Suzanne Elaine Crawley Cowan v. Robert Elmo Cowan, Jr. ( 2020 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
February 11, 2020 Session
SUZANNE ELAINE CRAWLEY COWAN v. ROBERT ELMO COWAN,
JR.
Appeal from the Circuit Court for Shelby County
No. CT-000715-16 Mary L. Wagner, Judge
___________________________________
No. W2019-00179-COA-R3-CV – Filed April 24, 2020
___________________________________
This appeal concerns a post-divorce proceeding for contempt. Wife filed a petition for
scire facias and civil contempt, alleging Husband willfully disobeyed the terms of the
parties’ marital dissolution agreement. The trial court granted Wife’s petition, awarding
her one-half of Husband’s retirement bonus, and held Husband in civil contempt. The trial
court granted Wife attorney’s fees for enforcing the parties’ marital dissolution agreement.
For the reasons stated herein, we agree that Wife is entitled to one-half of Husband’s net
retirement bonus, that Husband willfully violated the parties’ marital dissolution agreement
and should be held in civil contempt for this violation, and that Wife should be awarded
attorney’s fees for having to enforce the agreement. We therefore affirm the decision of
the circuit court.
Tenn. R. App. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and
Remanded.
CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and W. NEAL MCBRAYER, J., joined.
Rachael Emily Putnam and Hallie Goodman Flanagan, Memphis, Tennessee, for the
appellant, Robert Elmo Cowan, Jr.
Vickie Hardy Jones, Memphis, Tennessee, for the appellee, Suzanne Elaine Crawley
Cowan.
OPINION
I. FACTS & PROCEDURAL HISTORY
Robert Elmo Cowan, Jr. (“Husband”) and Suzanne Elaine Crawley Cowan (“Wife”)
married in April 1986. Wife filed her complaint for divorce in February 2016. Husband
filed his answer and counter-complaint for divorce in April 2016. On April 5, 2017, the
trial court granted Wife an absolute divorce on the ground of irreconcilable differences and
entered a final decree of divorce, which approved and incorporated therein the terms of the
parties’ marital dissolution agreement (“MDA”).
The MDA was intended to be an “equitable settlement of all property rights between
the parties.” Matters such as alimony payments to Wife, distribution of marital property,
and sale of the marital residence were resolved in the MDA and are undisputed. Relevant
to this appeal are paragraphs 7 and 23. Paragraph 23 states, in the event a “party has
willfully breached any provision of this Agreement, then the breaching party shall pay to
the other party all reasonable attorneys’ fees and costs incurred in the enforcement of any
such provision or provisions . . . .” Paragraph 7 is the primary source of the parties’
contention. It reads:
If Husband receives a one-time lump sum payment in the nature of a
bonus in connection with work performed after the execution of this
Agreement, Husband shall receive said payment, even if paid to him at the
time of his retirement. If, at or about the time of his retirement, Husband
receives a one-time lump sum payment in connection with his retirement or
his years of service, Husband shall pay to Wife a sum equal to one-half of
the net amount that he receives upon his receipt of the same. . . . Said payment
is made to effectuate an equitable division of the marital property and shall
not be taxable to Wife or deductible by Husband. Husband shall provide to
Wife all documentation necessary for her to verify that she received proper
payment under this paragraph.
Husband worked as a pilot for Federal Express (“FedEx”) from December 1983
until his retirement on February 24, 2018. Based on his career as a pilot, upon satisfying
the necessary criteria, Husband was entitled to an “End of Career Sick Leave/Advance
Notice of Planned Retirement Bonus” (“the Bonus”). Amy Hutchinson, Senior Adviser in
Labor Relations and Pilot Benefits at FedEx, testified to the eligibility requirements of the
Bonus. The Bonus is governed under Section 28-F of the FedEx pilots’ collective
bargaining agreement (“Section 28-F”). Section 28-F states several requirements that must
be met to receive the Bonus. The pilot must: (1) retire at age 60 or older; (2) provide 12
months’ notice of his or her retirement; and (3) actually retire in the month the pilot turns
65 or on December 31 of the noted year.
