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Dale Robert Scherzer v. Melissa Marie Scherzer - Concurring
Citation: Not availableDocket: M2017-00635-COA-R3-CV
Court: Court of Appeals of Tennessee; May 24, 2018; Tennessee; State Appellate Court
Original Court Document: View Document
In the case of Dale Robert Scherzer v. Melissa Marie Scherzer, the Court of Appeals of Tennessee addressed an appeal regarding the termination or modification of transitional alimony. The trial court granted Mr. Scherzer's petition but did not grant his request for attorney fees. Mr. Scherzer initially failed to cite legal authority for his fee request, later invoking Tennessee Code Annotated 36-5-103(c) in response to a motion by Ms. Scherzer. The court correctly concluded that attorney fees could not be awarded under the version of 36-5-103(c) in effect at that time, as Mr. Scherzer sought to terminate rather than enforce the alimony decree. The trial court instead awarded attorney fees as spousal support under Tennessee Code Annotated 36-5-121, referencing the case Evans v. Evans. However, the majority opinion found this award inappropriate, noting the absence of proof that Mr. Scherzer was a disadvantaged spouse, despite evidence that Ms. Scherzer could not pay. The concurring opinion emphasized that 36-5-121 does not apply to post-divorce modification proceedings, highlighting significant changes to the alimony statute since the Evans decision. Under the current statute, attorney fees may only be awarded in divorce, legal separation, or separate maintenance actions, and not in modifications. The statute specifies that attorney fees can be awarded as alimony in solido only in limited circumstances, reinforcing the conclusion that fees cannot be awarded in post-divorce modifications. A statute is only interpreted in context when ambiguous. Tennessee Code Annotated (T.C.A.) 36-5-103(c) allows trial courts to award attorney fees during the original divorce hearing and any subsequent hearings, a provision unchanged since the Evans decision. This language is not present in T.C.A. 36-5-121, both pre- and post-2005 amendment. The necessity of including attorney fees for enforcing alimony decrees in T.C.A. 36-5-103(c) suggests that such authority does not exist under T.C.A. 36-5-121. A recent amendment to T.C.A. 36-5-103(c), effective July 1, 2018, expanded the circumstances for awarding attorney fees in domestic relations cases, allowing a prevailing party to recover fees in proceedings that enforce, alter, change, or modify alimony decrees. If T.C.A. 36-5-121 already provided for attorney fees in modification proceedings, the amendment would be redundant. The Legislature is presumed to be aware of existing laws when enacting new legislation. The author concurs with the majority opinion, except for part VI.