9th Jun 2014

Attorney’s fees for contested issues in divorce and custody litigation can accumulate very quickly if the matter is not resolved by agreement of the parties in a timely manner. Therefore, in most contested divorce and custody litigations, one party, or both, requests that the other party be responsible for a portion, if not all, of their reasonable attorney’s fees. In Tennessee, the award of attorney’s fees in divorce litigation is often determined in a similar manner to that of alimony – based upon the need of the requesting party and the ability of the other party to provide payment. The Court can, and usually will, also take into consideration the specific facts of the case, including fault, but this issue should not be wholly determinative of the decision to award attorney’s fees.

The Supreme Court of Tennessee has previously held that “the burden of proof on the question of what is a reasonable fee in any case is upon the plaintiff and the plaintiff should be in the position to tender such proof. However, if a trial judge is prepared to fix a reasonable fee based upon the appropriate guidelines without first hearing plaintiff’s proof, defendant must be accorded full opportunity to cross examine plaintiff’s witnesses and present evidence on the issue.” Wilson Mfg. Co. v. Star Distrib. Co., 745 S.W.2d 870, 873 (1988) When determining whether attorney’s fees are reasonable, a court must consider the factors enumerated in Connors v. Connors, 594 S.W.2d 672, 677 (Tenn.1980), and, to a lesser extent, Tennessee Supreme Court Rule 8, Disciplinary Rule 2-106(B).

As stated in Connors, the appropriate factors to be used as guides in fixing a reasonable attorney’s fee have been summarized as follows:

1. The time devoted to performing the legal service.
2. The time limitations imposed by the circumstances.
3. The novelty and difficulty of the questions involved and the skill requisite to perform the legal service properly.
4. The fee customarily charged in the locality for similar legal services.
5. The amount involved and the results obtained.
6. The experience, reputation, and ability of the lawyer performing the legal service.

The burden of proof for reasonable attorney’s fees is somewhat more stringent in post-divorce custody issues. The statute [T.C.A. §36-5-103(c)] grants broad discretion of the trial court to award attorney fees in post-divorce proceedings as specified in the statute… However, the right is not absolute. It depends on the lack of resources on the part of the spouse seeking allowance of attorney fees. The Tennessee Court of Appeals, Middle Section, has taken the position that the ability to pay one’s own attorney’s fees should still be a factor for consideration when awarding fees, but not controlling. Specifically, in Sherrod v.Wix, the Court held that:

Tenn. Code Ann. §36-5-103(c) states that awarding legal expenses in custody and support proceedings is discretionary with the trial court. However, the appellate courts have not necessarily been consistent in identifying the considerations which these discretionary decisions should be made. Some panels follow the criteria used to award legal expenses in divorce proceedings and refuse to approve awards in the absence of proof that the party requesting the fees is unable to pay his or her lawyer… Others have approved awards even in the absence of proof of inability to pay and have pointed out that the ability to pay is not a prerequisite for awarding legal fees under Tenn. Code Ann. §36-5-103(c).

T.C.A. §36-6-108(i) also allows for either parent in a Parental Relocation matter to recover reasonable attorney fees and other litigation expenses from the other parent at the discretion of the court. The relevant factors in determining whether to award attorney’s fees include whether the requesting party was successful as to their position in the litigation as well as the respective income and earning capacity of the parties.

Regardless of your position in either bringing a cause of action in family law issues or defending against the same, in most situations your attorney should initially include a request for recovery of reasonable attorney’s fees in the pleadings. By doing so, you preserve the right to be awarded attorney’s fees at a later date in the legal proceedings. If not included in the initial or amended pleadings or response, the issue is waived and attorney’s fees cannot be recovered.