Elizabeth Eberbach v. Christopher Eberbach

IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
October 5, 2016 Session

ELIZABETH EBERBACH v. CHRISTOPHER EBERBACH

Appeal by Permission from the Court of Appeals
Chancery Court for Williamson County
No. 37317 James G. Martin, III, Judge
___________________________________

No. M2014-01811-SC-R11-CV – Filed May 23, 2017
___________________________________

We granted this appeal to determine whether the Court of Appeals may exercise
discretion and decline to award appellate attorney’s fees when the marital dissolution
agreement at issue contains a provision entitling the prevailing party to an award of such
fees. In this case, Husband and Wife were parties to a marital dissolution agreement that
was incorporated into their final divorce decree (“the Parties’ MDA”). The Parties’
MDA contained a provision for the award of attorney’s fees to the prevailing party in any
subsequent legal proceedings. Following a post-divorce proceeding that resulted in the
trial court granting relief and awarding attorney’s fees to Wife, Husband appealed. Wife
also prevailed on appeal and sought an award of appellate attorney’s fees from the Court
of Appeals under a statutory provision and under the Parties’ MDA. Exercising its
discretion, the Court of Appeals declined to award the requested fees under the statute.
The Court of Appeals erroneously failed to separately consider an award of the requested
fees under the Parties’ MDA. Accordingly, we reverse the Court of Appeals’ judgment
and remand this matter for further proceedings consistent with this Opinion.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals
Reversed and Remanded to the Chancery Court

JEFFREY S. BIVINS, C.J., delivered the opinion of the court, in which CORNELIA A.
CLARK, SHARON G. LEE, HOLLY KIRBY, and ROGER A. PAGE, JJ., joined.

Rose Palermo, Nashville, Tennessee, for the appellant, Elizabeth Eberbach.

Connie Reguli, Brentwood, Tennessee, for the appellee, Christopher Eberbach.
 OPINION

Factual and Procedural Background

Elizabeth Eberbach (“Wife”) and Christopher Eberbach (“Husband”) (collectively,
“the Parties”), were divorced on May 13, 2011. They are the parents of three children.
As a part of their divorce, the Parties entered into a marital dissolution agreement (“the
Parties’ MDA”), which, along with the Parties’ 2010 Parenting Plan (the “Parenting
Plan”), was approved by the court and incorporated into its Final Decree on May 13,
2011. The Parties’ MDA includes the following fee provision:

In the event it becomes reasonably necessary for either party
to institute legal proceedings to procure the enforcement of
any provision of this Agreement, the prevailing party shall
also be entitled to a judgment for reasonable expenses,
including attorney’s fees, incurred in prosecuting the action.

At the time of their divorce, both Wife and Husband resided in Williamson
County, Tennessee, but in 2013, Husband moved to Orlando, Florida.1 Subsequently, in
March 2014, Wife gave Husband notice of her intent to relocate to Ohio, and on April 28,
2014, Husband filed a motion in opposition to Wife’s relocation. On May 12, 2014, Wife
filed a response to Husband’s motion in opposition to her relocation. She also filed a
counter-motion to relocate with the children and to modify the Parties’ Parenting Plan
(“the Relocation Motion”). 2 Wife also requested attorney’s fees in the Relocation
Motion.

By written order filed on June 13, 2014, the trial court granted Wife’s motion
pendente lite, allowing her to move to Ohio pending final hearing. The order further
indicated that “[t]he parties will continue to operate under the permanent parenting plan
executed on November 19, 2010, and incorporated in the court’s Final Decree of Divorce
on May 13, 2011.”

1
The Parties’ 2010 Parenting Plan was not amended to take this move into account.
2
We note that, although a final judgment had been entered in the divorce action, these initial
pleadings in the instant action were filed as “motions” in the trial court as opposed to petitions with
leading process. Neither party has raised any issue concerning any question as to whether proper notice
and service were provided under the procedures followed in this case.

