Joseph Tyree Glanton v. Brenda Richardson Glanton (Cherry) ( 1996 )

JOSEPH TYREE GLANTON, )
)
Plaintiff/Respondent/ )
Appellee, )
) Appeal No.
) 01-A-01-9601-PB-00013
VS. )
) Davidson Probate
) No. 85D-2766
BRENDA RICHARDSON GLANTON, )
(CHERRY) )
Defendant/Petitioner/
Appellant.
)
)
)
FILED
September 6, 1996
COURT OF APPEALS OF TENNESSEE Cecil W. Crowson
MIDDLE SECTION AT NASHVILLE Appellate Court Clerk
APPEALED FROM THE PROBATE COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE MARIETTA M. SHIPLEY, JUDGE
ROBERT A. ANDERSON
2021 Richard Jones Road, Suite 350
Nashville, Tennessee 37215
Attorney for Plaintiff/Respondent/Appellee
TIMOTHY L. TAKACS
201 Walton Ferry Road
Hendersonville, Tennessee 37077-0364
Attorney for Defendant/Petitioner/Appellant
AFFIRMED IN PART; REVERSED IN PART;
AND REMANDED
BEN H. CANTRELL, JUDGE
CONCUR:
TODD, P.J., M.S.
LEWIS, J.
OPINION
This appeal involves a post-divorce contempt proceeding. The
appellant, Mrs. Brenda Cherry, filed an unverified complaint in the Probate Court for
Davidson County seeking to recover unpaid child support from her former husband,
Mr. Songoleke Kurante Kotunu (formerly Joseph Tyree Glanton). Mr. Kotunu filed a
Motion to Dismiss arguing the Complaint was defective since Mrs. Cherry had not
verified it. The probate court agreed with Mr. Kotunu, and dismissed Mrs. Cherry’s
suit. The court also awarded Mr. Kotunu his attorneys fees. Mrs. Cherry asserts on
appeal that the probate court erred by requiring her to have verified her complaint, and
in granting Mr. Kotunu’s attorneys fees. We partially disagree with Mrs. Cherry, and
therefore affirm the probate court in part.
I.
In 1986 the Davidson County Probate Court granted the parties a
divorce. The court awarded custody of their minor child to Mrs. Cherry, and ordered
Mr. Kotunu to pay child support. On April 10, 1995, Mrs. Cherry filed a Complaint in
the Davidson County Probate Court against Mr. Kotunu, alleging that he was in
contempt of the probate court’s order requiring him to pay support. The Complaint
prayed that the court sentence him “to the workhouse for a period of six months or
until he purges himself of contempt.”
In response to Mrs. Cherry’s complaint Mr. Kotunu filed a Motion to
Dismiss pursuant to Tenn.R.Civ.P. 12.02(1). Mr. Kotunu’s defensive pleading
asserted that the court did not have jurisdiction over the subject matter because Mrs.
Cherry had not verified her Complaint. The trial court held that in a suit of this nature,
Tenn. Code Ann. § 21-1-108(2)(B)(I) requires litigants to verify their contempt
-2-
complaints. The court dismissed Mrs. Cherry’s suit and awarded Mr. Kotunu his
attorneys fees.
II.
We begin our determination by observing the law surrounding the
verification of complaints. Tenn.R.Civ.P. 11 provides that “except when otherwise
specifically provided for by rule or statute, pleadings need not be verified or
accompanied by affidavit.” Tenn. Code Ann. § 36-4-107 requires spouses to verify
their petitions for divorce by affidavit, unless they claim irreconcilable differences as
the grounds for the suit.
In Jones v. Jones, this Court stated:
The original proceeding is one of divorce. As such, it and all
subsequent proceedings thereunder are inherently equitable
in nature. Even though the matter is tried in the Circuit Court,
it is yet a Chancery matter. In hearing matters of this nature,
the Circuit Judge is clothed with all the powers of a
Chancellor and the matter is tried as a Chancery matter and
governed by the rules of the Equity Court. (Emphasis
supplied.)
