Lara C. Stancil v. Todd A. Stancil ( 2018 )

04/10/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
February 5, 2018 Session
LARA C. STANCIL V. TODD A. STANCIL
Appeal from the Circuit Court for Williamson County
No. 2014-382 Michael Binkley, Judge
No. M2017-01485-COA-R3-CV
In this post-divorce dispute, Mother filed a petition to modify parenting time and
obtained an ex parte restraining order based upon Father’s physical altercation with his
wife during parenting time with the parties’ children. After a hearing in December 2015,
the trial court suspended Father’s parenting time until he took steps to address his anger
management issues. At a review hearing in August 2016, the trial court determined that
the suspension of Father’s parenting time was no longer in the best interest of the
children and adopted the recommendations of Father’s psychologist concerning the
reintegration of Father into the lives of the children. The trial court subsequently
awarded Mother her attorney fees and discretionary costs incurred throughout the case.
On appeal, Father asserts that he should have been awarded his attorney fees for the
period of time after the December 2015 hearing and that the trial court erred in awarding
Mother her discretionary costs for the same period. Both parties seek their attorney fees
on appeal. We affirm the trial court’s award of attorney fees in full. With respect to
discretionary costs, we affirm the trial court’s award with the exception of the costs of
preparation and travel, which are not authorized by Tenn. R. Civ. P. 54.04. Each party
shall pay his or her own attorney fees and costs on appeal.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in
Part, Reversed in Part and Remanded
ANDY D. BENNETT, J., delivered the opinion of the Court, in which RICHARD H. DINKINS
and W. NEAL MCBRAYER, JJ., joined.
Phillip R. Newman, Franklin, Tennessee, for the appellant, Todd A. Stancil.
Venus Brannan Niner and Ronda Y. Spurlock, Franklin, Tennessee, for the appellee, Lara
C. Stancil.
OPINION
FACTUAL AND PROCEDURAL BACKGROUND
Lara C. Stancil (“Mother”) and Todd A. Stancil (“Father”) were divorced in
Alabama in 2008 and, at that time, they had two minor children, Katheryn (Katy), born in
April 1999, and Stephen, born in August 2001. In accordance with the parties’ settlement
agreement, which was incorporated into the divorce decree, Mother was the primary
residential parent for the two children. Mother eventually moved with the children to
Brentwood, Tennessee, and the Alabama divorce decree was registered in Williamson
County in March 2015. Father moved to Clarksville, Tennessee.
During Father’s parenting time with the parties’ daughter in April 2014, he had an
altercation with Katy. Mother filed a petition for dependency and neglect in the juvenile
court in Williamson County based upon the altercation between Father and Katy. Father
agreed to limited parenting time and began counseling with the children, and Mother
participated in the counseling, too. In September 2014, the court entered an agreed order
dismissing the petition and reinstating Father’s original parenting schedule with the
children.
Father moved to Chattanooga in July 2015. During their first weekend with Father
in Chattanooga, the children witnessed a physical altercation between Father and his
wife. Upset by this episode, the children left Father’s house and called Mother and the
police. Father was arrested and charged with domestic assault. (The charges were
ultimately dismissed and expunged.) After this incident, Father did not exercise his
parenting time for several weeks.
When Father notified Mother of his desire to resume his parenting time with the
children in Chattanooga, Mother responded by requesting and obtaining an ex parte
restraining order and filing a petition to modify parenting time. After a hearing on
December 29, 2015, the trial court suspended Father’s parenting time and, in an order
entered on February 5, 2016, set a review date for March 4, 2016, at which time the court
would give Father “an opportunity to prove that he is capable of dealing with his anger
management issues and to get to a point where he can have a real relationship with at
least his son.”
In January 2016, Father began seeing a psychologist, David Solovey, Ph.D. On
July 22, 2016, Father filed a motion to reestablish parenting time with the children along
with a progress report from Dr. Solovey. Mother opposed Father’s motion. The trial
court reset the trial for August 29-30, 2016, and determined that it would consider
Father’s motion at that time.
