IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

March 24, 2004 Session

JOANN MALLINAK GLASSELL v. RICHARD LEE GLASSELL

Appeal from the Chancery Court for Knox County

No. 150397-3 Sharon Bell, Chancellor

FILED JUNE 10, 2004

No. E2003-01602-COA-R3-CV

Joann Mallinak Glassell (“Plaintiff”) was represented by attorney James M. Crain (“Crain”)

throughout divorce proceedings she filed against Richard Lee Glassell (“Defendant”). After a trial,

the Trial Court ordered the equity from the sale of the marital residence to be divided equally

between the parties. The Trial Court then applied various off-sets to the amount awarded Plaintiff,

thereby reducing the net amount of Plaintiff’s recovery to $0.00. The Trial Court concluded that

Crain’s attorney’s fee lien was lower in priority to the various off-sets. Crain appeals, claiming the

Trial Court improperly subordinated his attorney’s fee lien to the off-sets and that his lien should be

given priority. We modify the judgment of the Trial Court and affirm as modified. 

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

Court Affirmed as Modified; Case Remanded

D.MICHAEL SWINEY,J.,delivered the opinion of the court, in which HERSCHEL P.FRANKS,P.J.,E.S.,

and BEN H. CANTRELL, SP. J., joined.

Appellant James M. Crain, Attorney, Knoxville, Tennessee.

Kimberly R. Taylor, Knoxville, Tennessee, for the Appellee Richard Lee Glassell. 

OPINION

Background

This appeal involves the enforcement of an attorney’s fee lien. The appellant is

attorney James M. Crain, who represented Plaintiff in the underlying divorce litigation which began

on March 20, 2001, when Plaintiff filed a complaint seeking a divorce from Defendant on various

grounds. Crain represented Plaintiff when the complaint was filed and throughout the trial. 
This Court has not been provided a transcript from the divorce trial. However, none of the factual findings

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arising from the trial are directly at issue on appeal. We will discuss only those factual findings in the Final Judgment

that are relevant to showing how and why the Trial Court distributed Plaintiff’s equity in the marital residence in the

manner in which it did. Because we do not have a transcript, we conclusively presume the Trial Court’s factual

determinations arising from testimony presented at trial are correct. "This court cannot review the facts de novo without

an appellate record containing the facts, and therefore, we must assume that the record, had it been preserved, would have

contained sufficient evidence to support the trial court's factual findings." In re Adoption of D.P.M., 90 S.W.3d 263,

267 (Tenn. Ct. App. 2002) (quoting Sherrod v. Wix, 849 S.W.2d 780, 783 (Tenn. Ct. App.1992)). 

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Defendant answered the complaint and filed a counterclaim seeking a divorce from

Plaintiff on the same grounds as those alleged by Plaintiff. Both Plaintiff and Defendant sought to

be the primary residential parent of their two minor children, who are 10 and 11 years old.

In June of 2001, upon agreement of the parties, the Trial Court entered an order

appointing attorney Wayne Wykoff (“Wykoff”) as guardian ad litem on behalf of the two children.

The order instructed Wykoff to “make an appropriate investigation into the circumstances of the

parties and the best interest of his wards” and to submit a report to the Trial Court once the

investigation was completed. Plaintiff and Defendant also agreed to undergo psychological

evaluations by Elsbeth Freeman, PhD, and an agreed Order was entered by the Trial Court to that

effect. The parties agreed to split the costs of the psychological evaluations, “subject to reallocation

by the Court at the trial of this cause.” 

In February of 2002, Defendant obtained an Order of Protection after proving

allegations of domestic abuse. Defendant was awarded exclusive possession of the marital residence

and Plaintiff was ordered to vacate the premises. The Order further provided that counsel for

Defendant was to submit an affidavit of attorney’s fees incurred in obtaining the Order of Protection

and granted Defendant “reasonable attorney fees incurred in this cause.” 