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 On June 18, 2014, after he had been ordered by the trial court to answer written
discovery and to appear for a deposition, Husband moved the trial court “for dismissal of
all pending matters . . . including, without limitation, his motion in opposition to
relocation of mother and to alter visitation or parenting time.” On June 19, 2014, Wife
filed a motion to dismiss Husband’s motion in opposition to her relocation for failure to
prosecute. In her motion, Wife requested sanctions because it was the second
post-divorce proceeding initiated by Husband in which he failed to appear or to comply
with discovery orders and then dismissed his action. Wife’s motion also asked the court
to award her attorney’s fees and costs. On June 20, 2014, Husband filed a notice of
dismissal, stating “that pursuant to T[ennessee] R[ule] [of] C[ivil] P[rocedure] 41,
[Husband] voluntarily dismisses, without prejudice, and discontinues all pending matters
since [Husband’s] April 28, 2014, Motion in Opposition to Relocation of Mother.” On
June 23, 2014, Wife filed a response to Husband’s notice of voluntary dismissal,
requesting that the court deny Husband’s proposed order of dismissal. She also asked the
court again to award her “a judgment against Husband in the amount of her attorney’s
fees and other costs incurred during this cause . . . .”

Husband filed a response to Wife’s June 19, 2014 motion to dismiss and for
sanctions. On July 1, 2014, the trial court held a hearing concerning Husband’s voluntary
dismissal and Wife’s June 19, 2014 motion to dismiss. The trial court also set the
Relocation Motion for final hearing on July 15, 2014.

On July 7, 2014, Wife filed a motion for judgment against Husband for
reimbursement of uncovered medical expenses. The Parenting Plan provides that the
children’s “uncovered reasonable and necessary medical expenses . . . will be paid by pro
rata share in accordance with [the Parties’] income[s].” The Parenting Plan lists
Husband’s monthly gross income as $27,766.00, and Wife’s monthly gross income as $0.
Wife asked the court to award her a judgment against Husband in the amount of
$26,669.31, plus her attorney’s fees and costs.

At the July 15, 2014 hearing, the trial court considered the Relocation Motion and
Wife’s motion for reimbursement of uncovered medical expenses, as well as her request
for attorney’s fees. With regard to Wife’s request for attorney’s fees during the hearing,
the trial court stated:

[T]he Court is satisfied that the attorney’s fees being
requested on behalf of Ms. Eberbach are very reasonable in
light of the extensive litigation that has been conducted in this
case since Ms. Eberbach gave notice to Mr. Eberbach that she
was relocating.

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 The Court will award attorney’s fees and expenses incurred
by Ms. Eberbach based on both the MDA, which incorporates
the permanent parenting plan order, as well as the provision
of Title 36, for the total amount requested by her . . . .

(Emphasis supplied).

Accordingly, after the hearing, the trial court ordered that (1) Wife be allowed to
relocate to Ohio with the children; (2) the Parenting Plan be modified accordingly; (3)
Wife be awarded a judgment against Husband for reimbursement of out-of-pocket
medical expenses in the sum of $26,096.50; and (4) Wife “be awarded her attorney’s fees
and expenses in the amount of $19,870 . . . based on the parties’ Marital Dissolution
Agreement, and the provisions of T.C.A. 36-6-108(i) and 36-5-121.”

Husband appealed and raised two issues. First, he claimed that the trial court erred
in awarding Wife a judgment for medical expenses when she did not comply with the
contractual terms set forth in the Parenting Plan. Second, he claimed that the trial court
erred in awarding Wife attorney’s fees. In the posture of Appellee, Wife requested an
award of appellate attorney’s fees and costs under the terms of the Parties’ MDA and on
the alternative ground that the appeal was frivolous pursuant to Tennessee Code
Annotated section 27-1-122. The Court of Appeals affirmed the trial court’s decision
awarding Wife a judgment for medical expenses, rejecting Husband’s argument that Wife
did not comply with the contractual terms of the Parenting Plan.

As to the issue of the trial court’s award of attorney’s fees, the Court of Appeals
concluded that the trial court did not abuse its discretion in awarding attorney’s fees and
costs under the Parties’ MDA, as well as under Tennessee Code Annotated Section 36-5-
103(c). However, it declined Wife’s request for an award of fees and costs on appeal.
While the Court of Appeals declined to award Wife fees under section 27-1-122, it did
not address whether Wife was entitled to fees on appeal under the Parties’ MDA. Wife
filed a petition to rehear, specifically requesting the Court of Appeals to consider her
claim for appellate attorney’s fees under the Parties’ MDA. The Court of Appeals
summarily denied Wife’s petition. Wife subsequently appealed on the sole issue of
whether she was entitled to appellate attorney’s fees.

