IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

January 28, 2021 Session

KIMBERLY ANNE MCGRATH v. MELISSA POWERS HESTER

Appeal from the Chancery Court for Wilson County

No. 2018CV261 C. K. Smith, Chancellor

___________________________________

No. M2019-02147-COA-R3-CV

___________________________________

This appeal arises from an action regarding life insurance proceeds. As part of a permanent 

parenting plan, both parents were to insure their respective lives for $300,000 until the 

child support obligation was completed, with the children named as the sole beneficiaries 

to the policies and the other parent named as trustee for the benefit of the children. The 

Trial Court granted summary judgment finding that the children had a vested interest in the 

life insurance policy but that they were only entitled to the portion of the proceeds 

equivalent to the remaining child support obligation. With the defendant’s concession on 

appeal that the children had a vested interest in the life insurance proceeds, that a 

constructive trust was appropriate, and that the most recent permanent parenting plan was 

controlling, the only issues before this Court involved the amount of life insurance 

proceeds to which the children were entitled and attorney’s fees. We modify the amount 

of the Trial Court’s judgment and hold that the children are entitled to the entire $300,000 

life insurance proceeds per the agreed permanent parenting plan. We affirm the Trial 

Court’s denial of attorney’s fees. Additionally, we deny the mother’s request for an award 

of attorney’s fees incurred on appeal. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court 

Affirmed in Part, Modified in Part; Case Remanded

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which THOMAS R.

FRIERSON, II, and KRISTI M. DAVIS, JJ., joined.

Donald Capparella, Kimberly Macdonald, Jacob R. Nemer, and Kristen B. Amonette, 

Nashville, Tennessee, for the appellant, Kimberly Anne McGrath.

Amy J. Farrar, Sonya S. Wright, and Amanda Moore, Murfreesboro, Tennessee, for the 

appellee, Melissa Powers Hester.

04/14/2021
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OPINION

Background

Kimberly Anne McGrath (“Mother”) and Brian Wayne Hester (“Father”) were 

married in 2002. The parents had two children during the marriage and divorced in 2009. 

Father obtained a term life insurance policy for $500,000 in 2005. From 2005 through 

2014, Mother was designated as the direct beneficiary of this policy under her former 

married name.

At the time of the parents’ divorce, the Davidson County Circuit Court (“Circuit 

Court”) entered a divorce decree approving the parents’ agreed permanent parenting plan. 

The 2009 permanent parenting plan designated Mother as the primary residential parent 

and ordered Father to pay $1,600 per month for child support for their two children. The 

2009 permanent parenting plan included the following provision relating to the life 

insurance requirement:

The ☐mother ☐father ☒both shall insure his/her own life in the minimum 

amount of $300.000.00 by whole life or term insurance. Until the child 

support obligation has been completed, each policy shall name the following 

as sole irrevocable primary beneficiary: ☐the other parent ☒ the other 

parent, as trustee for the benefit of the children, to serve without bond or 

accounting,  other :Please Type Other Information.

The Circuit Court entered an agreed order in 2010, allowing Mother to relocate with 

the children and modifying Father’s child support obligation to $910 per month. The life 

insurance provision remained the same. In 2011, Father married Melissa Powers Hester

(“Ms. Hester” or “Defendant”). The parents agreed to modify their permanent parenting 

plan again in 2013, and Father’s child support obligation was decreased to $679 per month. 

In the 2013 revised plan, the life insurance provision read as follows:

If agreed upon by the parties, the ☐mother ☐father ☒both shall insure 

his/her own life in the minimum amount of $300,000.00 by whole life or term 

insurance. Until the child support obligation has been completed, each policy 

shall name the child/children as sole irrevocable primary beneficiary, with 

the other parent as trustee for the benefit of the child(ren), to serve without 

bond or accounting.
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In 2014, Father designated his wife, Ms. Hester, as the direct beneficiary of his life 

insurance policy. The permanent parenting plan was again modified by the Circuit Court 

in 2017 by agreement of Mother and Father. This plan decreased Father’s child support 

obligation to $547 per month. The life insurance provision in this plan read as follows:

Both shall insure his/her own life in the minimum amount of $300.000.00 by 

whole life or term insurance. Until the child support obligation has been 

completed, each policy shall name the child/children as sole irrevocable 

primary beneficiary, with the ☒ other parent other ____________, as trustee 

for the benefit of the child(ren), to serve without bond or accounting.