The parties equity in the marital residence was $53,471.78. The marital residence was

sold prior to trial with the equity proceeds being held in trust while resolution of the various issues

were pending with the Trial Court. In October of 2002, the Trial Court permitted Plaintiff to

withdraw $2,000 from her share of the equity proceeds in order for her to make payments on a car

note and a line of credit, said payments totaling $528.31. The remaining $1,471.69 was paid to

Plaintiff directly.

The divorce trial and various motions took approximately six days, beginning in

August of 2002 and concluding in November of that same year. An extensive Final Judgment was

entered by the Trial Court on December 9, 2002, and amended on May 22, 2003. In the Final

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Judgment, as amended, the Trial Court concluded that the equity proceeds from the marital residence

should be divided equally with Plaintiff and Defendant each receiving an award of $26,735.89. The

Trial Court later stated that:
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The Court believes that the monies held in Trust constitutes (sic) a

common fund created by and for the marital estate and believes that

it can charge certain expenses on the estate. 

Because Plaintiff already had received $2,000 from her share of the equity proceeds, her total award

was reduced to $24,735.89. The Trial Court's order with regard to Plaintiff’s remaining $24,735.89

forms the basis of this appeal.

After the parties separated, Defendant was the primary residential parent of the two

minor children. One of the many issues at trial was the amount of Plaintiff’s child support arrearage.

The Trial Court found Plaintiff was gainfully employed from April through November of 2001,

earning $40,248 in gross wages. Plaintiff also received $548 in unemployment compensation for

the month of December, thereby resulting in total gross wages of $40,796 for 2001. From January

through August of 2002, Plaintiff received unemployment compensation averaging $1,237.50 per

month. Plaintiff paid no child support from April 2001 through August 2002. 

In December of 2001, Plaintiff began receiving $1,366 per month in Social Security

disability benefits. At that same time, each of the children began receiving monthly benefits of $321.

All of the Social Security payments were sent directly to Plaintiff, including the combined monthly

benefit of $642 for the children. Because Defendant was the primary residential parent, the Trial

Court concluded Plaintiff should have given the $642 in monthly payments to Defendant for the

children’s use and benefit. From December of 2001 through August of 2002, Plaintiff received a

total of $5,778 in benefits for the children, but gave Defendant only $1,600. Accordingly, the Trial

Court concluded that Plaintiff owed Defendant $4,178 for the Social Security benefits earmarked

for the children’s benefit which Plaintiff retained for her own use. The Trial Court also found that

Plaintiff owed Defendant reimbursement for health and dental insurance on the children and for onehalf of the children’s unpaid medical bills. All in all, the Trial Court concluded Plaintiff was in

arrears a total of $19,584.69 for child support, social security payments improperly retained,

reimbursement for health insurance, and one-half of the outstanding medical bills. 

As previously noted, Defendant was awarded attorney’s fees when he obtained the

Order of Protection. The amount of attorney’s fees Defendant was awarded was $1,533.44. In

addition, Plaintiff apparently was late to court on several occasions and failed to cooperate in the

discovery process to such an extent that sanctions were imposed. For example, Plaintiff failed to

appear for depositions which resulted in Defendant’s incurring additional attorney’s fees. The

amount of sanctions imposed by the Trial Court was $5,372.50. Thus, the combined amount

Plaintiff owed Defendant for attorney fees resulting from the Order of Protection and discovery

sanctions totaled $6,905.94. The Trial Court concluded these expenses should be paid to Defendant

out of the remaining $24,735.89 from Plaintiff’s share in the equity proceeds from the sale of the

marital residence, thereby reducing Plaintiff’s award to $17,829.95. 

Although Plaintiff agreed to the appointment of Wykoff as guardian ad litem and to

undergo a psychological examination with Dr. Elsbeth Freeman, Defendant paid most of the up-front
 The Knox County Juvenile Court exercised jurisdiction over custody of the children. Guardian ad litem fees

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were incurred in that proceeding as well. The $9,728.85 total reflects the guardian ad litem fees owed by Plaintiff from

both proceedings.

