2018 New Law: Recovering Attorneys Fees in TN Child Support, Alimony & Custody Cases
In Tennessee, reasonable attorneys fees can be awarded to prevailing party: civil & criminal contempt, child support, collection, alimony, custody & modification.
When enforcing child support or alimony orders, an earlier Tennessee law disallowed recovery of reasonable attorney’s fees incurred pursuing a criminal contempt action. Attempting to hold a deadbeat accountable often left the supported spouse on the hook for his or her family law attorney’s fees.
All too often, being awarded financial support is only half the battle. The other half is collecting the money and enforcing the orders. After the divorce, yet another court hearing to collect money owed is not typically a budgeted expense. It takes time and resources to prepare for court proceedings. And it takes hiring an experienced family law attorney to aggressively litigate the case.
Thanks to the Tennessee Assembly, however, the burden of enforcing support orders just got lighter. As of July 1, 2o18, the prevailing party may recover reasonable attorney’s fees following civil and criminal contempt proceedings in a family law context. Of course, the prevailing party is not necessarily the petitioner.
Court’s Power to Award Attorney’s Fees with New Family Law
Governor Haslam signed Public Chapter 905 (H.B. 2526) into law on May 3, 2018, amending T.C.A. § 36-5-103 regarding enforcement of decrees for alimony and child support, and other related proceedings. The amended statute went into effect July 1, 2018, empowering courts to award reasonable attorney’s fees in many divorce and family law cases. The newly amended T.C.A. § 36-5-103(c) provides that:
[NEW] (c) A prevailing party may recover reasonable attorney’s fees, which may be fixed and allowed in the court’s discretion, from the non-prevailing party in any criminal or civil contempt action or other proceeding to enforce, alter, change, or modify any decree of alimony, child support, or provision of a permanent parenting plan order, or in any suit or action concerning the adjudication of the custody or change of custody of any children, both upon the original divorce hearing and at any subsequent hearing. [Emphasis added.]
With passage of P.C. 905, a winning party can recover reasonable attorney’s fees incurred in a family law case, including contempt proceedings, to enforce child support or alimony, to alter or change a permanent parenting plan, to modify support orders, and to adjudicate other aspects of child custody, and more. This is a meaningful change for parents and former spouses. Those paying attorneys to handle enforcement of support orders and obligations in permanent parenting plans, such as shared medical costs, life insurance premiums, and healthcare coverage now may recover fees in all successful cases.
Under the old law, some resisted taking legal action due to the cost, despite a desperate need for legal representation to obtain the best possible outcome. There are some situations requiring that only a criminal contempt action can be brought to enforce a right to support. The parent who is not economically independent and does not receive the support funds necessary to properly care for the children may have difficulty justifying attorney’s fees over food on the table. Especially when those fees could not be recovered in a criminal contempt action. P.C. 905 resolved that dilemma.
Case Example: No Attorney’s Fee Award Under Old Law, Watts v. Watts (2016)
Illustrating how the old statute disallowed attorney’s fee awards in post-divorce criminal contempt proceedings is Watts v. Watts, No. M2015-01216-COA-R3-CV (Tenn. Ct. App. June 8, 2016).
In Watts, the trial court awarded attorneys fees in joined child support enforcement and criminal contempt proceedings. The mother (as Primary Residential Parent) was entitled to judgment for unpaid child support. The father (as Alternative Residential Parent) was found guilty of criminal contempt for violating court orders. As the prevailing party, the mother sought to recoup some of her legal costs. She applied for an award of attorney’s fees against the ARP under (the now old) T.C.A. § 36-5-103(c) after having to seek enforcement of support orders and the father’s share of the children’s unpaid medical expenses. She also sought attorney’s fees for prevailing in the criminal contempt petition.
At the time of Watts, attorney’s fees in contempt proceedings were not included in T.C.A. § 36-5-103(c):
[OLD] (c) The plaintiff spouse may recover from the defendant spouse, and the spouse or other person to whom the custody of the child, or children, is awarded may recover from the other spouse reasonable attorney fees incurred in enforcing any decree for alimony and/or child support, or in regard to any suit or action concerning the adjudication of the custody or the change of custody of any child, or children, of the parties, both upon the original divorce hearing and at any subsequent hearing, which fees may be fixed and allowed by the court, before whom such action or proceeding is pending, in the discretion of such court. [Emphasis added.]
The trial court awarded attorney’s fees pursuant to T.C.A. § 36-5-103(c) for both actions on grounds the contempt complaint served two purposes: 1) to uphold the court’s authority, and 2) to enforce a private right to “substantial amounts of child support for the benefit of the minor children.” The father appealed, arguing his T.C.A. § 29-9-103(b) rights were violated by the award of attorney’s fees in a criminal contempt action.
Holding for the father, the Tennessee Court of Appeals affirmed the attorney’s fee award under T.C.A. § 36-5-03(c) for the arrears judgment of child support. However, it reversed the attorney’s fee award for the criminal contempt action for lack of statutory authority. Notably, T.C.A. § 29-9-103(b) neither enforced private rights nor provided for any recovery of attorney’s fees. Instead, it prevented excessive punishment by limiting a fine to no more than $50.00 and incarceration for no more than 10 days.
T.C.A. § 29-9-103 is a general criminal contempt provision that restricts penalties upon conviction, whether or not the violation arose out of a divorce or family law case:
(a) The punishment for contempt may be by fine or by imprisonment, or both.
(b) Where not otherwise specially provided, the circuit, chancery, and appellate courts are limited to a fine of fifty dollars ($50.00), and imprisonment not exceeding ten (10) days, and, except as provided in § 29-9-108, all other courts are limited to a fine of ten dollars ($10.00).
Before P.C. 905 was passed, the unavailability of attorney’s fee awards could sometimes have a chilling effect on collecting unpaid support. Not only did payees bear the cost of enforcement proceedings, but also the cost of asking the court to hold a delinquent obligor in criminal contempt – a proceeding for which no attorney’s fees could be recovered.
As amended, the language of T.C.A. § 36-5-103(c) today provides for attorney’s fees in civil and criminal contempt actions in the context of alimony, child support, or child custody obligations. In contrast to Watts, parallel facts today would allow the PRP to request an award of reasonable attorney’s fees in the contempt petition under the same proviso as the child support enforcement action – that is, T.C.A. § 36-5-103(c).
Attorney’s Fee Award in Tennessee Contempt Conviction
Be mindful, only the prevailing party can be awarded attorney’s fees and that could be the payor-defendant. With the new language of T.C.A. § 36-5-103(c), conviction of criminal contempt risks fines, jail, covering the supported spouse’s attorney’s fees, and a judgment for arrears with interest. The potential consequences of nonpayment are serious. Failure to comply with support orders will likely lead to more litigation and contempt proceedings.
Has keeping up with the payment schedule become too burdensome? Have circumstances markedly changed? Be proactive in seeking modified orders, even if only a temporary reprieve results. A job loss or relocation assignment, illness or injury, or other event could disrupt work performance and the ability to earn income at the same level upon which child support obligations were established.
There are options. Have an attorney explain the post-decree modification process. Ask what repercussions can be expected with a continuing violation of court orders. In this, it really is “better the devil you know.”
However acrimonious the divorce or custody dispute was, do not delay compliance with legal support obligations. Serving a jail sentence for criminal contempt means lost wages and possible job termination. It puts the payor in the unenviable position of falling even further behind with support payments. Arrears with interest are collectable as a judgment and a criminal record does not enhance a job application. Talk to your lawyer.