Father subsequently died in September 2018 when the children were ages 11 and 13. At 

the time of his death, Father maintained the life insurance policy for $500,000 with Ms. 

Hester listed as the beneficiary on the policy.

Mother subsequently filed a complaint in the Wilson County Chancery Court (“Trial 

Court”), requesting a constructive trust and an emergency temporary restraining order.1 

According to Mother’s complaint, the proceeds of Father’s life insurance policy should be 

placed into a constructive trust and the life insurance company should be restrained from 

paying any proceeds of the life insurance policy to Ms. Hester or any other third party 

except the court clerk. The Trial Court entered an emergency temporary restraining order 

restraining and enjoining Northwestern Mutual Life Insurance Company “from paying any 

proceeds of any life insurance policy insuring the life of [Father], deceased, to [Ms. Hester], 

or to any third party other than the Clerk of [the Trial] Court.” An agreed order was later 

entered by the Trial Court instructing Northwestern Mutual Life Insurance Company to 

deposit the $300,000 disputed amount of the life insurance proceeds with the Trial Court 

clerk, with the remaining amount payable to Ms. Hester. Northwestern Mutual Life 

Insurance Company subsequently deposited such amount with the Trial Court clerk.

Mother filed a motion for summary judgment, as well as a memorandum of law in 

support of her motion, a statement of undisputed material facts, her affidavit, insurance 

policy documentation, and copies of the four permanent parenting plans with the respective 

court orders approving the plans. According to Mother, no genuine issue of material fact 

existed “as to the issue of the imposition of a constructive trust on the life insurance 

proceeds of [Father].” According to Mother, Father was required to maintain a life 

insurance policy for the children, and he failed to do so. Mother argued that she, as trustee 

for the children, had a vested interest in the life insurance proceeds due to the 2017 

 

1 The action initially included Northwestern Mutual Life Insurance Company as a defendant to this action. 

Upon the parties’ agreement, Northwestern Mutual Life Insurance Company deposited the life insurance 

proceeds at issue with the clerk of the Wilson County Chancery Court, and Mother voluntarily nonsuited 

all claims against the insurance company. 
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permanent parenting plan that required Father to maintain the children as beneficiaries of 

his $300,000 life insurance policy. Mother argued that the Trial Court should enter a 

judgment as a matter of law imposing a constructive trust for $300,000 of the life insurance 

proceeds and awarding that amount to Mother as trustee for the minor children. As part of 

her motion, Mother also requested an award of attorney’s fees and expenses. 

Ms. Hester subsequently filed a response to Mother’s summary judgment motion, a 

response to Mother’s statement of material facts with additional undisputed facts, an 

affidavit by her, case law, Mother’s response to a request for admissions, and affidavits 

from Derrick H. Green and Quincy L. Salam, counsel for Father during the proceedings to 

revise the parenting plan in 2017. In her response, Ms. Hester argued that an issue of 

material fact existed concerning whether Mother and Father were required to maintain a 

life insurance policy for the children after the 2013 permanent parenting plan. According 

to Ms. Hester, the 2013 permanent parenting plan made the life insurance requirement 

optional and Mother and Father had not intended to change the life insurance provision in 

the 2017 plan. Ms. Hester further argued that even if Mother and Father were required to 

maintain $300,000 life insurance policies as part of the 2017 plan, Mother never complied 

with the requirement and had unclean hands. Ms. Hester further argued that Mother did 

not meet the elements of a constructive trust, and even if a constructive trust was proper, 

the amount should be limited to the portion of the life insurance proceeds necessary to 

satisfy Father’s child support obligation. As such, Ms. Hester requested that the Trial Court 

deny Mother’s motion for summary judgment. 