486 S.W.2d 927, 931 (Tenn. Ct. App. 1972); citing Broch v. Broch, 164 Tenn. 219, 47
S.W.2d 84 (1932); Kizer v. Bellar, 192 Tenn. 540, 241 S.W.2d 561 (1951).
In this appeal the Complaint sought the recovery of unpaid child support
awarded in the original divorce. Thus, we consider the case a “subsequent
proceeding” to the original divorce and therefore, equitable in nature.
In Tennessee courts in divorce and support proceedings sit as courts
of equity. Hoyle v. Wilson, 746 S.W.2d 665, 671 (Tenn. 1988); citing Kizar v. Bellar,
192 Tenn. at 545, 241 S.W. at 563; Mayer v. Mayer, 532 S.W.2d 54, 58 (Tenn. Ct.
App. 1975). We recognize that the substantive law governing divorce in Tennessee
is purely statutory, and that divorce is not “a proceeding in equity in the traditional
-3-
sense.” Atchley v. Atchley, 585 S.W.2d 614, 619 (Tenn. App. 1978). The Tennessee
Supreme Court in Lingner v. Lingner stated:
Although a divorce suit is in the nature of a suit in equity . . .
nevertheless a divorce suit is Sui generis. The procedure is
controlled by statute. Pleading and practice in divorce cases,
as governed by statute, differ in many particulars from
pleading and practice in equity cases generally . . . such
cases stand upon grounds peculiar to themselves, and do not
fall within the ordinary rules governing chancery proceedings.
56 S.W.2d 749, 751 (Tenn. 1933); citing Hackney v. Hackney, 28 Tenn. (9 Humph.)
450 (1848).
Despite cases describing divorce as a proceeding which is not equitable
in the “traditional sense,” Atchley v. Atchley at 619, the Tennessee Supreme Court
has repeatedly held that courts in divorce cases sit as courts of equity. Hoyle v.
Wilson, at 671. They also hold that divorces are in the “nature of chancery.” Broch
v. Broch, 47 S.W.2d 84 (Tenn. 1932); Linger v. Linger at 751, Browder v. Browder,
221 S.W.2d 526, 527 (Tenn. 1949); Kizer v. Kizer, 241 S.W.2d 561, 563 (Tenn. 1951).
Our Supreme Court has also held that divorces “are tried according to
the forms of chancery and for all intents and purposes are chancery proceedings.”
Ballard v. Ballard, 455 S.W.2d 592, 593 (Tenn. 1970). Therefore, despite the
statutory basis of divorce, trial courts who hear divorce actions sit in equity, and the
proceedings are most appropriately tried as chancery matters.
Contempt actions in chancery court follow the statutory guidelines set
forth in Tenn. Code Ann. § 21-1-108 which states:
The rules of practice of the chancery court, made by
the chancellors, are by this Code made such, as follows:
...
(2) CONTEMPT
...
(B) In all cases of contempt committed not in the presence of
the court, the mode of procedure shall be as follows:
-4-
(I) A petition shall be filed stating the contempt complained of
supported by affidavit, together with such exhibits and returns
of officers, or certified copies thereof, as may fully show how
the contempt arose. (Emphasis supplied.)
Because this case involved a subsequent proceeding to a divorce it
should be tried as an equitable matter. Litigants in chancery court must support their
petitions for contempt with affidavits. Because Mrs. Cherry did not verify her petition
we affirm the trial court’s decision to dismiss it.
III.
We now turn to the issue of attorneys fees. Ordinarily, a litigant cannot
collect his attorney’s fees from his adversary, despite the merits of the suit or
defenses to it. Corinth Bank & Trust Co. v. Security Nat’l Bank, 252 S.W. 1001 (Tenn.
1923). The prevailing party cannot obtain attorneys fees absent: (1) a statute or rule
of court, or (2) contractual provisions between the litigants. Local 984, Int’l Bhd. of
Teamsters v. Humko Co., 287 F.2d 231 (6th Cir.) cert. denied, 366 U.S. 962, 81 S. Ct.
1922, 6 L. Ed. 2d 1254 (1961).
The probate court awarded the defendant, Mr. Kotunu, his attorneys
fees. However, the court did not provide any authority to support the award. Mrs.
