Sexton v. Carden

JULIE (CARDEN) SEXTON v. JASON VINCENT CARDEN

No. E2019-01057-COA-R3-CV

COURT OF APPEALS OF TENNESSEE AT KNOXVILLE

Assigned on Briefs October 1, 2020

December 9, 2020

Appeal from the Circuit Court for Hamilton County

No. 09D2431

Ward Jeffrey Hollingsworth, Judge

This appeal concerns the trial court's award of attorney fees. The ex-husband appeals. Upon a thorough review of the record, we discern no error and affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the court, in which J. STEVEN STAFFORD, P.J., W.S., and W. NEAL MCBRAYER, J., joined.

Alan R. Beard, Chattanooga, Tennessee, for the appellant, Jason Vincent Carden.

Harold L. North, Jr. and Nathan L. Kinard, Chattanooga, Tennessee, for the appellee, Julie (Carden) Sexton.

OPINION

I. BACKGROUND

The parties, Julie (Carden) Sexton and Jason Vincent Carden, filed for divorce on December 22, 2009. An agreed parenting plan, entered into on March 25, 2010, awarded them joint custody of their two sons.

Three years later, Ms. Sexton filed a petition to modify the parenting plan and for payment of the child support arrearage. The following year, the trial court entered an order making Ms. Sexton the primary residential parent and resolving several child support issues.

In September 2014, an order of protection was entered against Mr. Carden and his parenting time was restricted. Some supervised parenting time was permitted. From October 2015 until November 2016, Mr. Carden had no parenting time. In December 2016, the trial court allowed Mr. Carden to have two hours of supervised parenting time per week and increased his child support.

On November 30, 2017, the trial court ordered that a plan be put in place to "phase out" the supervision of Mr. Carden's time with the children. At the hearing, both parties orally moved for award of their attorney fees. The trial court's subsequent order, however, did not resolve the attorney fees issue. The parties began filing requests for their fees, along with supporting affidavits and billing records:

• December 6, 2017: Ms. Sexton's motion to alter or amend, seeking the court's determination as to the prevailing party.

• December 14, 2017: Mr. Carden's motion to alter or amend, seeking the court's determination as to the prevailing party.

• December 19, 2017: Ms. Sexton's amended motion to alter or amend, seeking attorney fees and discretionary costs.

• February 2, 2018: Ms. Sexton's billing records and affidavit supporting the fee request, concerning activities between September 8, 2017, and January 29, 2018.

• February 6, 2018: Mr. Carden's billing records and affidavit supporting the fee request, concerning activities between December 13, 2015, and January 29, 2018.

• February 14, 2018: Ms. Sexton's amended billing records and affidavit, concerning activities from March 9, 2016 through January 29, 2018.

• March 1, 2018: Mr. Carden's amended billing records and affidavit, concerning activities between September 20, 2016 through February 21, 2018.

On March 12, 2018, the trial court ruled that Ms. Sexton was the prevailing party:

The Court adopted, to a great degree, [Ms. Sexton's] Plan. . . . Although [Mr. Carden] has gotten additional parenting time, it cannot be said that he prevailed over [Ms. Sexton's] position. Since the Order of December, 2016 was entered, she did not oppose parenting time for [Mr. Carden]. She asked that the parenting time be supervised. Later, she asked that the supervision be "phased out." That is exactly what the Court ordered.

The court's order, however, did not address the amount of fees to be awarded. Ms. Sextonand Mr. Carden filed additional supporting documents:

• May 24, 2018: Ms. Sexton's motion for approval of fees, and supporting affidavit and billing records, concerning activities from March 9, 2016 through March 14, 2018.

• June 29, 2018: Mr. Carden's response to Ms. Sexton's fee request.

• April 12, 2019: Ms. Sexton's memorandum in support of her request for fees.

• April 12, 2019: Mr. Carden's response.

• April 16, 2019: Ms. Sexton's reply.

• April 25, 2019: Mr. Carden's sur-response, including over 130 pages of text messages, emails, and letters as exhibits.