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costs associated with these agreed upon events. In addition to paying his portion of these expenses,

Defendant paid, on Plaintiff’s behalf, a total of $2,002.50 toward the fee of the guardian ad litem and

$1,950 toward the fee of Dr. Freeman. The outstanding balance Plaintiff owed Defendant based on

his payment on her behalf of these agreed upon expenses was $3,952.50. The Trial Court deducted

this amount from the $17,829.95 remaining in Plaintiff’s share of the equity proceeds, leaving her

a balance of $13,877.45. 

Next, the Trial Court determined that Plaintiff’s remaining $13,877.45 should be

applied toward the $19,584.69 in child support arrearage, thereby lowering that arrearage to

$5,707.24 and reducing Plaintiff’s remaining share in the equity proceeds to $0.00. The Trial Court

then stated:

Each party’s portion of the court costs as provided hereinafter in

Paragraph 34 shall come out of that party’s share of the monies held

in Trust to the extent monies remain, and the court costs shall include

the Guardian ad Litem fees as already provided herein with the

clerk’s costs having priority over the Guardian ad Litem’s fees taxed

as costs in the event of a shortfall. To the extent insufficient funds

remain to cover that party’s share of such court costs, that party shall

still be responsible for the remainder owing. The amount owing to

the Guardian ad Litem from ... [Plaintiff is] $9,728.85 .... The 2

attorney’s lien each attorney has against their respective clients comes

last in the Order of priority. 

After entry of the Final Judgment, Crain withdrew as Plaintiff’s counsel, entered a

special appearance, and filed a motion to amend the Final Judgment. In this motion, Crain asserted

that he had a lien on all money or other assets awarded to his former client pursuant to Tenn. Code

Ann. § 23-2-102. Crain claimed that because of this lien, he had a property right in Plaintiff’s assets

and the Trial Court lacked authority to adjudicate those rights in the manner in which it did.

According to Crain, Plaintiff’s financial obligations could be paid from her share of the equity “if,

and only to the extent that, said sums exceed her liability to Attorney for his fees and expenses.”

Crain’s lien claim is based solely on Tenn. Code Ann. § 23-2-102. No written agreement granting

a lien on any of Plaintiff’s property was entered into between Plaintiff and Crain. The Trial Court

essentially denied Crain’s motion, stating as follows:

[The paragraphs in the Final Judgment regarding attorney

liens] ... pertain to attorney liens and priority of payments from the

Trust Account and how the attorney liens fall within the priority of

payment, [and] this Court Alters or Amends the Judgment to clarify
 Tenn. Code Ann. § 23-2-102 creates a statutory attorney’s lien for attorneys who begin a lawsuit. Tenn. Code 3

Ann. § 23-2-103 creates a statutory lien for an attorney who is hired after suit has already been brought. In Schmitt the

Court observed that “the analysis under both of the statutes is the same.” 113 S.W.3d at 351-52.

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this Court’s ruling and finds that each attorney has a lien as to any

money going into their respective client’s possession. This Court

finds that with respect to the funds which have been held in Trust, we

are talking about other monies of the marital estate. This Court finds

that James M. Crain was not a party and the issue of enforcement of

his lien was not before this Court. Rather, this Court finds that what

was before this Court was the issue of prioritizing payments/payment

of claims to be made from the marital estate, specifically funds held

in Trust. This Court finds that as to the priority of claims against the

marital estate, the attorney’s lien that each party has against their

respective clients comes last in the Order of priority.

Crain appeals the denial of his motion to alter or amend the Final Judgment. Crain’s

issue on appeal is whether the Trial Court erred “in directing that monies awarded to Plaintiff in this

action be devoted to payment of Plaintiff’s obligations, free and clear of the lien of her attorney.”

Discussion

As explained in footnote one of this Opinion, the relevant facts are not in dispute on

appeal. With respect to legal issues, our review is conducted “under a pure de novo standard of

review, according no deference to the conclusions of law made by the lower courts.” Southern

Constructors, Inc. v. Loudon County Bd. Of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).