Prior to the execution of the MDA, on February 7, 2017, Husband notified FedEx
of his intent to retire on February 24, 2018. Husband reached the of age 65 in February
2018 and did in fact retire on February 24, 2018. As a result, Husband satisfied the
eligibility requirements of the Bonus. On March 21, 2018, Husband received the Bonus in
-2-
the gross amount of $59,250.82 ($44,026.18 net).1 The parties do not dispute how the
Bonus was calculated. As Ms. Hutchinson explained, the total amount awarded is the sum
of two amounts. The first amount is the lesser of three items: item one, “pay in excess of
$520,000 over the last 24 months of a pilot’s career;” item two, “50 percent of the pilot’s
disability/sick account balance times the last pay rate;” and item three, $110,000. For
Husband, item two was the lesser of the three, equaling $19,205. The second piece of the
Bonus calculation is a predetermined figure based on the pilot’s age and years of service
at FedEx as of November 2, 2015. This figure is set under a payment chart in Section 28-
F. The majority of Husband’s gross bonus was the result of the predetermined figure in
the second piece of the calculation. Husband’s age and years of service listed this second
figure at $40,000. Ms. Hutchinson explained, according to Section 28-F’s payment chart,
Husband was required to accrue 23 years of vesting service at FedEx to receive the full
$40,000 portion of the Bonus. Had Husband accrued less than 23 years of service as of
November 2, 2015, the gross amount would have been reduced by $10,000.
Wife first made a demand for a one-half share of the Bonus in February 2018, before
Husband received it. Throughout this dispute, Wife has asserted she is entitled to one-half
of the Bonus under sentence two of paragraph 7 in the parties’ MDA. Again, sentence two
states, “If, at or about the time of his retirement, Husband receives a one-time lump sum
payment in connection with his retirement or his years of service, Husband shall pay to
Wife a sum equal to one-half of the net amount that he receives upon his receipt of same.”
Husband has denied Wife’s requests, asserting sentence one of paragraph 7 applies as
payment for “work performed after the execution of [the MDA],” meaning he should
receive 100% of the Bonus. Wife filed a Petition for Scire Facias and Citation for Civil
Contempt and for Attorney Fees on May 3, 2018. In her petition Wife requested that half
of the Bonus payment be made to her pursuant to paragraph 7 of the MDA, that Husband
show cause as to why he should not be held in contempt, and that attorney fees under
paragraph 23 of the MDA be awarded to her. Husband filed a response to Wife’s petition
on October 16, 2018.
On October 22, 2018, the cause was heard before the trial court. At trial, the parties
agreed the facts were not in dispute and that the only disagreement was over the
interpretation of paragraph 7. Both parties stated paragraph 7 was unambiguous, but that
they reached different interpretations of its wording. After testimony from Ms. Hutchinson
and Husband, the court gave an oral ruling. The court relied on Ms. Hutchinson’s
testimony in finding the Bonus was in fact a “career retirement bonus.” The court stated
the Bonus “was not received in connection with work performed [after execution of the
MDA], but in connection with retirement or years of service.” As a result, the court applied
sentence two of paragraph 7 and awarded Wife $22,013.09 as one-half of the net Bonus.
1
Under paragraph 7, the parties defined the “net amount” of the Bonus as “the gross amount less
federal income taxes at the rate of a single taxpayer with two dependency exemptions, less applicable Social
Security and Medicare taxes.”
-3-
In regard to contempt, the court found the final decree of divorce (incorporating the MDA)
was a lawful order and was not void. It further found that Husband had the ability to pay
Wife her requested one-half share of the Bonus but that he refused to do so. Therefore, the
court found Husband in civil contempt of court and awarded Wife $10,509.71 in attorney’s
fees pursuant to paragraph 23 of the MDA.
