IN THE COURT OF APPEALS OF TENNESSEE
BOBBY STEPHEN CANNON, )
)
Plaintiff-Appellant,)
FILED
C/A NO. 03A01-9702-CV-00059
)
) June 27, 1997
v. )
) Cecil Crowson, Jr.
) Appellate C ourt Clerk
)
TERRI LYN LIVINGSTON CANNON, ) APPEAL AS OF RIGHT FROM THE
) BLOUNT COUNTY CIRCUIT COURT
Defendant-Appellee, )
)
)
and )
)
)
)
BETTY LIVINGSTON, )
)
Intervening Party- ) HONORABLE W. DALE YOUNG,
Appellee. ) JUDGE
For Appellant For Appellee Terri Lyn
Livingston Cannon
F. D. GIBSON R. D. HASH
KEVIN TEFFETELLER Maryville, Tennessee
Maryville, Tennessee
For Appellee Betty Livingston
NO APPEARANCE
OPINION
AFFIRMED AND REMANDED Susano, J.
1
This is a post-divorce dispute concerning the custody
of Tabitha LeAnn Cannon, age ten. The order of the trial court,
from which this appeal was taken, denied the petition of the
child’s father, Bobby Stephen Cannon (Father), for change of
custody. Instead, the trial court continued the child’s custody
in her mother, Terri Lyn Livingston Patterson (Mother), who had
been granted sole legal custody of the child when she and Father
were divorced on February 12, 1987. On this appeal, Father
initially raised two issues. He argued that the trial court
abused its discretion in failing to change custody. He also
contended in his brief that “the trial court erred in awarding
legal fees to a non-successful intervening party,” i.e., the
child’s maternal grandmother, Betty Livingston (Intervening
Party).
At oral argument, Mother and Father presented this
court with an agreed order providing that they had
settled all issues regarding custody of the
minor child by Agreed Order submitted to
[the] Blount County Circuit Court in which
[Father] shall receive full legal custody of
the child.
The panel of this court assigned to hear this case signed the
order, and it was filed with the clerk of this court on May 14,
1997. Therefore, the only issue now before us is the propriety
of the trial court’s order providing that the attorney’s fees of
the Intervening Party in the amount of $3,528.75 are “to be
divided equally between the parties,” i.e., Father and Mother.
2
I
Shortly after the Cannons’ divorce, Mother permitted
the minor child to go to Mississippi to visit with Intervening
Party. The stay became an extended one. The child remained
continuously with Intervening Party in Mississippi until
December, 1987, when both returned to Blount County. Thereafter,
the child continued to live with Intervening Party in Blount
County or Knox County and was residing there at the time of the
hearing below. While the child’s primary residence was with
Intervening Party, she visited her parents on a regular basis.
Intervening Party had secured an order from the Blount
County Juvenile Court on September 12, 1988, vesting “the
exclusive custody and control” of the child in Intervening Party.
Intervening Party and the child’s parents operated under this
order, which included visitation “privileges” for both parents,
until Judge W. Dale Young, Judge of the Blount County Circuit
Court, held in the instant case on June 7, 1995, that the
Juvenile Court order was void because that court lacked subject
matter jurisdiction to enter it.
II
After Father filed his petition for change of custody
in the instant case, the maternal grandmother filed a motion to
intervene in this proceeding, in which motion she made the
following allegations:
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Petitioner avers that she is the maternal
grandparent of the parties’ minor child,
Tabitha Leann Cannon, that she has had the
physical custody of the minor child for a
long period of time, and that she loves this
child and has cared for and supported this
child since being awarded custody on the 12th
day of September, 1988, in the Juvenile Court
for Blount County, Tennessee.
Petitioner avers that it is in the best
interests of the minor child that she be
awarded permanent custody, reserving the
right of visitation to the parents.
In her petition, Intervening Party asked
[t]hat upon the hearing of this cause,
Intervening Petitioner be awarded the
physical custody of the parties’ minor child,
Tabitha Leann Cannon, subject to visitation
privileges of the Plaintiff and Defendant.
