Prevail and Recover - Attorney Fees Part 2

“I came, I saw, and overcame”

— 2 HENRY IV act 4, sc. 3; a soldier

“A victory is twice itself when the achiever brings home full numbers.”

— MUCH ADO ABOUT NOTHING act 1, sc. 1; Leonato, governor of Messina, discussing the outcome of a recent battle with a messenger

Another specific avenue to attorney fees in Tennessee is prevailing in a proceeding to modify a decree of alimony award. Tennessee Code Annotated section 36-5-103(c) states in part that:

A prevailing party may recover reasonable attorney's fees…from the nonprevailing party in any criminal or civil contempt action or other proceeding to enforce, alter, change, or modify any decree of alimony, child support, or provision of a permanent parenting plan order, or in any suit or action concerning the adjudication of the custody or change of custody of any children, both upon the original divorce hearing and at any subsequent hearing.

A prevailing party is, by definition, one that succeeds. “prevail,” Webster's Third New International Dictionary of the English Language Unabridged (1993) (“to be successful”). One scenario that establishes success for a party in Tennessee courts is when a plaintiff voluntarily non-suits a case without prejudice. Though voluntary non-suit ends the claim without relief and allows the plaintiff to refile later, established Tennessee law does not let them off the hook for attorney fees incurred to that point.

The Tennessee Supreme Court has recently held that when a plaintiff nonsuits their own petition to modify alimony, the defendant is considered the prevailing party for purposes of statutory or contractual attorney’s fee provisions. Colley v. Colley, 715 S.W.3d 293, 297 (Tenn. 2025). Thus, when a plaintiff nonsuits their claim, your defendant client can, under Tenn. Code Ann. §36-5-103(c), recover their attorney fees.

Add this to your tool bag, dear practitioner: When you prevail, don’t fail to recover your fees.