Mother subsequently filed a reply to Ms. Hester’s response, stating that the 2017 

permanent parenting plan was agreed to by Mother and Father and approved by the court 

upon its determination that the plan was in the children’s best interest. According to 

Mother, the 2017 parenting plan was binding on Father. Mother argued that a constructive 

trust was appropriate. In addressing Ms. Hester’s argument concerning Mother’s “unclean 

hands,” Mother stated that this action was filed on behalf of the children, who had a vested 

right to the life insurance proceeds and with which there were no allegations of 

wrongdoing. 

Following a hearing during which the Trial Court heard arguments on behalf of the 

respective parties, the Trial Court found that no genuine issue of material fact existed and 

granted summary judgment in favor of Mother for the amount of Father’s remaining child 

support obligation that would be due for the children. In its judgment, the Trial Court 

stated as follows in pertinent part:

5. The children’s interest in the life insurance policy became vested when the 

Court entered its Order in 2009.

6. The life insurance policy was to insure the child support payments.
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7. The Plaintiff and Father, Brian Hester, attempted to modify the Permanent 

Parenting Plan in 2010, 2013, and 2017.

8. The attempted modifications of the vested interest of the children in the 

life insurance policy were void because they were an attempt to take the 

children’s property without due process of law.

a. No complaint was filed asking the Court to divest the children’s 

vested interest in the life insurance policy.

b. No guardian ad litem or attorney ad litem was appointed to protect 

the interest of the children.

c. The children were given no opportunity to defend their position in 

Court.

d. There was neither a hearing in Court nor a finding by the Court that 

it was in the children’s best interest to be divested of their interest in 

the life insurance policy.

9. Since the attempted changes in the Permanent Parenting Plan in 2010, 

2013, and 2017 are void as to the life insurance policy, the contents of the 

changes regarding the life insurance policy is irrelevant and non-binding on 

either party.

10. In regard to the life insurance policy only, the provisions of the 2009 

Permanent Parenting Plan and Order apply in this case.

11. The Court further finds that there is no just reason for delay in the entry 

of Judgment in this matter.

It is therefore ORDERED, ADJUDGED, and DECREED as follows:

1. The Plaintiff is granted a Judgment as a matter of law against Defendant 

in an amount equal to the balance of the child support due to the children less 

any credits that the Father, Brian Hester, would be entitled to;

2. There is no constructive trust; Defendant, Melissa Powers Hester, did not 

acquire the benefits of the life insurance policy by fraud or any other 

wrongful conduct; 
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Mother timely appealed to this Court.

Discussion

Although not stated exactly as such, Mother raises six issues for our review on 

appeal: (1) whether the Trial Court erred by not awarding the children the entire portion 

of the $300,000 life insurance proceeds agreed to in the permanent parenting plan, (2) 

whether the Trial Court erred by declining to allow the children’s recovery in the form of 

a constructive trust with Mother as trustee for the children, (3) whether the legal effect of 

the life insurance provision in the four permanent parenting plans remained unchanged, (4) 

whether the Trial Court erred by determining the three modifications to the life insurance 

provision in subsequent permanent parenting plans to be void, (5) whether the Trial Court 

erred by failing to award Mother her attorney’s fees, and (6) whether Mother is entitled to 

an award of attorney’s fees on appeal. 

For purposes of appeal, Ms. Hester states in her appellate brief that she “concedes 

that the children have a vested interest in [Father’s] life insurance policy, that a constructive 

trust is appropriate, and that the 2017 Order is controlling.” Therefore, the remaining issues 

before this Court for review concern (1) whether the Trial Court erred by declining to award 

the children the entire $300,000 of the life insurance policy required by the permanent 

parenting plan, (2) whether the Trial Court erred by declining to award Mother her 

attorney’s fees, and (3) whether Mother should be awarded her attorney’s fees on appeal. 