First, we will address the Trial Court’s conclusion that Crain “was not a party and the

issue of enforcement of his lien was not before this Court.” The Trial Court rendered this opinion

on May 22, 2003, entered nunc pro tunc to March 7, 2003. Several months later, on October 30,

2003, our Supreme Court issued its decision in Schmitt v. Smith, 118 S.W.3d 348 (Tenn. 2003). In

that case, Mrs. Schmitt obtained counsel and thereafter a complaint for divorce was filed on her

behalf. Mrs. Schmitt subsequently retained new counsel. Mrs. Schmitt and her new attorney

executed an employment agreement that granted her attorney a “lien as to all property, both real and

personal, including money, assets, alimony or things of value, which were recovered, obtained,

preserved or protected for Schmitt in this lawsuit or any lawsuit or claim.” 118 S.W.3d at 350. The

final decree ordered the parties to sell the marital residence and to pay their own attorney fees. After

the marital residence was sold, Schmitt’s attorney filed a petition to enforce the lien. Id. One of 3

the issues to be decided was whether the trial court had jurisdiction to enforce the lien or whether

the attorney was required to file a separate lawsuit in order to have the lien enforced. In resolving

this issue, the Court stated:
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The lien in this case is a charging lien attached to the proceeds

generated from the sale of the parties' marital home. "While a

charging lien serves to secure an attorney's fees, it does not function

as an adjudication of the rights between the lawyer and his or her

client." Starks, 20 S.W.3d at 652 (citing Pierce v. Lawrence, 84

Tenn. 572, 1 S.W. 204, 205-06 (1886)). Thus, "[a] trial court may

declare the existence of an attorney's lien in the suit out of which the

dispute regarding the attorney's fee arose, but ordinarily an attorney,

not being a party to the proceeding, may not obtain a judgment with

respect to his or her fee in that action." Id. (citing State v. Edgefield

& Kentucky R.R., 63 Tenn. 92, 97 (1874); Perkins v. Perkins, 56

Tenn. (9 Heisk.) 95, 97-98 (1871)).

Although an attorney must generally commence a separate

proceeding to enforce his or her contractual right to a fee, an

exception has been carved out in which the trial court may exert

jurisdiction where the money or property that is the subject of the lien

"comes within the control of the court in the case in which the

services were rendered." Id. at 653.... 

We have here a divorce action in which the trial court

adjudicated the distribution of the marital property owned by Schmitt

and Smith. The residence that was the subject of McCrary's lien was

included in the marital property ultimately divided by the trial court.

As such, the property upon which the lien was to be enforced, the

house, was within the control of the trial court.... Therefore, we hold

that the trial court properly adjudicated the attorney's lien in this case.

* * * * 

Finally, we note that it is in the interest of judicial economy

to allow the same court to hear all matters regarding the property in

question. Forcing the parties to proceed in a separate action with a

judge unfamiliar with the underlying facts of the divorce action would

cause both parties to incur additional attorney's fees, costs, and

litigation expenses. Therefore, we hold that the trial court in this case

had jurisdiction to adjudicate McCrary's attorney's lien.

Schmitt, 118 S.W.3d at 353-55 (footnote omitted).

When Crain’s motion to alter or amend the final judgment was decided, the Trial

Court did not have the benefit of the Schmitt opinion. Applying the holding of Schmitt, we conclude
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that the Trial Court had jurisdiction to adjudicate issues surrounding the enforcement of Crain’s

attorney’s fee lien and, in fact, did so.

The primary issue on appeal is whether the Trial Court erred when it subordinated

Crain’s lien to Plaintiff’s financial obligations in the manner set forth above, thereby directing all

of Plaintiff’s share of the equity proceeds to be used in partial satisfaction of these obligations and,

for all intents and purposes, leaving Plaintiff without any assets to satisfy Crain’s lien. 

