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

concurrence of all judges participating in the ca se, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a formal opinion would have no prec edential value. When a case is decided by memora ndum opinion it shall be designated "MEMORANDUM OPINION," shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case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 Ap pellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT NASHVILLE

________________________________________________ GWENDOLYN

G. THOMPSON FROM THE CI RCUIT COUR

T (BROWNIN G) , OF DAVIDSON COUNTY No. 89D-2225 Plaintiff -Appella nt, THE HONORABLE PHILIP E. Vs. SMITH, SPECIAL JUDGE DONALD LOUISE THOMPSON, C.A. No. 01A01-9510-CV-00460 AFFIRMED AND R

EMANDED Defendant-Appellee. Robert W. Rutherford, Carol L. Sue McKnight Evans of Nashville, Soloman of Nashville, For Appellant For Appellee

___________________________________________________________________________ MEMORANDUM OPINION 1

___________________________________________________________________________ CRAWFORD, J. Pe titioner- appella

nt, Gwendolyn G. Thomps on (Brown ing) (Wif e), appe als from t

h e 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 decreeprovided, 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 is sue on the material allegations of the petition and prayed for rea sonable attorney fees. An evidentiary hearing

was set f or Februa ry 23, 199 5, and at t

he conc lusio n of W ife’s proof, she announced

that she was taking a volunt ary nonsu it . An order was entered on March 3, 1995, which sta tes: It appears to the court that the plaintiff, through counsel, noticed in open court the voluntary dismissal of this action pursuan t to Rule 41.01 of the Rule s of Civil Pr ocedure , 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 plai ntiff, for which execution shall issue if necessary. On March 31, 1995, Husband filed a motion for attorney fees, a nd Wife did not file a response to this motion. On August 3, 1995, an order was entered awa rding the $500.00 fee, and2

this appeal ensued. Wife’s i ssue for

review, as stated

in her br ief, is: Whether a motion for attorn ey’s fe es 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 t

hat the effectiv e 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 orde r. We need notaddress Wife’s argument because we perceive that Wife has over looke d the fac t that Husbandin his answer to Wife’s petition sought affirmative relief by a prayer for an award of attorney fees. W

ife’s vo luntary d

ismissal did

not opera te to dismiss Husband’s prayer for relief, and, thus, the voluntary nonsuit was not a final order from which an appea l would lie. The order of the trial court is affirmed, and this case is re manded for

suc h further procee dings as ma

y be nec essary. Costs of ap peal ar e assess ed again st the app ellant.

_________________________________ W. FRANK CRAWFORD, PRESIDING J

UDGE, W.S. CONCUR:

_________________________________ ALAN E. HIGH

ERS, JUDGE

_________________________________ HOLLY KIRBY L ILLARD, JU DGE