In this case, the Trial Court granted summary judgment in favor of Mother. 

Concerning summary judgment, our Supreme Court has instructed:

Summary judgment is appropriate when “the pleadings, depositions, 

answers to interrogatories, and admissions on file, together with the 

affidavits, if any, show that there is no genuine issue as to any material fact 

and that the moving party is entitled to a judgment as a matter of law.” Tenn. 

R. Civ. P. 56.04. We review a trial court’s ruling on a motion for summary 

judgment de novo, without a presumption of correctness. Bain v. Wells, 936 

S.W.2d 618, 622 (Tenn. 1997); see also Abshure v. Methodist Healthcare–

Memphis Hosp., 325 S.W.3d 98, 103 (Tenn. 2010). In doing so, we make a 

fresh determination of whether the requirements of Rule 56 of the Tennessee 

Rules of Civil Procedure have been satisfied. Estate of Brown, 402 S.W.3d 

193, 198 (Tenn. 2013) (citing Hughes v. New Life Dev. Corp., 387 S.W.3d 

453, 471 (Tenn. 2012)).

* * *
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[I]n Tennessee, as in the federal system, when the moving party does not bear 

the burden of proof at trial, the moving party may satisfy its burden of 

production either (1) by affirmatively negating an essential element of the 

nonmoving party’s claim or (2) by demonstrating that the nonmoving party’s 

evidence at the summary judgment stage is insufficient to establish the 

nonmoving party’s claim or defense. We reiterate that a moving party 

seeking summary judgment by attacking the nonmoving party’s evidence 

must do more than make a conclusory assertion that summary judgment is 

appropriate on this basis. Rather, Tennessee Rule 56.03 requires the moving 

party to support its motion with “a separate concise statement of material 

facts as to which the moving party contends there is no genuine issue for 

trial.” Tenn. R. Civ. P. 56.03. “Each fact is to be set forth in a separate, 

numbered paragraph and supported by a specific citation to the record.” Id. 

When such a motion is made, any party opposing summary judgment must 

file a response to each fact set forth by the movant in the manner provided in 

Tennessee Rule 56.03. “[W]hen a motion for summary judgment is made 

[and] . . . supported as provided in [Tennessee Rule 56],” to survive summary 

judgment, the nonmoving party “may not rest upon the mere allegations or 

denials of [its] pleading,” but must respond, and by affidavits or one of the 

other means provided in Tennessee Rule 56, “set forth specific facts” at the 

summary judgment stage “showing that there is a genuine issue for trial.” 

Tenn. R. Civ. P. 56.06. The nonmoving party “must do more than simply 

show that there is some metaphysical doubt as to the material facts.” 

Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S. Ct. 1348. The 

nonmoving party must demonstrate the existence of specific facts in the 

record which could lead a rational trier of fact to find in favor of the 

nonmoving party. If a summary judgment motion is filed before adequate 

time for discovery has been provided, the nonmoving party may seek a 

continuance to engage in additional discovery as provided in Tennessee Rule 

56.07. However, after adequate time for discovery has been provided, 

summary judgment should be granted if the nonmoving party’s evidence at 

the summary judgment stage is insufficient to establish the existence of a 

genuine issue of material fact for trial. Tenn. R. Civ. P. 56.04, 56.06. The 

focus is on the evidence the nonmoving party comes forward with at the 

summary judgment stage, not on hypothetical evidence that theoretically 

could be adduced, despite the passage of discovery deadlines, at a future trial.

Rye v. Women’s Care Cntr. of Memphis, MPLLC, 477 S.W.3d 235, 250, 264-65 (Tenn. 

2015).

The issue in this case involves interpretation of a life insurance provision in an 

agreed permanent parenting plan. As this Court has held, an agreed parenting plan should 
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be interpreted as a binding agreement between the parents. See Pierce v. Pierce, No. 