• April 29, 2019: Ms. Sexton's sur-reply.¹

On May 14, 2019, the court granted Ms. Sexton's request for $26,680 in fees and costs. The trial court specifically noted that Mr. Carden was still trying to get his attorney fees "even though the Court has explicitly ruled he is not the prevailing party." The court determined that the hourly rates requested by Ms. Sexton's counsel were reasonable, there was a written fee agreement, no duplication of work had occurred, much of the work was actually done by a paralegal, and the work done was necessary to litigate the issues. Pursuant to the factors in Rule 1.5 of the Rules of Professional Conduct, the court analyzed Ms. Sexton's billing records and found that the requested amount was reasonable and necessary.² On June 14, 2019, Mr. Carden filed a timely notice of appeal.

II. ISSUES

We restate the issues raised on appeal by Mr. Carden as follows:

A. Whether the trial court abused its discretion in finding that Ms. Sexton was the prevailing party under Tennessee Code Annotated section 36-5-103(c).

B. Whether the trial court abused its discretion in determining the amount of fees to be awarded to Ms. Sexton pursuant to Tennessee Code Annotated section 36-5-103(c).

III. STANDARD OF REVIEW

The award of attorney fees is largely in the discretion of the trial court; we will not interfere except upon a clear showing of abuse of that discretion. Aaron v. Aaron, 909 S.W.2d 408, 411 (Tenn. 1995). To determine whether a decision constitutes an abuse of discretion, we review the trial court's decision to ascertain: "(1) whether the factual basis of the decision is supported by sufficient evidence; (2) whether the trial court has correctly identified and properly applied the applicable legal principles; and (3) whether the trial court's decision is within the range of acceptable alternatives." Gooding v. Gooding, 477 S.W.3d 774, 780 (Tenn. Ct. App. 2015). We presume that the trial court's discretionary decision is correct, and we consider the evidence in the light most favorable to the decision. Henderson v. SAIA, Inc., 318 S.W.3d 328, 335 (Tenn. 2010).

IV. DISCUSSION

A.

Mr. Carden contends that Ms. Sexton cannot be the prevailing party for three reasons: (1) he, instead, prevailed; (2) he cannot afford to pay the attorney fee awarded; and (3) Ms. Sexton has not established that she cannot afford to pay her attorney fees.

The applicable statute, Tennessee Code Annotated section 36-5-103(c), now reads:

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.

Until July 1, 2018, this subsection read differently:

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 subsequenthearing, which fees may be fixed and allowed by the court, before whom such action or proceeding is pending, in the discretion of such court.

Tenn. Code Ann. § 36-5-103(c) (2017). See 2018 Pub. Acts, c. 905, § 1. Because this litigation began prior to the change in the wording of the subsection, we apply the earlier version.

The statute authorizes an award of 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." Vlach v. Vlach, 556 S.W.3d 219, 226-27 (Tenn. Ct. App. 2017). Our state's courts "have recognized that the decision to grant attorney's fees under section 36-5-103(c) is largely within the discretion of the trial court and that, absent an abuse of discretion, appellate courts will not interfere with the trial court's finding." Eberbach v. Eberbach, 535 S.W.3d 467, 475 (Tenn. 2017) (citing Keyt v. Keyt, 244 S.W.3d 321, 334 (Tenn. 2007)). A court may find a litigant to be a "prevailing party" if she succeeds "on any significant issue in litigation." Fannon v. City of LaFollette, 329 S.W.3d 418, 431 (Tenn. 2010) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)).

As noted by Ms. Sexton, contrary to Mr. Carden's claim, he did not begin this action "with absolutely no parenting time." Mr. Carden had equal parenting time until Ms. Sexton successfully sought to end his parenting time (and contact with the children) for a lengthy period. Over the period of time that Mr. Carden's parenting time was increased, Ms. Sexton did not oppose the action. She also successfully recovered thousands of dollars in child support arrearages, wage assignments, and changes in child support.

Mr. Carden maintains that he prevailed to some degree and that Ms. Sexton should not be declared the "prevailing party" under section 103(c). We must agree with the trial court that despite the fact that he had "some success," Mr. Carden is not the prevailing party. As noted by the Tennessee Supreme Court, "a prevailing party is one who has succeeded on any significant issue in litigation which achieves some of the benefit the parties sought...