Wife Granted Attorney Fees for Husband’s Failure to Follow Court Order

History: Husband and Wife were married for 26 years before divorcing. The parties ultimately reached an agreement as to how they would divide the marital property and debts, known as a Marital Dissolution Agreement (MDA). The parties signed this contract, and it was submitted to the court for approval. In the MDA, the parties agreed to sell their marital residence and divide any proceeds from the sale equally. The MDA stated:

“The Parties shall each pay one-half of the mortgage payments, insurance and utilities commencing January 12, 2012 until the property is sold. A prior order was entered on January 8, 2012 whereby Husband agreed that he would make certain repairs to the property, which order remains in effect. The net proceeds of sale, after paying the note secured by a deed of trust, the real estate commission and closing costs shall be divided equally between the parties. In the event that the proceeds of sale are not sufficient to pay the note secured by deed of trust on said property, the real estate commission and closing costs, each party shall pay one-half of the deficiency.”

“In the event either party defaults in the performance of the provisions of this agreement and the other party is required to file an action to enforce the agreement and compel performance, the defaulting party will pay the attorney’s fees incurred by the other party.”

In October 2012, the Wife filed a petition alleging that Husband was in contempt for failure to reimburse Wife for one-half of the mortgage payments, insurance and utilities on the marital residence (which had not been sold), along with several other alleged failures of the Husband pursuant to the parties’ contract.

After a hearing, the trial court determined that Wife was entitled to a judgment in the amount of $3,884.73 for monies owed by Husband. However, the trial court denied Wife’s request for attorney fees pursuant to the Marital Dissolution Agreement. In declining this request, the Court noted that Husband’s actions were not contemptuous.

In Tennessee, a Marital Dissolution Agreement incorporated into a final decree of divorce is a “contract which is binding on the parties and as such it is ‘subject to the rules governing construction of contracts.'” Johnson v. Johnson, 37 S.W.3d 892, 896 (Tenn. 2011).

Wife appealed the trial court’s finding that she was not entitled to recover her attorney fees, and the Tennessee Court of Appeals found as follows:

Language regarding attorney fee reimbursement in a Marital Dissolution Agreement is subject to the usual rules of contract interpretation. The central tenet of contract construction is that the intent of the parties at the time of executing the agreement should govern. The Court of Appeals confirmed that the trial court had no discretion regarding whether to award attorney fees if the parties’ contract provides for such fees to be awarded. However, a court may consider the reasonableness of an attorney fee amount.

The record reflects that Wife was required to file several actions to compel Husband’s performance and that he failed to comply with the terms of the contract. The Court of Appeals concluded that Wife is entitled to an award of her attorney fees pursuant to the terms of the parties’ Marital Dissolution Agreement.

See Panda v. Panda for more detail on the Tennessee Court of Appeals decision related to enforcement of Tennessee Marital Dissolution Agreements and attorney fees. 

Attorney notes: This case clearly establishes that a party is entitled to recover attorney fees when the Marital Dissolution Agreement establishes that right, whether or not the other party is actually found to be in contempt. The fee recovery is a contractual obligation of the breaching party, and trial courts do not have discretion to essentially modify the parties’ prior agreement.

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