DISCUSSION

Standard of Review

This case presents the issue of whether the Court of Appeals erred in failing to
consider an award of appellate attorney’s fees under the Parties’ MDA. This is a question
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of law. Accordingly, our review is de novo with no presumption of correctness accorded
to the conclusions of law of the courts below. Barnes v. Barnes, 193 S.W.3d 495, 498
(Tenn. 2006); Taylor v. Fezell, 158 S.W.3d 352, 357 (2005).

Analysis

In this appeal, Wife argues that the Court of Appeals erred by not addressing her
request for appellate attorney’s fees under the Parties’ MDA and declining to award her
discretionary attorney’s fees on appeal. Specifically, she contends that the Court of
Appeals lacks discretion to deny reasonable appellate attorney’s fees to prevailing parties
when there is a contract between the parties entitling the prevailing party to such fees.3

Tennessee has long followed the “American Rule” with regard to attorney’s fees.
State v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186, 194 (Tenn. 2000). This
Rule provides that “a party in a civil action may recover attorney’s fees only if: (1) a
contractual or statutory provision creates a right to recover attorney’s fees; or (2) some
other recognized exception to the American Rule applies, allowing for recovery of such
fees in a particular case.” Cracker Barrel Old Country Store, Inc. v. Epperson, 284
S.W.3d 303, 308 (Tenn. 2009) (citing Fezell, 158 S.W.3d at 359; John Kohl & Co. P.C.
v. Dearborn & Ewing, 977 S.W.2d 528, 534 (Tenn. 1998)). Otherwise, litigants are
responsible for their own attorney’s fees. Cracker Barrel Old Country Store, Inc., 284
S.W.3d at 309 (citing House v. Estate of Edmondson, 245 S.W.3d 372, 377 (Tenn.
2008)).

One of the most common exceptions to the American Rule involves contracts that
contain provisions expressly permitting or requiring the prevailing party to recover its
reasonable attorney’s fees incurred to enforce the contract. Cracker Barrel Old Country
Store, Inc., 284 S.W.3d at 309. Accordingly, parties who have prevailed in litigation to
enforce their contractual rights are entitled to recover their reasonable attorney’s fees
once they demonstrate that the contract upon which their claims are based contains a
provision entitling the prevailing party to its attorney’s fees. Id.

A marital dissolution agreement (“MDA”) is a contract entered into by a husband
and wife in contemplation of divorce. See Barnes, 193 S.W.3d at 498 (citing Johnson v.
Johnson, 37 S.W.3d 892, 896 (Tenn. 2001); Honeycutt v. Honeycutt, 152 S.W.3d 556,
561 (Tenn. Ct. App. 2003)). As a contract, a MDA generally is subject to the rules

3
We recognize that some contractual provisions may contain only permissive language, such as
“may award.” In those cases, both the trial and appellate courts may appropriately exercise their
discretion in any contractual award. Today, we deal solely with those contractual provisions that mandate
an award to the prevailing party.
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governing construction of contracts. Id. If approved by the trial court, the MDA is
incorporated into the decree of divorce, as it was in this case. See 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. See Towner v. Towner, 858 S.W.2d 888, 890 (Tenn. 1993); see
also Hogan v. Yarbro, No. 02A01-9905-CH-00119, 1999 WL 1097983, at *4 (Tenn. Ct.
App. Oct. 5, 1999). The trial court retains the power and discretion to modify terms
contained in the MDA relating to these statutory issues upon sufficient changes in the
parties’ factual circumstances. See Archer v. Archer, 907 S.W.2d 412, 418 (Tenn. Ct.
App. 1995). However, on issues other than child support during minority and alimony,
the MDA retains its contractual nature. See Towner, 858 S.W.2d at 890; Blackburn v.
Blackburn, 526 S.W.2d 463, 465 (Tenn. 1975); Yarbro, 1999 WL 1097983, at *4. Thus,
a MDA may include enforceable contractual provisions regarding an award of attorney’s
fees in post-divorce legal proceedings.

