Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Eberbach v. Eberbach

Supreme Court of Tennessee, Nashville

May 23, 2017

ELIZABETH EBERBACH
v.
CHRISTOPHER EBERBACH

          Session: October 5, 2016

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

         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

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

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

          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.

          OPINION

          JEFFREY S. BIVINS, CHIEF JUSTICE.

         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."

         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.
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, ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.