On November 5, 2018, the court entered a written order on its oral ruling,
incorporating the transcript of the oral ruling by reference. The court found Wife’s asserted
$10,509.71 in attorney’s fees to be necessary and reasonable. Shortly thereafter, Husband
filed a Rule 52 Motion for Additional Findings of Fact and Conclusions of Law and/or
Rule 59 Motion to Alter or Amend the Court’s Order. Husband asserted the court did not
make the necessary findings of fact or conclusions of law and that the court’s ruling was
in contradiction to Ms. Hutchison’s testimony. The court heard Husband’s motion on
December 17, 2018, and repeated its previous ruling. The court stated that the parties
agreed the MDA was clear, specific, and unambiguous and that it did not need to make a
conclusion as to whether the MDA was ambiguous to make its factual determinations. For
having to respond to Husband’s motion, the court awarded Wife an additional $1,902.97
in attorney’s fees under the MDA. Husband timely appealed the order on Wife’s petition
and the court’s grant of attorney’s fees.2
II. ISSUES PRESENTED
Husband presents the following issues for review on appeal, which we have
reworded.
1. Whether the trial court properly awarded Wife one-half of Husband’s Bonus
from March 2018;
2. Whether the trial court properly found Husband in contempt;
3. Whether Wife was properly awarded attorney’s fees on her Petition for Scire
Facias and Citation for Civil Contempt and for Attorney Fees and for Husband’s
Rule 52 Motion for Additional Findings of Fact and Conclusions of Law and/or
Rule 59 Motion to Alter or Amend the Court’s Order; and
2
We note, Wife is correct in asserting the references in Husband’s appellate brief to the depositions
of Ms. Hutchinson and Terrence McTigue, Senior Labor Relations Counsel of the Airline Pilots
Association, are improper. There is no indication either deposition was introduced or read into evidence
on October 22, 2018 or December 17, 2018. Accordingly, the contents of those depositions cannot be
considered by this court. See Allstate Ins. Co. v. Young, 639 S.W.2d 916, 918–19 (Tenn. 1982) (stating an
appellate court “can only consider on appeal the evidence considered by the [trial court]”); Nold v. Selmer
Bank & Trust Co., 558 S.W.2d 442, 445 (Tenn. Ct. App. 1977) (holding “the mere filing of a discovery
deposition with the clerk and master does not make the deposition a part of the record on review”).
-4-
4. Whether Husband should be awarded attorney’s fees on this appeal.
In responding to Husband’s appeal, Wife asserts one additional issue:
1. Whether this Court should award Wife attorney’s fees and expenses incurred
incident to defending this appeal.
For the following reasons, the decision of the circuit court is affirmed and remanded.
III. STANDARD OF REVIEW
As in all non-jury cases, we review the trial court’s findings of fact de novo with a
presumption of correctness, unless the evidence preponderates otherwise. Tenn. R. App.
P. 13(d); Armbrister v. Armbrister, 414 S.W.3d 685, 692 (Tenn. 2013). We review
questions of law de novo with no presumption of correctness. Eberbach v. Eberbach, 535
S.W.3d 467, 473 (Tenn. 2017); Armbrister, 414 S.W.3d at 692 (citing Kendrick v.
Shoemake, 90 S.W.3d 566, 569 (Tenn. 2002)). A trial court’s interpretation of a contract,
such as an MDA, is a question of law, subject to de novo review with no presumption of
correctness. Barnes v. Barnes, 193 S.W.3d 495, 498 (Tenn. 2006) (citing Honeycutt v.
Honeycutt, 152 S.W.3d 556, 561 (Tenn. Ct. App. 2003)).
“With respect to a trial court’s findings of civil contempt, the factual issues of
whether a party violated an order and whether a particular violation was willful, are
reviewed de novo, with a presumption of correctness afforded the trial court’s findings.”
Lovlace v. Copley, 418 S.W.3d 1, 17 (Tenn. 2013) (citing Konvalinka v. Chattanooga-
Hamilton Cnty. Hosp. Auth., 249 S.W.3d 346, 356–57 (Tenn. 2008)). The decision to hold
a party “in civil contempt is reviewed using the abuse of discretion standard.” Id. “A court
abuses its discretion when it causes an injustice to the party challenging the decision by (1)
applying an incorrect legal standard, (2) reaching an illogical or unreasonable decision, or
(3) basing its decision on a clearly erroneous assessment of the evidence.” Lee Med., Inc.
v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010).