Parties to post-divorce proceedings seeking to recover appellate attorney’s fees
also may request an award of attorney’s fees on statutory grounds. Two statutes at their
disposal are Tennessee Code Annotated section 27-1-122, and Tennessee Code
Annotated section 36-5-103(c).4 Parties may seek attorney’s fees under either or both in
addition to their contractual claims. Each statute provides a separate basis for awarding
appellate attorney’s fees, see id., and each permits the court, within its discretion, to
award fees to a prevailing party, id.

Section 27-1-122, Tennessee’s frivolous appeals statute, provides:

When it appears to any reviewing court that the appeal from
any court of record was frivolous or taken solely for delay,
the court may, . . . award just damages against the appellant,
which may include but need not be limited to, costs, interest
on the judgment, and expenses incurred by the appellee as a
result of the appeal.

Tenn. Code Ann. § 27-1-122 (emphasis supplied). Thus, if the appellate court determines
that an appeal is frivolous, the appellate court may award attorney’s fees pursuant to this
statute. Any such award rests in the appellate court’s sound discretion. See Chiozza v.
Chiozza, 315 S.W.3d 482, 493 (Tenn. Ct. App. 2009) (“The decision to award damages
for the filing of a frivolous appeal [under section 27-1-122] rests solely in the discretion

4
Our discussion and focus on sections 27-1-122 and 36-5-103(c) is meant only to highlight two
frequently used statutes that provide for an award of attorney’s fees. It is not meant to be exhaustive or
indicate a preference for such attorney’s fee requests to be brought under these statutes.
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of this Court.”). This discretion is exercised “sparingly so as not to discourage legitimate
appeals.” Whalum v. Marshall, 224 S.W.3d 169, 181 (Tenn. Ct. App. 2006).

Likewise, Tennessee’s Enforcement of Orders statute, section 36-5-103(c),
provides:

The plaintiff spouse may recover from the defendant
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.

Tenn. Code Ann. § 36-5-103(c) (emphasis supplied). Section 36-5-103(c) authorizes
courts to award reasonable attorney’s fees to the prevailing party in an action to enforce
any decree for alimony, child support, or child custody. See § 36-5-103(c); Fezell, 158
S.W.3d at 359-60. Tennessee courts long 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. See Keyt v. Keyt, 244 S.W.3d 321, 334 (Tenn. 2007). In applying
section 36-5-103(c), this Court has held that “[i]n cases involving the custody and support
of children, . . . it has long been the rule in this State that counsel fees incurred on behalf
of minors may be recovered when shown to be reasonable and appropriate.” Fezell, 158
S.W.3d at 360 (citing Deas v. Deas, 774 S.W.2d 167, 169 (Tenn. 1989)). We have noted
in the context of section 36-5-103(c) that “[a]lthough there is no absolute right to such
fees, . . . their award in custody and support proceedings is familiar and almost
commonplace.” Id. (quoting Deas, 774 S.W.2d at 170).

Both of these statutes expressly provide for the use of the court’s discretion in
determining whether attorney’s fees are warranted in a particular case. See Tenn. Code
Ann. § 27-1-122; § 36-5-103(c). Thus, when litigants have sought attorney’s fees
pursuant only to one or both of these statutes, our courts have appropriately and
consistently exercised their discretion.5

