1Rule 10 (Court of Appeals). Memorandum Opinion. -- (b) The Court, with the

concurrence of all judges participating in the case, may affirm, reverse or modify the actions

of the trial court by memorandum opinion when a formal opinion would have no precedential

value. When a case is decided by memorandum opinion it shall be designated

"MEMORANDUM OPINION," shall not be published, and shall not be cited or relied on for

any reason in a subsequent unrelated case. 

FILED

June 28, 1996

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

WESTERN SECTION AT NASHVILLE

 ________________________________________________

GWENDOLYN G. THOMPSON FROM THE CIRCUIT COURT

(BROWNING), OF DAVIDSON COUNTY

No. 89D-2225

Plaintiff-Appellant,

THE HONORABLE PHILIP E. 

Vs. SMITH, SPECIAL JUDGE 

DONALD LOUISE THOMPSON, C.A. No. 01A01-9510-CV-00460

AFFIRMED AND REMANDED

Defendant-Appellee.

Robert W. Rutherford, Carol L. Sue McKnight Evans of Nashville,

Soloman of Nashville, For Appellant For Appellee

___________________________________________________________________________

MEMORANDUM OPINION1

___________________________________________________________________________

CRAWFORD, J.

Petitioner-appellant, Gwendolyn G. Thompson (Browning) (Wife), appeals from the

order of the trial court awarding respondent-appellee, Donald Lewis Thompson (Husband),

attorney fees in the amount of $500.00.

The parties were divorced by decree entered June 18, 1990. The decree provided, inter

alia, that Husband would pay certain alimony and satisfy other obligations. On February 25,

1994, Wife filed a “Petition for Contempt and Increase in Alimony.” Husband’s answer joined

issue on the material allegations of the petition and prayed for reasonable attorney fees. An

evidentiary hearing was set for February 23, 1995, and at the conclusion of Wife’s proof, she

announced that she was taking a voluntary nonsuit. An order was entered on March 3, 1995,

which states:

It appears to the court that the plaintiff, through counsel, noticed

in open court the voluntary dismissal of this action pursuant to

Rule 41.01 of the Rules of Civil Procedure, and it is

THEREFORE ORDERED, ADJUDGED AND DECREED that

this cause be, and the same hereby is, dismissed.

The costs of this cause shall be taxed against the plaintiff, for

which execution shall issue if necessary.

On March 31, 1995, Husband filed a motion for attorney fees, and Wife did not file a

response to this motion. On August 3, 1995, an order was entered awarding the $500.00 fee, and
2

this appeal ensued.

Wife’s issue for review, as stated in her brief, is:

Whether a motion for attorney’s fees is timely when filed more

than thirty (30) days after notice of voluntary dismissal, pursuant

to Tennessee Rules of Civil Procedure 41.01.

Wife asserts that the effective date of the voluntary dismissal was February 23, 1995, the

date she announced the voluntary dismissal during the evidentary hearing. Wife argues that the

dismissal on February 23, 1995, was final, and therefore, the motion filed March 31, 1995, was

untimely because it was filed more than thirty (30) days after the entry of a final order. We need

not address Wife’s argument because we perceive that Wife has overlooked the fact that

Husband in his answer to Wife’s petition sought affirmative relief by a prayer for an award of

attorney fees. Wife’s voluntary dismissal did not operate to dismiss Husband’s prayer for relief,

and, thus, the voluntary nonsuit was not a final order from which an appeal would lie.

The order of the trial court is affirmed, and this case is remanded for such further

proceedings as may be necessary. Costs of appeal are assessed against the appellant.

_________________________________

W. FRANK CRAWFORD,

PRESIDING JUDGE, W.S.

CONCUR:

_________________________________

ALAN E. HIGHERS, JUDGE

_________________________________

HOLLY KIRBY LILLARD, JUDGE