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At the conclusion of the August 2016 trial, the trial court found that the suspension
of Father’s parenting time was “no longer in the children’s best interests.” The court
adopted Dr. Solovey’s recommendations in their entirety, appointed Father’s choice of
Jay Woodman, Ph.D., to serve as the reintegration therapist, and adopted Father’s
proposed reunification counseling timeline.
The trial court reserved the issue of attorney fees and discretionary costs and
requested that the parties submit post-trial briefs. On February 21, 2017, the court issued
an order in which it awarded Mother $33,950.00 in attorney fees incurred throughout the
case, and $8,267.92 in discretionary costs. Father filed a motion to alter or amend, which
was denied by the trial court on June 27, 2017, in a memorandum and order.
On appeal, Father argues: (1) that the trial court erred in awarding Mother her
attorney fees from December 29, 2015, through the end of the trial in August 2016, and
that the trial court should have awarded Father his attorney fees incurred after the hearing
on December 29, 2015, through the end of the August 2016 hearing; (2) that the trial
court erred in awarding Mother all of her discretionary costs incurred from December 29,
2015, through the end of the trial in August 2016; and (3) that Father should be awarded
his attorney fees and costs associated with this appeal. Mother argues that she should be
awarded her attorney fees and costs on appeal.
STANDARD OF REVIEW
Our review is de novo upon the record, accompanied by a presumption of
correctness of the trial court’s findings of fact, unless the preponderance of the evidence
is otherwise. TENN. R. APP. P. 13(d); Armbrister v. Armbrister, 414 S.W.3d 685, 692
(Tenn. 2013). We review a trial court’s conclusions of law de novo, according them no
presumption of correctness. Armbrister, 414 S.W.3d at 692; Rigsby v. Edmonds, 395
S.W.3d 728, 734 (Tenn. Ct. App. 2012).
A trial court’s decision to award attorney fees or discretionary costs is reviewed
under the abuse of discretion standard. Andrews v. Andrews, 344 S.W.3d 321, 340
(Tenn. Ct. App. 2010). Similarly, the decision to award attorney fees incurred on appeal
lies solely within the discretion of the appellate court. Id. A trial court abuses its
discretion when it “causes an injustice by applying an incorrect legal standard, reaches an
illogical result, resolves the case on a clearly erroneous assessment of the evidence, or
relies on reasoning that causes an injustice.” Gonsewski v. Gonsewski, 350 S.W.3d 99,
105 (Tenn. 2011) (citing Wright ex rel. Wright v. Wright, 337 S.W.3d 166, 176 (Tenn.
2011)). Under the abuse of discretion standard, the appellate court’s role is not to
substitute its judgment for that of the trial court, but rather to presume that the trial
court’s decision is correct and to “review the evidence in the light most favorable to the
decision.” Id. at 105-06 (citing Wright, 337 S.W.3d at 176).
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ANALYSIS
I. Attorney Fees
Father does not contest the attorney fees awarded to Mother for legal services
provided through the conclusion of the hearing on December 29, 2015, when the trial
court suspended Father’s parenting time. Father’s position is that he was the prevailing
party at the trial on August 29-30, 2016, and that the trial court abused its discretion in
failing to award him attorney fees for legal services provided from December 30, 2015,
through the August 2016 trial. We disagree.
Father bases his argument on Tenn. Code Ann. § 36-5-103(c), which states:
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 subsequent hearing, which fees may be fixed
and allowed by the court, before whom such action or proceeding is
pending, in the discretion of such court.
(Emphasis added). The purpose of attorney fee awards under Tenn. Code Ann. § 36-5-
103(c) is “to protect the children’s, not the custodial parent’s, legal remedies.” Sherrod v.
Wix, 849 S.W.2d 780, 785 (Tenn. Ct. App. 1992); see also Stack v. Stack, No. M2014-
02439-COA-R3-CV, 2016 WL 4186839, at *13 (Tenn. Ct. App. Aug. 4, 2016).
