Wife Entitled to Attorney Fees Though Husband Dismissed Case

Tennessee case summary on attorney’s fees in divorce.

Wife entitled to attorney fees even though husband voluntarily dismissed case.

Vanessa Colley v. John S. Colley, III

The husband and wife in this Davidson County, Tennessee, case were divorced in 2012, after having executed a marital dissolution agreement (MDA). The wife was named the primary residential parent, but both parties were granted joint decision making power for major decisions, such as education. But despite the final decree, litigation continued. Within a month, they were back in court over conflicting motions as to where one of the children was to attend middle school.

The trial court found that the husband, an attorney, was honest, but unreasonable on many issues. Therefore, it found the wife’s testimony to be more credible. Ultimately, it gave the wife decision making power over educational issues. This judgment was affirmed by the Tennessee Court of Appeals.

Undaunted, the father came back to court for a modification of custody and child support. He later included a motion to end his alimony obligation.

Bitter discovery fights ensued, such as the husband requesting contact information of the wife’s new in-laws. But before the case was heard, the husband filed a notice of nonsuit.

Before the nonsuit was entered, the wife asked for attorney’s fees under the MDA, and under the Tennessee abusive lawsuit statute.

The trial court held that the lawsuit was not abusive for purposes of that statute, but did award the wife her attorney’s fees under the MDA and under the Tennessee Statute allowing attorney’s fees to a prevailing party in child support and alimony collection matters.

The trial court awarded attorney’s fees of $16,500, and the husband brought an appeal to the Tennessee Court of Appeals.

That court reversed, since it held that after the nonsuit, there was no “prevailing party” for purposes of the MDA or the statute.  The wife asked the Tennessee Supreme Court for permission to appeal, and this request was granted.

The high court began with a discussion of the history of attorney fees in Tennessee. It noted that the state generally followed the “American Rule” under which each party paid his or her own fees. There are exceptions, but the party seeking fees bears the burden of proof that an exception applies.

In this case, there were two possible exceptions, the MDA and the state statute. The appeals court addressed the MDA first.

Under the MDA, fees were available to the “prevailing party.” The Court of Appeals had held that there was no prevailing party because of the nonsuit.

The Supreme Court focused on other language of the contract, namely, that attorney fees were available to the prevailing party when it was “necessary for either party to initiate or defend legal proceedings.” The wife did need to defend the proceedings, and she argued that when the husband obtained no relief, it would make little sense to conclude that she did not “prevail.”

The Supreme Court agreed with this analysis. The wife was forced to defend against the action, and she was successful in what was really her only goal, namely, preserving the status quo.

The result of the case was that the husband’s petition was dismissed. In this case, it was because the husband voluntarily had it dismissed. But however the dismissal happened, the wife achieved her goal of preserving the status quo.

For these reasons, the Supreme Court found that the wife was the prevailing party under the MDA. It then turned to the statute, which also allowed fees to a “prevailing party.” The husband argued that the language of the statute required that the case must be heard and decided on the merits. He focused on the language of the statute implying that there must be an actual proceeding in which one party prevailed, and in which the other party was non-prevailing.

But the Supreme Court focused on the practical effect to the wife, and held that the wife might be the prevailing party even without the court ruling on the merits. Therefore, it agreed with the wife that the statute permitted an award of attorney’s fees.

The Supreme Court also went further and allowed the wife her attorney’s fees on appeal, both in the Court of Appeals and in the Supreme Court. It remanded the case to the trial court for a determination of the amount.

For these reasons, the Supreme Court reversed the Court of Appeals and reinstated the judgment of the trial court. The high court’s opinion was authored by Chief Justice Holly Kirby.

No. M2021-00731-SC-R11-CV (Tenn. Ct. App. Apr. 29, 2025).

See original opinion for exact language.  Legal citations omitted.

To learn more, see The Tennessee Divorce Process: How Divorces Work Start to Finish.