IV. DISCUSSION
A. The Parties’ MDA
We begin our discussion with the parties’ disagreement over the application of
paragraph 7 of their MDA. A marital dissolution agreement is a contract between a
husband and wife in contemplation of divorce proceedings. Eberbach, 535 S.W.3d at 474;
Gray v. Estate of Gray, 993 S.W.2d 59, 63 (Tenn. Ct. App. 1998) (citing Towner v. Towner,
858 S.W.2d 888 (Tenn. 1993)). Therefore, such agreements are “subject to the rules
governing construction of contracts.” Barnes, 193 S.W.3d at 498 (citing Johnson v.
Johnson, 37 S.W.3d 892, 896 (Tenn. 2001) overturned on other grounds by Howell v.
-5-
Howell, 137 S. Ct. 1400 (2017); Honeycutt, 152 S.W.3d at 561). As with every contract,
the primary goal of a court interpreting an MDA “is to ascertain and give effect to the intent
of the parties at the time the agreement was executed.” Foster v. Foster, No. M2016-
01749-COA-R3-CV, 2017 WL 2992979, at *3 (Tenn. Ct. App. July 14, 2017) (citing
Buettner v. Buettner, 183 S.W.3d 354, 358–59 (Tenn. Ct. App. 2005)). To “ascertain[] the
intent of the parties, the courts must begin with the language of the agreement itself.” Id.
at *3 (citing Long v. McAllister-Long, 221 S.W.3d 1, 9 (Tenn. Ct. App. 2006)). “The
provisions of [an] agreement must be construed together, and the language in each
provision must be given its natural and ordinary meaning.” Id.
If an MDA is clear and unambiguous, it must be enforced according to its plain
terms. Planters Gin Co. v. Fed. Compress & Warehouse Co., 78 S.W.3d 885, 890 (Tenn.
2002) (stating “the literal meaning of the language controls the outcome of contract
disputes”); Honeycutt, 152 S.W.3d at 561–62. A provision is ambiguous if there is “more
than one reasonable interpretation” of it. Planters Gin Co., 78 S.W.3d at 890. If an MDA
is approved by the trial court, it is incorporated into the final decree of divorce. Eberbach,
535 S.W.3d at 474 (citing Tenn. Code Ann. § 36-4-103(b)). “Once incorporated, issues in
the MDA that are governed by statutes, such as child support during minority and alimony,
lose their contractual nature and become a judgment of the court.” Id. “[O]n issues other
than child support during minority and alimony, the MDA retains its contractual nature.”
Id.
In the present case, the parties’ MDA was incorporated by reference in the final
decree of divorce and, therefore, remains contractual in nature. See Eberbach, 535 S.W.3d
at 474. Paragraph 7 of the parties’ MDA is the crux of this appeal. Husband has refused
to pay Wife one-half of the Bonus, claiming sentence one of paragraph 7 controls the
dispute. Under Husband’s interpretation, the Bonus is “in connection with work performed
after the execution of [the MDA]” rather than “in connection with [Husband’s] retirement
or his years of service” under sentence two. We agree with the trial court that this argument
is erroneous. Sentences one and two in paragraph 7 are unambiguous. Therefore, they will
be enforced according to the plain and ordinary meaning of their terms. See, e.g., Planters
Gin Co., 78 S.W.3d at 890; Honeycutt, 152 S.W.3d at 561–62.3 Sentence two clearly states
if a payment was in connection to Husband’s retirement or years of service, Wife shall
receive one-half of its net amount. In this case, the evidence shows such a connection.4
3
The parties agree paragraph 7 is unambiguous but disagree as to its meaning. Accordingly,
ambiguity does not result “merely because the parties may differ as to interpretations of certain of its
provisions.” Johnson, 37 S.W.3d at 896 (quoting Cookeville Gynecology & Obstetrics, P.C. v. Se. Data
Sys., Inc., 884 S.W.2d 458, 462 (Tenn. Ct. App. 1994)).