5
See, e.g., Milam v. Milam, No. M2012-01659-COA-R3-CV, 2013 WL 5309816, at *5 (Tenn.
Ct. App. Sept. 19, 2013) (awarding appellate attorney’s fees to father and noting, “[t]he decision on
whether to award attorney’s fees [pursuant to section 36-5-103(c)] remains within the discretion of this
court”); Pounders v. Pounders, No. W2010-01510-COA-R3-CV, 2011 WL 3849493, at *5 (Tenn. Ct.
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 However, our courts have been inconsistent in their analysis of claims for
attorney’s fees in cases in which the claim is based on a contractual provision in a MDA
in addition to one or both of these statutory provisions. In such cases, the Court of
Appeals has not uniformly enforced attorney’s fees provisions in MDAs when those
provisions govern attorney’s fees in appellate proceedings. Some prior decisions by the
Court of Appeals have denied an award of attorney’s fees incurred on appeal based upon
an exercise of discretion by the Court of Appeals, even in the face of a controlling
contractual fee provision requiring such an award. See Grisham v. Grisham, No. W2010-
00618-COA-R3-CV, 2011 WL 607377, at *11 (Tenn. Ct. App. Feb. 22, 2011) (holding
that the trial court erred in failing to award wife her reasonable trial court attorney’s fees
pursuant to MDA fee provision, but declining to award appellate attorney’s fees pursuant
to the Court of Appeals’ discretion); Brown v. Brown, No. W2005-00811-COA-R3-CV,
2006 WL 784788, at *6 (Tenn. Ct. App. Mar. 29, 2006) (affirming the trial court’s award
of trial court fees under the parties’ MDA, but equitably denying wife’s request for
appellate fees pursuant to the Court of Appeals’ discretion); Elliott v. Elliott, 149 S.W.3d
77, 88 (Tenn. Ct. App. 2004) (affirming the trial court’s award of fees to wife pursuant to
parties’ MDA fee provision, but denying wife’s request for appellate attorney’s fees);
Dulin v. Dulin, No. W2001-02969-COA-R3-CV, 2003 WL 22071454, at *8, *10 (Tenn.
Ct. App. Sept. 3, 2003) (affirming trial court’s award of attorney’s fees pursuant to MDA,
but equitably declining to award either party attorney’s fees incurred on appeal).

At the same time, in other cases, the Court of Appeals has held that when a MDA
fee provision mandates an award of attorney’s fees to the prevailing party, the Court of
Appeals does not have discretion to deny an award of appellate attorney’s fees. See, e.g.,
Beem v. Beem, No. W2009-00800-COA-R3-CV, 2010 WL 1687782, at *9-10 (Tenn. Ct.
App. Apr. 28, 2010) (affirming trial court’s award of fees pursuant to MDA and holding
that wife was entitled to attorney’s fees on appeal pursuant to the parties’ MDA);

App. Aug. 31, 2011) (affirming an award of trial court attorney’s fees on appeal and stating, “[i]n sum,
we find no abuse of the trial court's discretion in its decision to award [m]other her attorney’s fees, as
such an award was authorized by Tennessee Code Annotated section 36-5-103(c)”); Lee v. Lee, No.
E2006-00599-COA-R3-CV, 2007 WL 516401, at *4 (Tenn. Ct. App. Feb. 20, 2007) (affirming the trial
court’s denial of fees to father and mother and noting, “[t]he express language of Tenn. Code Ann. § 36-
5-103(c) is such that an award of attorney fees is by no means automatic. The statute says attorney fees
‘may’ be awarded ‘in the discretion’ of the court”); see also Tavino v. Tavino, No. E2013-02587-COA-
R3-CV, 2014 WL 5430014, at *14 (Tenn. Ct. App. Oct. 27, 2014) (denying father’s request for fees
under section 27-1-122 pursuant to the court’s discretion); Clayton v. Clayton, No. W2007-01079-COA-
R3-CV, 2008 WL 2122332, at *13 (Tenn. Ct. App. May 21, 2008) (determining that father’s appeal was
devoid of merit and awarding damages pursuant to mother under section 27-1-122); Long v. Long, No.
M2004-01697-COA-R3-CV, 2006 WL 2069412, at *4 (Tenn. Ct. App. July 25, 2006) (exercising its
discretion and awarding fees on appeal to wife pursuant to section 27-1-122).

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Treadway v. Treadway, No. M2014-00898-COA-R3-CV, 2015 WL 1396652, at *7
(Tenn. Ct. App. Mar. 24, 2015) (awarding appellate attorney’s fees pursuant to the
parties’ MDA); Brinton v. Brinton, No. M2009-02215-COA-R3-CV, 2010 WL 2025473,
at *6 (Tenn. Ct. App. May 19, 2010) (same); Corbin v. Corbin, No. W2008-00437-COA-
R3-CV, 2009 WL 454134, at *7 (Tenn. Ct. App. Feb. 24, 2009) (same); Waugh v.
Waugh, No. M2006-021540COA-R3-CV, 2007 WL 2200278, at *4 (Tenn. Ct. App. July
30, 2007) (same); Hogan, 1999 WL 1097983, at *4-5 (reversing trial court’s denial of
attorney’s fees, and awarding attorney’s fees to Mother for trial court and appellate level
proceedings pursuant to the parties’ MDA).

