion. The issue of reasonableness of attorney’s fees was recently
addressed by this Court in Pounders v. Pounders, No. W2010–01510–COA–R3–CV, 2011
WL 3849493 (Tenn. Ct. App. Aug. 31, 2011):

              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.

                                              -12-
                    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 . K e i s li n g , 1 9 6 S .W .3 d 7 0 3 , 7 2 6
                    (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, 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)).

Pounders, 2011 WL 3849493 at *3.

      Turning to the record, the trial court made specific findings from the bench
concerning its award of attorney’s fees and the amount thereof:

             Now we get to the issue of attorney fees. The Court has
             reviewed the attorney fee application by the Petitioner, as well

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              as the Response from the Respondent. Now, this Court is going
              to award attorney fees based upon this Petition for Contempt
              that was—based upon the work that was done and successfully
              pursued as to this alimony and tax liability issue. And when I
              say successfully pursued, there were some filings, such as the
              motion for summary judgment and all the work attendant to that,
              which the Court denied. So this Court is going to discount those
              fees.
                      I think there was also a petition for protective order,
              which the Court denied as well, and the Court is going to deny
              those attorney fees of the Petitioner.
                      Now, looking at and going over very closely the work
              that was done on the case as it relates to the past-due alimony
              payments, this Court is going to award an attorney fee in the
              amount of $11,285.50 as it relates to the successful pursuit of
              past-due alimony payments, as well as the court costs will be
              assessed against the Respondent.

       In this case, it is clear that the court limited the award of attorney’s fees to those
portions of the litigation in which Ms. Wilkinson prevailed. As set out in full context above,
the MDA provides for an award of “reasonable attorney’s fees.” It does not provide for an
award of all attorney’s fees. In addition the MDA contemplates that the fees and expenses
will be awarded to the party for his or her “successful effort to enforce this marital
dissolution agreement.” Based upon the plain and unambiguous language of the MDA, we
cannot conclude that the court abused its discretion in limiting the amount of attorney’s fees
only to those amounts accrued in the portions of Ms. Wilkinson’s case on which she was
actually successful, i.e. the petition for contempt. Moreover, a review of the affidavits filed
in support of Ms. Wilkinson’s request for attorney’s fees are itemized and, therefore, the
portion of fees attributable to the contempt petition is easily ascertainable.

       In his brief, Dr. Wilkinson contends that an award of attorney’s fees is erroneous in
the absence of a finding that he was in contempt of court. Respectfully, we disagree. As
discussed above, the MDA does not predicate the award of attorney’s fees upon a finding of
contempt; rather, it predicates the award upon a successful effort to enforce the MDA.
Accordingly, we cannot conclude that, in order to award attorney’s fees, the court also had
to make a finding of contempt. That is simply not what the plain language of the MDA
contemplates.

       In her brief, Ms. Wilkinson argues that the trial court should also have allowed the
fees allegedly accrued in pursuit of her motion for partial summary judgment. As noted

                                             -14-
above, we do not reach the question of whether summary judgment should have been granted
as we have determined that the case was adjudicated by a hearing on the merits. Because we
are precluded from addressing the question of whether the denial of summary judgment was
proper, Ms. Wilkinson’s motion for partial summary judgment remains an unsuccessful
attempt to enforce the MDA. As the MDA in this case specifically requires that attorneys fees
be awarded for only “successful effort[s] to enforce [the MDA],” we cannot conclude that
the trial court abused its discretion in failing to award Ms. Wilkinson her attorney fees for
her unsuccessful attempt to obtain summary judgment.

       Ms. Wilkinson asks this Court to award her attorney’s fees accrued in defense of this
appeal. An award of appellate attorney fees is within this Court's sound discretion. Archer
v. Archer, 907 S.W.2d 412, 419 (Tenn. Ct. App. 1995). In determining whether to award
attorney's fees on appeal, we consider the ability of the party seeking the fee award to pay
such fees, success on appeal, whether the appeal was taken in good faith, and any relevant
equitable factors. Darvarmanesh v. Gharacholou, No. M2004-00262-COA-R3-CV, 2005
WL 1684050, at *16 (Tenn. Ct. App. July 19, 2005); see Tenn. Code Ann. § 36–5–103(c);
see also Bryant v. Bryant, No. M2007–02386–COA–R3–CV, 2008 WL 4254364, at *9–10
(Tenn. Ct. App. Sept. 16, 2008). Ms. Wilkinson is the prevailing party in this appeal. Based
upon the plain language of the MDA, as incorporated into the trial court’s order, Ms.
Wilkinson, as the prevailing party, is entitled to her reasonable attorney’s fees in defense of
this appeal. Accordingly, we remand the case for a determination of the proper amount of
those fees.

       For the foregoing reasons, we affirm the order of the trial court. The case is remanded
for such further proceedings as may be necessary and are consistent with this Opinion,
including, but not limited to, the determination of Ms. Wilkinson’s reasonable attorney’s fees
accrued in this appeal. Costs of the appeal are assessed against the Appellant, Bradley Webb
Wilkinson, and his surety.




                                                    _________________________________
                                                    J. STEVEN STAFFORD, JUDGE




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