4
Note, sentence one states Husband may receive 100% of a payment, “even if paid to him at the
time of his retirement.” However, for this to occur, the payment must be made in connection with work
performed after the execution of the MDA. The timing of said payment would only be conditional to his
retirement, rather than the result of it.
-6-
Husband is correct that several of the conditions for the Bonus were satisfied
subsequent to the MDA’s execution. These conditions include Husband’s retirement in
February 2018; him being at least 60 years old at retirement; and him working 12 additional
months (10 after the final decree of divorce) after giving FedEx notice of his intent to retire.
However, this argument ignores several crucial facts. First, the Bonus was received as a
result of Husband’s retirement. Ms. Hutchison stated the Bonus “was a result of the end
of career retirement bonus.” The Bonus was not based on Husband’s additional or
exceptional service in the months following the final decree of divorce. Second, $40,000
of the Bonus was the result of Husband’s age and years of service as of November 2015,
before the MDA’s execution. Ms. Hutchinson explained the $40,000 was added according
to the payment chart in Section 28-F. Under the same system, if Husband had accrued only
23 years of service as of November 2015, the Bonus would have been reduced by $10,000.
This is true regardless of any additional work done after the execution of the MDA. While
Husband’s length of employment was not relevant to his eligibility for the Bonus, it
certainly was relevant in calculating the amount awarded. These facts clearly align with
sentence two of the MDA, which requires Husband to pay Wife one-half of “a one-time
lump sum payment in connection with [Husband’s] retirement or his years of service[.]”
As a result, Wife is entitled to one-half of the net amount of the Bonus, equaling
$22,013.09.
B. Contempt
We now turn to whether Husband should be found in civil contempt for failing to
abide by the terms of the MDA. Civil contempt based on the violation of a court order has
four elements:
First, the order alleged to have been violated must be “lawful.” Second, the
order alleged to have been violated must be clear, specific, and unambiguous.
Third, the person alleged to have violated the order must have actually
disobeyed or otherwise resisted the order. Fourth, the person’s violation of
the order must be “willful.”
Konvalinka, 249 S.W.3d at 354–55 (footnotes omitted).
An order is “lawful” if it is issued by a court with jurisdiction over the parties and
the subject matter of the case. Id. at 355; Brooks v. Brooks, No. E2010-02614-COA-R3-
CV, 2011 WL 13165394, at *2 (Tenn. Ct. App. Sept. 9, 2011). To be “clear, specific, and
unambiguous” the order must “precisely spell[] out the details of compliance in a way that
will enable reasonable persons to know exactly what actions are required or forbidden.”
Konvalinka, 249 S.W.3d at 355. Determining the ambiguity of an order in a contempt
action is subject to de novo review. Id. at 356. Whether a person “actually violate[s]” an
order is a factual determination based on a preponderance of the evidence. Id. (citing Doe
v. Bd. of Prof’l Responsibility, 104 S.W.3d 465, 474 (Tenn. 2003)). Lastly, “willful
-7-
conduct” is “intentional or voluntary rather than accidental or inadvertent.” Id. at 357
(quoting State ex rel. Flowers v. Tenn. Trucking Ass’n Self Ins. Group Trust, 209 S.W.3d
602, 612 (Tenn. Ct. App. 2006)). “[A] person acts ‘willfully’ if he or she . . . knows what
he or she is doing, and intends to do what he or she is doing.” Id. A trial court’s
determination of whether to hold a party in civil contempt is reviewed on an abuse of
discretion standard of review. Id. at 358 (citing Hawk v. Hawk, 855 S.W.2d 573, 583
(Tenn. 1993); Moody v. Hutchison, 159 S.W.3d 15, 25–26 (Tenn. Ct. App. 2004)).