When this matter was heard in the Blount County Circuit
Court, the trial judge granted the motion to intervene and asked
Intervening Party’s counsel what relief she sought. Counsel
replied, in pertinent part, as follows:
I guess the Court needs to hear just a brief
history. We have literally had the care of
this child for eight or nine years. And this
grandmother has taken care of her, and she
has petitioned the Court for custody of the
child. Now we are realistic enough to know
that the current state of the law, since this
case has been pending is more--is pronounced
in favor of parents against third parties who
have the care of children, even for long
extended periods of time. And therefore; we
modify our position at this point. The Court
has made a statement that our daughter has
custody and we think that is proper. We
think at this time that’s a good thing for
the Court to decide, and we are asking that
custody be granted to her--or to stay with
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her I guess is more proper. There does need
to be a phasing-in period under the guidance
of Dr. Kaufman, and we basically have agreed
to that already.
So between the two of us there is not much of
a complaint with the Court. We do object to
Mr. Cannon’s obtaining custody of this child,
and I guess the reason we ought to be here as
a party is because my client has literally
had the physical custody of this child for
some time by agreement of both of these
parties, not just this lady, but also Mr.
Cannon.
III
Husband argues that when this case was tried below,
Intervening Party was no longer seeking custody, was ultimately
unsuccessful in persuading the court not to change custody to
Father, and is therefore not entitled to have her fees paid by
the natural parents. Mother joins in this position. We
respectfully disagree.
A trial court has discretion to award attorney’s fees
in custody proceedings. T.C.A. § 36-5-103(c); Graham v. Graham,
204 S.W. 987, 989 (Tenn. 1918); Sherrod v. Wix, 849 S.W.2d 780,
784-85 (Tenn.App. 1992). The Supreme Court has referred to such
awards as “familiar and almost commonplace.” Deas v. Deas, 774
S.W.2d 167, 170 (Tenn. 1989).
While ability to pay is a factor to be considered in
such awards, “trial courts may award attorney’s fees without
proof that the requesting party is unable to pay them as long as
the award is just and equitable under the facts of the case.”
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Sherrod, 849 S.W.2d at 785.
Father and Mother contend that Intervening Party is not
entitled to fees for two reasons: first, she was not seeking
custody at the time of the hearing, and second, she was
ultimately not successful in opposing Father’s request for change
of custody. We find neither argument persuasive. She was
successful in opposing Father’s request for change of custody
until sometime after the hearing below, when the child’s parents
entered into an agreed order granting Father the relief he
sought. In fact, the trial court’s first order following the
hearing in June, 1995, provided
[t]hat the Intervening Petitioner, Betty
Livingston, the grandmother of the minor
child, shall have physical custody of the
minor child, Tabitha Leann Cannon, with the
legal custody to remain with the mother,
Terri Patterson.
It was not until we remanded this case to the trial court for the
entry of a final order addressing Intervening Party’s request for
attorney’s fees that the trial court completely eliminated
Intervening Party from the custody “picture.”1
As to the argument that Intervening Party’s failure to
seek custody at the final hearing should make her ineligible to
receive attorney’s fees, we note that Intervening Party had
1
In its final order of September 19, 1996, the trial court awarded
Intervening Party attorney’s fees of $3,528.75 and again awarded Mother
custody of the minor child; however, this subsequent order did not award
Intervening Party physical custody of the child, as had the earlier order.
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something more than a pedestrian interest in this proceeding.
The child had been with Intervening Party for some eight years.
For approximately seven of those years, the child had been with
Intervening Party pursuant to, and the parties had operated
under, a Juvenile Court order, which, though ultimately
determined to be void, had addressed the respective rights of
these three parties with respect to this child. In our opinion,
the maternal grandmother was an appropriate party to this
proceeding. It is clear to us that but for the law’s general
preference for parents over third parties, she would have
continued to seek her granddaughter’s custody in this case.
Under the unique circumstances of this case, we do not
find that the evidence preponderates against the trial court’s
award of attorney’s fees. The award was “just and equitable
under the facts of the case.” See Sherrod, 849 S.W.2d at 785.
There has been no showing that the trial court abused its
discretion.
The order of the trial court is affirmed. Costs on
appeal are taxed half to the appellant and half to the appellee
Mother. This case is remanded to the trial court for the
enforcement of the trial court’s order and collection of costs
assessed below, all pursuant to applicable law.
__________________________
Charles D. Susano, Jr., J.
CONCUR:
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_______________________
Don T. McMurray, J.
_______________________
William H. Inman, Sr.J.
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