Although the language of Tenn. Code Ann. § 36-5-103(c) does not state that a
litigant must be the prevailing party in order to receive attorney fees under the statute,
cases interpreting this provision generally require that the party awarded attorney fees be
the prevailing party. See, e.g., Taylor v. Fezell, 158 S.W.3d 352, 360 (Tenn. 2005)
(stating that Tenn. Code Ann. § 36-5-103(c) provides “a basis to award attorney’s fees to
the successful litigant”); Thayer v. Thayer, No. M2015-00194-COA-R3-CV, 2016 WL
4056316, at *7 (Tenn. Ct. App. July 26, 2016) (citing Tenn. Code Ann. § 36-5-103(c) for
the proposition that “the prevailing party in child support proceedings may recover from
the other spouse reasonable attorney’s fees”); Shofner v. Shofner, 232 S.W.3d 36, 40
(Tenn. Ct. App. 2007) (“By successfully enforcing the earlier custody decree, Father is
entitled to recover reasonable attorney fees pursuant to Tenn. Code Ann. § 36-5-
103(c).”).
Under Tenn. Code Ann. § 36-5-103(c), a trial court has discretion regarding the
award of attorney fees. Wiser v. Wiser, No. M2013-02510-COA-R3-CV, 2015 WL
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1955367, at *11 (Tenn. Ct. App. Apr. 30, 2015). A party need not prevail on every issue
in order to be considered the prevailing party for purposes of attorney fees. Id., at *10.
In the present case, Mother initiated the proceedings in order to protect the children from
Father’s anger and potential for violence. At the December 29, 2015 hearing, the trial
court set the case for a review so that Father would have the opportunity to prove he was
capable of reestablishing a relationship with his children. As Mother argues, “All the
litigation that followed was necessitated by [Father’s] conduct and measures which were
required in order for him to redeem himself and convince the trial court that he was no
longer a danger to his minor children.” Without further court action, Father could not
have contact with his children. Mother opposed Father at this hearing, and Father was
successful in satisfying the trial court that he should be allowed to begin seeing his son.1
The trial court made the following pertinent findings in its memorandum and order
denying Father’s motion to alter or amend:
[Mother] was the prevailing party because the entire case before the Court
was based upon her Petition, which asserted serious allegations affecting
the emotional health of the parties’ two minor children and to which
[Mother] sought to modify the parenting schedule and to suspend [Father’s]
parenting time. . . .
Additionally, while this Court relied upon the testimony of
[Father’s] expert witness, Dr. Solovey, to aid in determining the most
appropriate method for facilitating a relationship with [Father] and the
minor children, [Mother] was still the prevailing party overall with regard
to modifying the parenting schedule and suspending [Father’s] parenting
time. [Father] suggests the Court should determine the prevailing party by
fragmenting each stage of the proceedings into a winner and loser column
and award wins and losses according to each separate skirmish’s result.
However, such a framework would effectively ignore the overall resolution
in a case, and this Court cannot analyze in a vacuum with disregard as to
ripple effects each stage in the proceedings has in its culmination and
resolution. . . . Therefore, this Court finds [Mother] was the prevailing
party because she succeeded on the significant issues and she achieved the
benefit . . . which she sought in bringing her suit.
Mother’s petition was filed to protect the interests of the parties’ children. The
trial court found that the evidence supported an award of $33,950 in attorney fees
“because the parties’ children would not have had access to the courts had [Mother] not
1
By the time of the December 2016 hearing, the parties’ daughter had reached the age of majority.
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been reimbursed in this case.”2 Under the circumstances of this case, we find no abuse of
discretion in the trial court’s decision to award Mother her attorney fees for the entire
proceeding, from the beginning when Father’s parenting time was suspended to the end
when his parenting time was reinstated.
II. Discretionary Costs
Rule 54.04(2) of the Tennessee Rules of Civil Procedure3 governs a trial court’s
authority to award discretionary costs:
Costs not included in the bill of costs prepared by the clerk are allowable
only in the court’s discretion. Discretionary costs allowable are: reasonable
and necessary court reporter expenses for depositions or trials, reasonable
and necessary expert witness fees for depositions (or stipulated reports) and
for trials, reasonable and necessary interpreter fees not paid pursuant to
Tennessee Supreme Court Rule 42, and guardian ad litem fees; travel
expenses are not allowable discretionary costs.
