TN Divorcing Spouse Must Get Notice of Attorney’s Lien Hearing
Tennessee case summary on property division and attorney’s fees in divorce.
Scott Elmer McCarter v. Debra Lynn Walker McCarter
The husband and wife in this Tennessee case were divorced in 2012 after a 36 year marriage. The wife brought an appeal, and in 2014, the Tennessee Court of Appeals affirmed the judgment. After the appeal, the trial court conducted a hearing on remand. The court issued an order allowing the husband to immediately retrieve certain pieces of farm equipment. It also awarded the husband a judgment for some cattle and other items that had been sold by the wife. In 2015, the court allowed the wife’s attorney to withdraw from the case, and gave the wife’s attorney a lien on her property for his fee. The court also awarded the husband a set of tires and set a date for him to retrieve them.
The wife, without an attorney, then brought a second appeal to the Tennessee Court of Appeals. The wife filed a brief, but the husband elected not to participate in the appeal.
In her appeal, the wife argued that the lower court had violated her Due Process rights in awarding a lien to her attorney without proper notice. She also argued that the award of the tires to the husband had been improper.
The attorney had previously held a lien for $44,000, and this was increased to $135,000 at a hearing which the wife did not attend. She asserted that she had not received proper notice of the hearing. The appeals court agreed that proper notice had not been given.
Under Tennessee law, an attorney has a charging lien based upon his equitable right to have his fees and costs paid from the recovery in a case. Normally, this lien needs to be enforced in a separate action. However, there is an exception when the property comes under the control of the court in the underlying case.
However, the appeals court noted that this provision does not relieve the attorney of the need to prove the fees in a proper hearing.
In this case, the appeals court found that the wife was not on notice that the hearing would involve increasing the amount of the lien. The only indication in the record was that she had notice of the motion to withdraw. There was no evidence that she had been notified that the lien would be considered.
For these reasons, the court reversed the enhanced lien. It sent the case back for another hearing, and noted that the attorney would need to be given proper notice of that hearing.
Finally, the court looked at the tires that had been awarded to the husband. Even though there was no specific notice that the tires would be adjudicated, the appeals court agreed with the lower court that they constituted part of a tractor that had already been awarded to him.
No. M2015-01038-COA-R3-CV (Tenn. Ct. App. May 24, 2016).
See original opinion for exact language. Legal citations omitted.
To learn more, see The Tennessee Divorce Process: How Divorces Work Start to Finish.