W2017-02447-COA-R3-CV, 2018 WL 6070025, at *7 (Tenn. Ct. App. Nov. 19, 2018); 

see also Sharp v. Stevenson, No. W2009-00096-COA-R3-CV, 2010 WL 786006, at *6 

(Tenn. Ct. App. Mar. 10, 2010) (“[O]ur holding reflects the intention of the legislature that 

parenting plans be interpreted as binding agreements between two parents who, although 

divorced, continue in their roles of parents.”). Concerning written agreements, our

Supreme Court has stated:

The interpretation of written agreements . . . is a matter of law that this Court 

reviews de novo on the record according no presumption of correctness to 

the trial court’s conclusions of law. See Guiliano v. Cleo, Inc., 995 S.W.2d 

88, 95 (Tenn. 1999); Union Planters Nat’l Bank v. Am. Home Assurance Co.,

865 S.W.2d 907, 912 (Tenn. Ct. App. 1993). A cardinal rule of contract 

interpretation is to ascertain and give effect to the intent of the parties. 

Christenberry v. Tipton, 160 S.W.3d 487, 494 (Tenn. 2005). In interpreting 

contractual language, courts look to the plain meaning of the words in the 

document to ascertain the parties’ intent. Planters Gin Co. v. Fed. Compress 

& Warehouse Co., 78 S.W.3d 885, 889-90 (Tenn. 2002). This Court’s initial 

task in construing the [written agreement] is to determine whether the 

language is ambiguous. Id. at 890. If the language is clear and unambiguous, 

the literal meaning controls the outcome of the dispute. Id. If, however, the 

words in a contract are susceptible to more than one reasonable 

interpretation, the parties’ intent cannot be determined by a literal

interpretation of the language. Id.

Contractual language “is ambiguous only when it is of uncertain 

meaning and may fairly be understood in more ways than one.” FarmersPeoples Bank v. Clemmer, 519 S.W.2d 801, 805 (Tenn. 1975). 

Allstate Ins. Co. v. Watson, 195 S.W.3d 609, 611 (Tenn. 2006).

During this appeal, the parties have agreed that the children had a vested interest in 

the proceeds of Father’s life insurance policy and that the 2017 permanent parenting plan 

is controlling in this case. We need not address that issue any further. The life insurance 

provision in that permanent parenting plan stated as follows:

Both shall insure his/her own life in the minimum amount of $300.000.00 by 

whole life or term insurance. Until the child support obligation has been 

completed, each policy shall name the child/children as sole irrevocable 

primary beneficiary, with the ☒ other parent other ____________, as trustee 

for the benefit of the child(ren), to serve without bond or accounting.
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The Trial Court found that the children were not entitled to the entire $300,000 of Father’s 

life insurance policy but only the amount sufficient to cover Father’s remaining child 

support obligation. However, Mother contends on appeal that the children were entitled to 

the entire $300,000 policy. Based on the language in the 2017 permanent parenting plan, 

we agree with Mother. 

The life insurance provision is clear that the parents were to each keep a $300,000 

insurance policy for the children so long as the child support obligation continued.

According to the 2017 plan, the children were to be named as the sole beneficiaries to the 

$300,000 life insurance policy with the other parent to be named as the trustee for the 

children. Therefore, Mother was to be the trustee for the children’s benefit on Father’s life 

insurance policy. Although Ms. Hester’s attorney argued during oral argument that equity 

demands the result by the Trial Court limiting recovery of the life insurance proceeds due 

to Mother’s noncompliance with the life insurance provision in the plan, we note that the 

children are the intended beneficiaries for the policy, not Mother. Mother is only the trustee

for the children’s benefit. The children, as the actual beneficiaries of the policies, should 

not be punished for Mother’s noncompliance with this provision. 

Additionally, we note that both parents had agreed to insure their respective lives 

with a $300,000 life insurance policy to benefit the children “[u]ntil the child support 

obligation has been completed.” Mother had an obligation to provide such a life insurance 

policy for the children, not just Father. Although Mother had not complied, she was 

required by the plan to insure her life with an equal life insurance policy despite her not 

having a child support obligation under any permanent parenting plan in the record. If the 

life insurance provision was intended to secure only the amount of Father’s child support 

obligation, it is unlikely that the same provision of the plan would have required Mother to 

have an equivalent life insurance policy in the absence of a child support obligation. 