To award discretionary costs under Tenn. R. Civ. P. 54.04(2), a trial court must
determine that the requesting party is the prevailing party. Mass. Mut. Life Ins. Co. v.
Jefferson, 104 S.W.3d 13, 35-36 (Tenn. Ct. App. 2002). Father acknowledges that
Mother was entitled to discretionary costs up to and through the December 29, 2015
hearing but argues that he was the prevailing party at the trial in August 2016 and that the
trial court erred in awarding Mother her discretionary costs after the December 29, 2015
hearing through the August 2016 trial. As discussed above, we conclude that Mother was
the prevailing party for the entire proceeding.
To properly award discretionary costs, a trial court must also limit the award to
costs specifically identified in Tenn. R. Civ. P. 54.04. Jefferson, 104 S.W.3d at 35-36.
At issue here is the trial court’s inclusion in its award of the entire invoice amounts of
Leslie Owzley, counselor for Katy, and Jennifer Lackey, counselor for Father. Ms.
Owzley’s invoice shows charges for travel, file review, deposition prep, and meeting with
an attorney, in addition to time spent in the actual deposition. Rule 54.04(2) of the
Tennessee Rules of Civil Procedure does not allow discretionary costs to be awarded for
preparing for a deposition, only for actually testifying at a deposition. See Chaffin v.
Ellis, 211 S.W.3d 264, 293 (Tenn. Ct. App. 2006); Shahrdar v. Global Hous., Inc., 983
2
Mother earned approximately $40,000 per year as a teacher; Father earned approximately $160,000 per
year.
3
Mother argues that Tenn. Code Ann. § 36-5-103(c) provides an independent source of authority for a
trial court’s award of discretionary costs. Her only support for this proposition is D v. K, 917 S.W.2d
682, 686 (Tenn. Ct. App. 1995). We do not interpret D v. K to hold that a trial court may award
discretionary costs pursuant to Tenn. Code Ann. § 36-5-103(c) in contravention of Tenn. R. Civ. P. 54.04.
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S.W.2d 230, 239 (Tenn. Ct. App. 1998). The charge of $800 on the day of the deposition
(four hours at the rate of $200 per hour) indicates that it includes travel time and
additional preparation with the attorney. Only the amount attributable to the deposition
itself should be included in discretionary costs.
Ms. Lackey’s bill likewise includes time spent preparing for her deposition and for
trial. Again, time spent in preparation for a deposition or for trial is not properly
includable in discretionary costs. Chaffin, 211 S.W.3d at 293; Shahrdar, 983 S.W.2d at
239. Father also makes the argument that “the record is clear that the Trial Court did not
rely on [Ms. Lackey’s] testimony at all in reaching and rendering a decision at the trial on
August 29-30, 2016.” He asserts that the trial court erred in awarding discretionary costs
related to Ms. Lackey’s trial testimony “as those costs were not reasonable and necessary
to the presentation of her proof.” We disagree with the latter argument. As the trial court
stated in its memorandum and order entered on June 27, 2017, its reliance on Dr.
Solovey’s recommendations does not negate the value of Ms. Lackey’s testimony. The
trial court determined these costs to be reasonable and necessary and did not base its
award of discretionary costs on the weight it gave to a particular witness’s testimony.
Thus, with the exception of those items mentioned above not allowed under Tenn. R. Civ.
P. 54.04(2), we find no abuse of discretion in the trial court’s award of discretionary
costs.
III. Attorney Fees on Appeal
Both parties have requested that this Court award them their attorney fees and
related costs on appeal. Tennessee Code Annotated section 36-5-103(c) gives appellate
courts discretion to award attorney fees to the prevailing party. Andrews, 344 S.W.3d at
340; Pippin v. Pippin, 277 S.W.3d 398, 407 (Tenn. Ct. App. 2008). In light of the
outcome of the issues on appeal, we conclude that the parties should bear the cost of their
own attorney fees on appeal.
CONCLUSION
The judgment of the trial court is affirmed in part and reversed in part, and this
matter is remanded for further proceedings consistent with this opinion. Costs of appeal
are assessed equally against both parties.
________________________________
ANDY D. BENNETT, JUDGE
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