Finally, some of our courts have observed that “[a]n award of appellate attorney
fees in Tennessee is within the court’s sound discretion,” Wilkinson v. Wilkinson, No.
W2012-00509-COA-R3-CV, 2013 WL 614708, at *10 (Tenn. Ct. App. Feb. 19, 2013),
but have then gone on to award attorney’s fees on appeal solely on the basis of the
parties’ MDA fee provisions without further discussion, id. at *10 (affirming trial court’s
award of fees and finding that Wife was entitled to recover reasonable appellate
attorney’s fees “[b]ased upon the plain language of the MDA” (citing Archer, 907
S.W.2d at 419) (emphasis supplied)). See also Hanna v. Hanna, No. W2014-02051-
COA-R3-CV, 2015 WL 1951932, at *4 (Tenn. Ct. App. Apr. 30, 2015) (stating its
discretion then awarding fees on appeal based on the parties’ MDA requiring that the
“court shall award reasonable attorney’s fees to the party seeking to enforce [the MDA]”)
(alterations in original); Williams v. Williams, No. M2013-01910-COA-R3-CV, 2015
WL 412985, at *14 (Tenn. Ct. App. Jan. 30, 2015) (affirming the trial court’s award of
fees pursuant to the parties’ MDA, stating its discretion and determining that wife was
entitled to attorney’s fees on appeal pursuant to the parties’ MDA); Dodd v. Dodd, No.
M2011-02147-COA-R3-CV, 2012 WL 3193339, at *6 (Tenn. Ct. App. Aug. 6, 2012)
(holding that Mother was entitled to recover her trial court attorney’s fees pursuant to the
parties’ MDA, but using its discretion and concluding that Mother was justified in
recovering attorney’s fees) (emphasis supplied).

We now take this opportunity to clarify the appropriate analysis for appellate
courts to utilize in determining whether to award appellate attorney’s fees.

Fee requests made pursuant to contractual and statutory authority must be
analyzed separately, though they will often be requested together. In cases in which
parties seek an award of attorney’s fees under statutory authority alone, the statute
governs the award of fees. In such cases, the statute is the recognized exception to the
American Rule and is the basis for the court’s authority to grant fees on appeal. Thus,
when appellate attorney’s fees are requested pursuant to statutes like section 27-1-122
and section 36-5-103(c), which expressly permit the court to exercise its discretion, the

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Court of Appeals should analyze any such request by exercising its discretion to
determine whether an award to the prevailing party is appropriate.

The same is not true when the parties to post-divorce litigation have a marital
dissolution agreement that contains a mandatory fee award provision. Our courts long
have observed at the trial court level that 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. See, e.g, 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). In such cases, the trial court does not
have the discretion to set aside the parties’ agreement and supplant it with its own
judgment. See Christenberry v. Tipton, 160 S.W.3d 487, 494 (Tenn. 2005) (“A court
‘cannot under the guise of construction make a new and different contract for the
parties.’” (quoting Memphis Furniture Mfg. Co. v. Am. Cas. Co., 480 S.W.2d 531, 533
(Tenn. 1972)). The sole discretionary judgment that the trial court may make is to
determine the amount of attorney’s fees that is reasonable within the circumstances. See
Hosier, 2001 WL 799740, at *6; Albright v. Mercer, 945 S.W.2d 749, 751 (Tenn. Ct.
App. 1996); Airline Constr. Inc. v. Barr, 807 S.W.2d 247, 270 (Tenn. Ct. App. 1990); see
also Connors v. Connors, 594 S.W.2d 672, 676 (Tenn. 1980) (setting out the appropriate
factors to be used as guides in fixing reasonable attorney’s fees); Tenn. Sup. Ct. R. 8,
Rule 1.5.

The same is and must be true of our appellate courts. A marital dissolution
agreement is a contract and as such is subject to the rules governing construction of
contracts. Barnes, 193 S.W.3d at 498 (citing Johnson, 37 S.W.3d at 896). Absent fraud,
mistake, or some other defect, our courts are required to interpret contracts as written,
giving the language used a natural meaning. U.S. Bank, N.A. v. Tennessee Farmers Mut.
Ins. Co, 277 S.W.3d 381, 386-87 (Tenn. 2009). This axiomatic rule does not change or
lose its force because the parties to an agreement are before an appellate court. Indeed,
one of the bedrocks of Tennessee law is that our courts are without power to make
another and different contract from the one executed by the parties themselves. Dubois v.
Gentry, 184 S.W.2d 369, 371 (Tenn. 1945); see also Bob Pearsall Motors, Inc. v. Regal
Chrysler-Plymouth, Inc., 521 S.W.2d 578, 580 (Tenn. 1975) (“The courts, of course, are
precluded from creating a new contract for the parties.”).