There is no dispute that the final decree of divorce, which incorporated the MDA,
is a lawful order. For the reasons stated above, by the terms of the MDA, the order was
clear, specific, and unambiguous. Paragraph 7 adequately describes the type of payments
that would entitle Wife to one-half of the net amount. By its terms, Wife is entitled to
payments made in relation to Husband’s retirement or his age and years of service. Both
possibilities have occurred with the Bonus. The wording on this issue is unambiguous.
Further, despite Husband’s contentions to the contrary, the trial court did make the
necessary findings to ascertain which sentence to apply in paragraph 7. See Tenn. R. Civ.
P. 52.01 (stating in bench trials “the court shall find the facts specially and shall state
separately its conclusions of law and direct the entry of the appropriate judgment”). In its
oral ruling, the trial court considered the evidence presented and described its reasoning in
applying sentence two.5 Because paragraph 7 is unambiguous, the court was not required
to make a finding on its meaning at the outset.
It is undisputed that sentence two of paragraph 7 is unambiguous and controls the
facts of this case. Husband violated the MDA by refusing to pay Wife one-half of the
Bonus. As stated by the trial court, Husband had the funds to pay Wife her share of the
Bonus, but he refused to do so. We find no error in the court’s reasoning. The evidence
does not show the court abused its discretion in finding Husband to be in contempt of the
prior order. Therefore, we affirm the trial court’s decision to hold Husband in civil
contempt for willfully violating the terms of the MDA as incorporated into the final decree
of divorce.
C. Attorney’s Fees
We will collectively address the issues raised regarding attorney’s fees awarded by
the trial court and those requested on appeal. Generally, Tennessee follows the “American
Rule” on attorney’s fees. Eberbach, 535 S.W.3d at 474. Under the American Rule, parties
are responsible for their own attorney’s fees. Id. (citing Cracker Barrel Old Country Store,
Inc. v. Epperson, 284 S.W.3d 303, 308 (Tenn. 2009)). There are two exceptions to this
5
The trial court incorporated a transcript of its oral findings of fact and conclusions of law into its
order. In said transcript, the court refers to paragraph 6, rather than 7 of the MDA. It is apparent from the
record that the court merely misspoke and was actually analyzing the provisions of paragraph 7 of the
MDA.
-8-
rule, one of which is a “contractual or statutory provision [that] creates a right to recover
attorney’s fees.” Id. Attorney’s fees provisions are common in marital dissolution
agreements. See id. at 474–75. In such cases, “at the trial court level . . . parties are
contractually entitled to recover their reasonable attorney’s fees when they have an
agreement that provides the prevailing party in a litigation is entitled to such fees.” Id. at
478 (citing Seals v. Life Inv’rs Ins. Co. of Am., No. M2002-01753-COA-R3-CV, 2003 WL
23093844, at *4 (Tenn. Ct. App. Dec. 30, 2003); Hosier v. Crye–Leike Commercial, Inc.,
No. M2000-01182-COA-R3-CV, 2001 WL 799740, at *6 (Tenn. Ct. App. July 17, 2001)).
When a contractual term controls the award of attorney’s fees, the trial court has no
discretion in whether to award them to the prevailing party. Id. It may only determine
whether the amount of attorney’s fees is reasonable. Id.
To prove reasonableness of attorney’s fees, at a minimum, the asserting party should
produce an affidavit or testimony of the attorney’s hourly rate and time spent. Coleman v.
Coleman, No. W2011-00585-COA-R3-CV, 2015 WL 479830, at *11 (Tenn. Ct. App. Feb.
4, 2015); Janoyan v. Janoyan, No. E2013-01669-COA-R3-CV, 2015 WL 274618, at *5
(Tenn. Ct. App. Jan. 21, 2015). A trial court’s finding of reasonableness of attorney’s fees
will stand unless the record contains evidence that the fees are unreasonable. See Coleman,
2015 WL 479830, at *11; Janoyan, 2015 WL 274618, at *5. So long as the court’s award
is reasonable, “the trial court need not have a ‘fully developed record of the nature of the
services rendered’ before awarding attorney’s fees.” Coleman, 2015 WL 479830 at *11
(quoting Kahn v. Kahn, 756 S.W.2d 685, 696 (Tenn. 1988)).
