Father Must Pay Attorney Fees Even Though Visitation Restored

Tennessee child custody case summary on attorney’s fees after divorce.

Lara C. Stancil v. Todd A. Stancil

The mother and father in this case were divorced in 2008.  The mother was named the primary residential parent of the two children born in 1999 and 2001.   All parties eventually moved to Tennessee, and the case was registered in Williamson County.  In 2014, the father was engaged in an altercation with the daughter, and the mother filed a petition in the Juvenile Court in 2014.  For a time, the father’s parenting time was limited, and he was ordered to undergo counseling.

In 2015, during the father’s parenting time, the children witnessed an altercation between the father and his new wife.  The children left the house and called the mother and the police.  The father was arrested, but the charges were ultimately dismissed.  The father stopped exercising his parenting time for a few weeks, but then contacted the mother and expressed a desire to resume parenting time.  The mother filed a petition with the court, and after a hearing, Judge Michael Binkley suspended the father’s parenting time.

The father began seeing a psychologist, and in 2016, he filed a petition to reestablish his parenting time.  Trial was held in August 2016, and following the psychologist’s recommendations, Judge Binkley held that the suspension was no longer in the children’s best interests.  A reunification plan was established.  The mother was awarded almost $34,000 in attorney fees, and over $8,000 in discretionary costs.

The father appealed the award of costs and fees to the Tennessee Court of Appeals.  He argued that he should not have to pay the mother’s fees for the period between custody being suspended and reunification being ordered.

The appeals court began by noting that awards of costs and fees are normally within the discretion of the trial court, and will not be reversed unless there is an abuse of discretion.

The father argued that he was ultimately the prevailing party, because his custody rights were restored in 2016.  He did not argue the costs before custody was taken away, but his argument was that he won his battle to have them restored, he was the winning party, and should not have to pay the other side’s fees.

But the appeals court disagreed.  It noted that in family law matters, the relevant statute does not specifically require that attorney’s fees be awarded only to the prevailing party.  It cited earlier cases agreeing with this interpretation.

The appeals court noted that all of the litigation was made necessary by the father’s violence and potential for violence.  It also noted that the whole purpose of the litigation was the children’s best interest, and this was served only because of the entirety of the litigation.

The court did make one modification of the award of costs, because it determined that certain travel expenses did not qualify for an award of costs.  It also held that neither party was entitled to attorney fees for the appeal.

For these reasons, the Court of Appeals affirmed in part and reversed in part, and sent the case back for further proceedings.

No. M2017-01485-COA-R3-CV (Tenn. Ct. App. Apr. 10, 2018).

See original opinion for exact language.  Legal citations omitted.

To learn more, see Modifying Custody & Parenting Plans.

See also Tennessee Parenting Plans and Child Support Worksheets: Building a Constructive Future for Your Family featuring examples of parenting plans and child support worksheets from real cases available on Amazon.com.