Mom Can Collect Attorney’s Fees for Defending Order of Protection on Appeal, Even Though Main Appeal Dismissed as Moot
Tennessee case summary on attorney’s fees for order of protection.
Miracle Tenney ex rel. Desirae B. v. Daniel Paul Bullington
Mom Can Collect Attorney’s Fees for Defending Order of Protection on Appeal, Even Though Main Appeal Dismissed as Moot
The mother and father in this order for protection case were divorced in 2019, and were the parents of a fourteen year old. In 2020, the girl had what the court called an “emotional episode” while in the father’s custody, and the father applied corporal punishment. The mother requested, and was granted, an order of protection on behalf of the girl. The order, which was in effect for one year, required that the father have no contact with the girl outside of therapy. The father was also ordered to pay all court costs and attorney fees. The father brought an appeal to the Tennessee Court of Appeals, but the order for protection expired before the Court of Appeals had its oral argument scheduled. Thus, the only issue remaining was the costs and attorney fees.
The Court of Appeals agreed with the mother that the validity of the order was now moot, and dismissed that portion of the appeal before turning to the question of attorney fees.
The father argued that he, and not the mother, was the one entitled to attorney’s fees, both at the trial level and on appeal. But the appeals court was quick to point out that he was not the prevailing party, because the order was not reversed on appeal. The court called the appeal an unsuccessful challenge to the propriety of the order of protection.
The mother made a request for her attorney’s fees for defending the appeal. The court noted that ordinarily, a claim for attorney’s fees on appeal is insufficient to render a case justiciable if it is otherwise moot. And as the court previously held, this case was moot. But the order for protection statute had a strong legislative intent to provide enhanced protection from domestic abuse, and the court concluded that to deny attorney’s fees would defeat that legislative intent.
The appeals court pointed out that the legislation authorized attorney’s fees, in order to make sure that victims of domestic violence are not burdened by the cost of obtaining or defending orders. To not award attorney’s fees for the appeal would frustrate that provision.
For these reasons, the Court of Appeals dismissed the father’s appeal as moot, but remanded the case to the trial court to determine the amount of attorney’s fees to be awarded for defending the appeal.
No. M2020–01432-COA-R3-CV (Tenn. Ct. App. Nov. 29, 2021).
See original opinion for exact language. Legal citations omitted.
To learn more, see The Tennessee Divorce Process: How Divorces Work Start to Finish.
To learn more, see Domestic Violence in Tennessee.