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. Accordingly, we hold that the Court of Appeals has no discretion
whether to award attorney’s fees when the parties have a valid and enforceable marital
dissolution agreement which requires an award of reasonable attorney’s fees to a
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prevailing or successful party. When such a MDA exists, it is subject to the normal rules
of contractual interpretation and enforcement. If the MDA is determined to be a valid
and enforceable agreement, the terms of the parties’ agreement govern the award of fees,
and the court must enforce the parties’ terms to the extent the agreement demands.

Because fee provisions in marital dissolution agreements are binding on the
parties, when confronted with a request for fees under both contractual and statutory
authority, our courts should look to the parties’ contract first before moving on to any
discretionary analysis under statutes such as section 36-5-103(c) and section 27-1-122.
Courts reviewing requests for fees pursuant to a MDA fee provision should first
determine whether the parties have a valid and enforceable MDA that governs the award
of attorney’s fees for the proceeding at bar. If so, our courts must look to the actual text
of the provision and determine whether the provision is mandatory and applicable. If so,
the MDA governs the award of fees, and our courts must enforce the parties’ contract.

If the court determines the MDA is inapplicable to the case, it should so state on
the record and then turn to the parties’ statutory claims under which any award of fees is
within the sound discretion of the trial or appellate courts unless otherwise specified in
the statute. Even if the court determines that an award of attorney’s fees is mandated by
the terms of the MDA, the court still should also review the claims for fees or expenses
under any applicable statutory authority.6

While we hold that our courts do not have discretion to deny an award of fees
mandated by a valid and enforceable agreement between the parties, nothing in this
decision affects or limits the discretion our courts have in determining the reasonableness
and appropriate amount of such awards pursuant to the factors set out in Connors and
Tennessee Supreme Court Rule 8. See Connors, 594 S.W.2d at 676-77; Tenn. Sup. Ct.
R. 8, Rule 1.5.

Turning to the instant case, the Court of Appeals affirmed the trial court’s award
of attorney’s fees to Wife but did not address the Parties’ MDA when it denied appellate
attorney’s fees to Wife. Instead, the court exclusively reviewed Wife’s request for fees
under section 27-1-122. When Wife filed a petition to rehear, the Court of Appeals
summarily denied Wife’s repeated request that the court consider the MDA provision for

6
It is important for our courts to ensure they conduct an analysis under both the parties’ contract
and any applicable statutes or other equitable grounds. In the event the award is reversed on one ground,
it may be upheld on another. Analyzing all applicable grounds for attorney’s fee awards ensures judicial
economy is maximized.
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attorney’s fees. The Court of Appeals erred in failing to address Wife’s request for
appellate attorney’s fees under the Parties’ MDA. 7

The trial court found the Parties’ MDA to be valid and enforceable and awarded
Wife trial court attorney’s fees and expenses in the amount of $19,780. The Court of
Appeals also found the Parties’ MDA to be valid and enforceable when it affirmed the
trial court’s award of attorney’s fees to Wife. Husband raised no defenses at trial or on
appeal as to the validity and enforceability of the Parties’ MDA. Accordingly, the
validity and enforceability of the Parties’ MDA is not before this Court. Therefore, we
turn to the question of whether the appellate attorney’s fees sought by Wife are within the
scope of the fee provision in the Parties’ MDA and whether that provision requires an
award of attorney’s fees on appeal. The Parties’ MDA states at Paragraph 18:

In the event it becomes reasonably necessary for either party
to institute legal proceedings to procure the enforcement of
any provision of this Agreement, the prevailing party shall
also be entitled to a judgment for reasonable expenses,
including attorney’s fees, incurred in prosecuting the action.