Paragraph 23 of the parties’ MDA states:
In the event that it should be determined, . . . , that either party has
willfully breached any provision of this Agreement, then the breaching party
shall pay to the other party all reasonable attorneys’ fees and costs incurred
in the enforcement of any such provision or provisions as such are adjudged
by the Court upon full hearing.
Seeking to enforce paragraph 7 of the MDA, Wife requested attorney’s fees for her
Petition for Scire Facias and Citation for Civil Contempt and for Attorney Fees, her
response to Husband’s Rule 52 Motion for Additional Findings of Fact and Conclusions of
Law and/or Rule 59 Motion to Alter or Amend the Court’s Order, and her response to
Husband’s appeal. Wife supported her attorney’s fees incurred in the trial court with three
affidavits from her counsel, Vickie Hardy Jones. Ms. Jones’s affidavits included her hourly
rate, the number of hours spent, and an itemized list of duties undertaken. In total, Wife
incurred $12,412.68 in attorney’s fees in the trial court proceedings. Husband asserts the
trial court erred in awarding Wife attorney’s fees below and requests that he be awarded
attorney’s fees on appeal.
Relying on Ms. Jones’s affidavits, the trial court found Wife’s fees to be reasonable
-9-
and necessary. The court relied on the factors listed in Connors v. Connors, 594 S.W.2d
672, 676 (Tenn. 1980) and Tennessee Supreme Court Rule 8, Rule of Professional Conduct
1.5 to make its findings. The court stated the fees sought were customary in the Shelby
County area for similar legal services; that the fees were for several months of services;
and that Ms. Jones is a highly experienced and reputable attorney. Additionally, the court
applied paragraph 23 of the MDA in stating, “The Court has no discretion whether to award
attorney’s fees when the parties in post-divorce proceedings have a valid and enforceable
[MDA] which requires an award of attorney’s fees to the prevailing party.” (citing
Eberbach, 535 S.W.3d at 478). This court finds no evidence in the record to disturb these
conclusions.
Husband has failed to present evidence that tends to show Wife’s attorney’s fees are
unnecessary or unreasonable. Husband asserts Wife has not met her burden of proof on
this issue, but as stated above, the itemized affidavits of Ms. Jones are sufficient proof to
support an award of attorney’s fees. See Kahn, 756 S.W.2d at 696 (stating “a fully
developed record of the nature of services rendered [is not] a prerequisite to an award of
attorney’s fees in a divorce case”); Coleman, 2015 WL 479830, at *11; Janoyan, 2015 WL
274618, at *5. Further, the “American Rule” on attorney’s fees does not apply since
paragraph 23 of the MDA is a contractual agreement to the contrary. See Eberbach, 535
S.W.3d at 474. Wife has succeeded in defending the MDA in both her initial petition and
Husband’s later motion. Husband did not “win” his Rule 52/Rule 59 motion simply
because the court made additional findings. The trial court explicitly denied the motion
and simply reiterated the findings it had already made.
On appeal, Wife is again successful in defending the MDA. Paragraph 23 controls
the award of Wife’s attorney’s fees for defending this appeal. An attorney fee provision in
an MDA is as applicable on appeal as it is in the trial court. See id. at 478 (“It necessarily
follows that if an agreement is valid and enforceable, it must be enforced as written
regardless of whether the parties are before a trial court or an appellate court.”).
Therefore, we affirm Wife’s award of attorney’s fees for $12,412.68 incurred in the
trial court. Wife is awarded additional attorney’s fees for defending this appeal, the amount
of which will be determined by the trial court on remand. Husband’s request for attorney’s
fees on appeal is hereby denied.
V. CONCLUSION
For the reasons stated herein, the decision of the circuit court is affirmed and
remanded for further proceedings. Costs of this appeal are taxed to appellant, Robert Elmo
Cowan, Jr., for which execution may issue if necessary.
- 10 -
s/ Carma Dennis McGee
CARMA DENNIS MCGEE, JUDGE
- 11 -