Cherry objected, and requested a hearing which the trial court granted. Mr. Kotunu
filed a response to Mrs. Cherry’s objection and claimed that Tenn. Code Ann. § 36-5-
103(c) empowered the probate court to award attorneys fees. That statute states:
The plaintiff spouse may recover from the defendant spouse,
and the spouse or other person to whom custody of the child,
or children is awarded may recover from the other 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
-5-
whom such action or proceeding is pending, in the discretion
of such court. (Emphasis supplied.)
Notably, the statute does not state that a defendant spouse may recover
from a plaintiff spouse. Further, fee awards under subsection Tenn. Code Ann. § 36-
5-103(c) are not primarily for the benefit of the custodial parent but to facilitate a
child’s access to the courts. Sherrod v. Wix, 849 S.W.2d 780 (Tenn. Ct. App. 1992).
This appeal involves a defendant spouse recovering from a plaintiff spouse who is
attempting to enforce a decree for child support. Thus, Tenn. Code Ann. § 36-5-
103(c) does not provide a statutory basis for Mr. Kotunu’s award.
In his response to Mrs. Cherry’s objection Mr. Kotunu also cited Gaddy
v. Gaddy, 861 S.W.2d 236 (Tenn. Ct. App. 1993), a case involving a petition to modify
a custody arrangement. The petitioning spouse prevailed and the court awarded him
attorneys fees pursuant to Tenn. Code Ann. § 36-5-103(c). Thus, unlike this case, the
court awarded a plaintiff his fees.
Mr. Kotunu cites three cases in his appellate brief to support his
assertion that “[u]nder Tennessee law the trial court is vested with wide and broad
discretion in the allowance of attorneys fees in divorce and post-divorce domestic
proceedings.” The first of these, Elliot v. Elliot, involved a husband who petitioned the
court to modify his final divorce decree. 825 S.W.2d 87, 92 (Tenn. Ct. App. 1991).
The court refused, and awarded his former wife her attorney’s fees saying “[i]t was the
husband who brought this litigation forcing the wife to seek counsel.” Id. On its face
Elliot appears to provide Mr. Kotunu the precedent needed to obtain attorneys fees.
However, the Elliot court cited Threadgill v. Threadgill as its supporting authority. 740
S.W.2d 419, 426 (Tenn.Ct.App. 1987). We believe the Elliot Court mistakenly relied
on Threadgill v. Threadgill.
-6-
Threadgill v. Threadgill involved a petitioner seeking, among other
things, child support arrearage. The court in Threadgill awarded the petitioner her
attorneys fees but did not refer to Tenn. Code Ann. § 36-5-103(c). The Threadgill
court did state:
The trial court is vested with wide discretion in matters of the
allowance of attorney’s fees, and this Court will not interfere
except upon a showing of an abuse of that discretion.
Id., citing Marmino v. Marmino, 238 S.W.2d 105 (Tenn.Ct.App. 1950).
In Marmino this Court stated:
The Court is vested with wide discretion in matters of divorce,
alimony and attorney’s fee, custody and support of minor
children and appellate courts will not interfere except upon a
clear showing of an abuse of that discretion.
Id. at 105; citing Banks v. Banks, 18 Tenn.App. 347, 77 S.W.2d 74 (Tenn. 1934);
Walden v. Walden, 13 Tenn. App. 337 (1930); Riley v. Riley, 9 Tenn.App. 643 (1929).
We have reviewed Banks, Riley, and Walden. None of these cases
provide the authority to extend attorneys fees to a defendant spouse in a subsequent
proceeding to a divorce. Therefore, we do not view Threadgill v. Threadgill or Elliot
v. Elliot as supporting case law for Kotunu’s assertion that the trial court’s award of
attorneys fees were proper. Accordingly, we reverse the award.
IV.
For the foregoing, we affirm the lower court’s dismissal of the petition for
contempt. We reverse the award of attorney’s fees and remand the cause to the
Probate Court of Davidson Court for any further necessary proceedings. Tax the
costs on appeal to the parties equally.
_______________________________
BEN H. CANTRELL, JUDGE
CONCUR:
-7-
_______________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION
_______________________________
SAMUEL L. LEWIS, JUDGE