Thus, this agreement provides that if it is reasonably necessary for either Wife or
Husband to institute legal proceedings to procure the enforcement of any provision of the
agreement, “the prevailing party shall . . . be entitled to a judgment for reasonable
expenses, including attorney’s fees, incurred in prosecuting the action.” (emphasis
supplied). Thus, the applicability of the Parties’ MDA fee provision to Wife’s request for
appellate attorney’s fees turns on whether Wife was the “prevailing party” for those
claims in which she instituted proceedings to procure the enforcement of the Parties’
MDA in the trial court and at the Court of Appeals.

Under Tennessee’s “prevailing party” standard, Wife clearly was the prevailing
party at both the trial and appellate levels. See Fannon v. City of LaFollette, 329 S.W.3d
418, 432 (Tenn. 2010). By obtaining a judgment in her favor at the trial court and having
that judgment affirmed by the Court of Appeals, Wife “achieve[d] the primary benefit

7
We also note in this case that the Court of Appeals reviewed both the trial court’s grant of
attorney’s fees under the MDA and the reasonableness of the amount of the award under an abuse of
discretion standard. This was partially incorrect. With regard to the issue of whether Wife was entitled to
a grant of attorney’s fees under the MDA, the proper standard of review is de novo because the issue is a
question of law. The proper standard for reviewing the amount of the fees awarded under the MDA is
abuse of discretion. Conversely, with regard to a trial court’s award of attorney’s fees under section 36-5-
103(c), the Court of Appeals’ standard of review is abuse of discretion for both the issue of whether the
party is entitled to an award and the issue of the amount of the fees awarded.

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sought” in the proceedings, and the judgment in her favor “modifi[ed] the opposing
party’s behavior in a way that provide[d] a direct benefit” to her. See Fannon, 329
S.W.3d at 432. Because Husband appealed the trial court’s decision, Wife was forced to
defend her awards of reimbursement of uncovered medical expenses and attorney’s fees
in the Court of Appeals. Had she lost her appeal, her judgment would have been reversed
and her enforcement of the Parties’ MDA thwarted. The defense of Wife’s trial court
judgment at the Court of Appeals thus qualifies as “prosecuting the action” under a plain
reading of the Parties’ MDA fee provision. Accordingly, because she was the prevailing
party at both the trial and appellate levels, the Parties’ MDA entitles her “to a judgment
for reasonable expenses, including attorney’s fees, incurred in prosecuting the action” in
each of the proceedings.

Husband counters with several arguments which boil down to two contentions: (1)
that the issue of the Parties’ MDA is not properly before this Court; and (2) that neither
the Court of Appeals nor the Tennessee Supreme Court may enter an “original” award of
attorney’s fees under a contract because such an award would “abrogate an opposing
party’s contract defenses.” Both of these contentions are devoid of merit. The
interpretation of a contract is a question of law that we review de novo, and the issue is
properly before this Court. Whether the Parties’ MDA entitles Wife to fees on appeal is
the central issue in this case. As for his second contention, Husband had a full and ample
opportunity to raise any contract defenses to the fee provision in the Parties’ MDA at the
trial court level. He chose not to raise any contract defenses to the Parties’ MDA. In the
intermediate appellate court, Wife again requested fees pursuant to the MDA fee
provision, and again, Husband chose not to raise any defenses to the Parties’ MDA.
Husband’s failure to raise any such defenses before the trial court or the intermediate
appellate court clearly results in waiver and precludes Husband from asserting any
contract defenses in this Court.

Accordingly, we conclude that Wife was entitled to an award of appellate
attorney’s fees incurred before the Court of Appeals under the Parties’ MDA. Therefore,
we reverse the decision of the Court of Appeals. Likewise, Wife is entitled to an award
of attorney’s fees under the Parties’ MDA for attorney’s fees incurred in the appeal to
this Court. We remand the case to the trial court for a determination of the appropriate
amount of those fees.

CONCLUSION

For the foregoing reasons, we reverse the Court of Appeals’ denial of appellate
attorney’s fees to Wife, award Wife her attorney’s fees incurred in this appeal, and
remand the case to the trial court to determine the appropriate amount of Wife’s
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reasonable attorney’s fees on the appeal to the Court of Appeals and to this Court. Costs
of this appeal are assessed against Appellee, Christopher Eberbach, and his surety, for
which execution may issue, if necessary.

_________________________________
JEFFREY S. BIVINS, CHIEF JUSTICE

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