Amber D. Brewster v. Nicholas Galloway - Concurring ( 2012 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
May 22, 2012 Session
AMBER D. BREWSTER v. NICHOLAS GALLOWAY
Chancery Court for Anderson County
No. 09CH1098 Hon. William E. Lantrip, Chancellor
No. E2011-01455-COA-R3-CV-FILED-JULY 11, 2012
C HARLES D. S USANO, JR., concurring.
I concur in (1) the result reached by the majority and, with one caveat, (2) its rationale
in reaching that result. While I agree with the majority that “[t]he record before this [C]ourt
does not reflect that Father ever raised an issue regarding Mother’s ability to recover attorney
fees because she was never his spouse,” I disagree with the majority’s holding, in dicta, that
Tenn. Code Ann. § 36-5-103(c)(2010) supports such an award.
The cited statute identifies “the spouse” and “the other spouse” as those against whom
an award of attorney’s fees can be assessed in a case1 involving enforcement of a decree for
child support or “the adjudication of the custody or the change of custody” of a child. In my
judgment, this statute, by very explicit language, only involves a claim for attorney’s fees
against a spouse and has no application to paternity cases. In neither of the reported cases 2
cited by the majority is there any indication that the issue now under discussion was raised
by the party against whom an award of fees was made.
_______________________________
CHARLES D. SUSANO, JR., JUDGE
1
The statute also applies in an action to “enforc[e] any decree for alimony.” Alimony is not involved
in the present case.
2
See Miller v. Welch, 340 S.W.3d 708, 714-15 (Tenn. Ct. App. 2010) and Massey v. Casals, 315
S.W.3d 788, 799 (Tenn. Ct. App. 2009).