Furthermore, Ms. Hester argues that the total amount of remaining child support 

when the initial 2009 permanent parenting plan was entered into totaled close to $300,000.2 

However, that amount had not been changed or lowered to correlate to the remaining child 

support in any subsequent plan. We note that Father’s child support obligation was $547 

per month in the April 2017 permanent parenting plan. When the 2017 plan was developed, 

the children were ages 12 and 10. At the time, Father’s remaining child support obligation 

would have been substantially less than the agreed upon $300,000 life insurance policy 

 

2

In her response to Mother’s motion for summary judgment, Ms. Hester stated that when the initial 

permanent parenting plans were entered into, Father “was looking at a total of $297,600 to be paid as child 

support.”
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provision, supporting that the life insurance provision was not meant solely to secure the 

remaining child support obligation.3

We make no determination concerning whether the children had a vested right in 

the life insurance policy that could not be modified after the initial permanent parenting 

plan. Ms. Hester’s concession in this case makes it unnecessary to make such a 

determination. Furthermore, we note that our conclusion regarding the amount of life 

insurance proceeds to which the children are entitled would be the same whether the 2009

permanent parenting plan or the 2017 permanent parenting plan were controlling. Neither 

plan provided that the life insurance benefits were intended to secure only the amount of 

the remaining child support obligation. The reference to child support in the provision at 

issue only provided a timeframe for which the parents were to continue the life insurance

requirement.

On appeal, Mother argues that the children had a vested interest in the entire 

$300,000 life insurance proceeds and cited to our Supreme Court’s decision in Holt v. Holt. 

995 S.W.2d 68, 77 (Tenn. 1999) (“[W]e find that the divorce decree creates in [the child] 

a vested right to any life insurance policy obtained by the Decedent that satisfies the 

mandate in the decree.”). However, Ms. Hester cites to this Court’s opinion in Layton v. 

Life USA, No. W1999-02274-COA-R3-CV, 2000 WL 633443 (Tenn. Ct. App. May 12, 

2000), as being more persuasive in this case. We find that Layton is distinguishable from 

the present case. In Layton, this Court held that the children had a vested interest in the 

father’s life insurance proceeds but limited their recovery to the father’s child support 

obligation. Id. at 8-11. However, we note that the parents in Layton had not entered into 

an agreed permanent parenting plan with a life insurance provision that included a specific 

amount of life insurance to which the children were entitled. Id. at *1-2. In response to a 

petition filed by the mother in Layton, the trial court entered a consent order requiring the 

father to provide proof that the children were his irrevocable beneficiaries on his existing 

policy so long as he had a child support obligation for them. Id. at *2. The consent order 

entered by the trial court in Layton did not specify an amount of life insurance the father 

was required to maintain for the children and stated that it was understood that the father’s 

current life insurance may not cover his entire child support obligation. Id. at *2. Unlike 

Layton, Mother and Father in the present case had an agreed permanent parenting plan 

which included a life insurance provision requiring both parents, not just the parent owing 

child support, to each maintain a life insurance policy of $300,000 on their respective lives 

for the benefit of the children until the child support obligation was completed.

In this case, we simply hold that the most recent permanent parenting plan, which 

the parties agreed on appeal was controlling in this case, does not limit the children’s life 

 

3 Ms. Hester stated in her response to the summary judgment motion that at the time of Father’s death, he 

only had a remaining child support obligation of $43,760.
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insurance proceeds to only the amount of Father’s outstanding child support obligation. If 

the parents intended for the life insurance policy to secure only the child support obligation

still owed at Father’s death, the parties could have easily stated that in the plan. By limiting 

the children’s proceeds from the life insurance policy, the Trial Court was reading into the 

provision what simply was not there. We must give effect to the literal meaning of the 

clear and unambiguous language of the life insurance provision of the parenting plan. The 

judgment is modified so that the children are entitled to $300,000 of the life insurance 

proceeds as required by the agreed permanent parenting plan.

We next address Mother’s issue concerning whether the Trial Court erred by 

declining to award Mother her attorney’s fees. Mother has two theories on which she 

claims she should have been awarded attorney’s fees: (1) that such an award of attorney’s 

fees was required by Mother and Father’s marital dissolution agreement and (2) that 

Tennessee Code Annotated § 36-5-103(c) entitled her to an award of attorney’s fees as the 

prevailing party on the motion for summary judgment. 

Concerning Mother’s argument that she is entitled to an award of attorney’s fees at 

the trial court based on the provision in Mother and Father’s marital dissolution agreement, 

we find Mother’s argument to be without merit. Mother and Father were the only parties 

to the marital dissolution agreement. Our Supreme Court has held that a contractual 

provision allowing the recovery of attorney’s fees resulting from litigation was enforceable 

during trial court proceedings as well as on appeal. Eberbach v. Eberbach, 535 S.W.3d 

467, 478 (Tenn. 2017). However, this case is distinguishable from Eberbach because 

Mother is trying to enforce a provision of her contract with Father against Ms. Hester. Ms. 

Hester, the respondent in this action, was not a party to the marital dissolution agreement. 

Therefore, Mother was not entitled to an award of attorney’s fees from Ms. Hester in the 

Trial Court based on a provision from Mother and Father’s marital dissolution agreement.

Mother further argues that she was entitled to an award of attorney’s fees in the Trial 

Court based on Tennessee Code Annotated § 36-5-103(c) (Supp. 2020), which provides as 

follows:

A prevailing party may recover reasonable attorney’s fees, which may be 

fixed and allowed in the court’s discretion, from the non-prevailing 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.

(Emphasis added.)
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An award of attorney’s fees pursuant to the above statute is discretionary, and we 

will not reverse a trial court’s decision concerning attorney’s fees except with an abuse of 

that discretion. See Tenn. Code Ann. § 36-5-103(c) (Supp. 2020). We will not substitute 

our judgment for that of the Trial Court, and we find no abuse of discretion in the Trial 

Court’s decision not to award attorney’s fees to Mother.

As her final issue, Mother has requested an award of attorney’s fees incurred on 

appeal. As previously stated, we have determined that Mother is not entitled to an award 

of attorney’s fees based on the marital dissolution agreement to which Ms. Hester was not 

a party. Furthermore, an award of attorney’s fees based on Tennessee Code Annotated § 

36-5-103(c) is at our discretion. See Eberbach, 535 S.W.3d at 477 (“[W]hen appellate 

attorney’s fees are requested pursuant to statutes . . . which expressly permit the court to 

exercise its discretion, the Court of Appeals should analyze any such request by exercising 

its discretion to determine whether an award to the prevailing party is appropriate.”). 

During this appeal, Mother raised issues concerning whether the Trial Court erred in the 

amount of life insurance proceeds awarded to the children and by declining to award 

Mother her attorney’s fees. In light of all relevant considerations, including that Ms. Hester 

was partially successful on appeal, we exercise our discretion and decline to award Mother 

her attorney’s fees incurred on appeal.

Conclusion

Based on the foregoing, we modify the Trial Court’s judgment and hold that the 

children are entitled to $300,000 of the life insurance proceeds. We affirm the Trial Court’s 

judgment declining to award Mother her attorney’s fees. We deny Mother’s request for 

attorney’s fees incurred during this appeal. This cause is remanded to the Trial Court for 

collection of costs assessed below. The costs on appeal are assessed one-half against the 

appellant, Kimberly Anne McGrath, and her surety, if any, and one-half against the 

appellee, Melissa Powers Hester.

s/ D. Michael Swiney 

D. MICHAEL SWINEY, CHIEF JUDGE