Defendant argues the Trial Court correctly prioritized Crain’s lien in light of the

decision of our Supreme Court in Roberts v. Mitchell, 94 Tenn. 277, 29 S.W. 5 (1895). In that case,

Mitchell was awarded a monetary judgment against Roberts. In a separate and independent lawsuit,

Roberts was awarded a monetary judgment against Mitchell. Roberts then filed a motion to have

the judgments off-set against each other. Mitchell’s attorneys opposed the motion unless it was

granted subject to their lien for attorney’s fees. The issue on appeal was whether the judgments

should be off-set against each other subject to the lien for attorney’s fees. Id. at 277-78, 29 S.W. at

5. 

The relevant statutory provision as it existed at that time was Tenn. Code Ann. § 25-

105 which provided that “[j]udgments of the same court may be set off against each other on

motion.” After discussing how other jurisdictions have resolved this particular issue, our Supreme

Court adopted the following rule: 

We think the better and more equitable rule is one that

subordinates the right of set-off of independent judgments rendered

in different suits, growing out of different causes of action, to the

attorney’s lien or claim for services rendered in the particular suit;

and we do not hesitate to adopt it as the rule of practice in this State.

On this subject, and in elaboration of our views, we quote the

language of Chancellor Walworth in Dunkins v. Vandenburgh, 1

Paige Ch. 624:

"The question in all these cases is, What is

equitable and just between the parties and the attorney

or solicitor? Where different claims arise in the

course of the same suit, or in relation to the same

matter, it is undoubtedly equitable and just that these

equities should be arranged between the parties

without reference to the solicitor or attorney's lien.

His lien is only on the clear balance due to his client

after all these equities are settled. But where other

claims, arising out of different transactions, and which

could not have been legal or equitable set-off in that

suit, exist between the parties, the Court ought not to
 The relevant statute was amended in 1932 to expressly include the provision regarding attorney’s fee liens

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which the Roberts Court held was implied. With this amendment, the statute provided that “[j]udgments of the same

court may be set off against each other on motion, but not so as to defeat liens of attorneys or to circumvent the

exemption laws.” The statute has remained unchanged since the 1932 amendment and is now codified at Tenn. Code

Ann. § 25-1-103. 

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divest the lien of the attorney or solicitor which has

alreadyattached on the amount recovered for the costs

of that particular litigation. When the solicitor has

been at the labor and expense of prosecuting a suit, it

is equitable and just that his costs should be paid out

of that litigation." 

Nor is ... the Code to be construed so as to militate against

this view. By that section it is provided that "judgments of the same

Court may be set off against each other on motion." But we hold that

this section must be read as if it contained the implied condition that

this set-off will not be allowed in derogation of the attorney's lien for

his services in prosecuting the suit and obtaining the particular

judgment. We think this construction gives full force to this

provision of the Code, and, at the same time, it preserves the equities

of the parties interested.... In the case at bar an order will be entered

allowing the set-off, but subject to the lien of the solicitors, which

will be declared by a proper order. 

Roberts, 94 Tenn. at 279-81, 29 S.W. at 5, 6.4

This Court had occasion to discuss the Roberts opinion in Babcock v. Jones, No. 73,

1987 Tenn. App. LEXIS 3070 (Tenn. Ct. App. Nov. 13, 1987). Babcock involved a landlord-tenant

lawsuit wherein the trial court entered off-setting judgments. The defendant’s attorney filed a motion

for a new trial because no provision was made for his attorney’s fee lien. Babcock, 1987 Tenn. App.

LEXIS 3070, at * 1. The trial court overruled the motion and this Court affirmed that decision

relying on the rule adopted in Roberts. We noted that Tenn. Code Ann. § 25-1-103 had no

application to judgments rendered on claims which arose from the same transaction and which were

ordered off-set. Id. at * 3. We noted that while Roberts was decided before the statute was amended

to add the phrase “but not so as to defeat liens of attorneys...”, its rationale applied with continuing

force because theRobertsCourt “implicated a condition ... almost identical to the amendment which

was added thirty seven years later.” Id. 

Applying the foregoing to the present case, we must determine whether the claims

which were off-set by the Trial Court arose “in the course of the same suit, or in relation to the same

matter” such that it would be “undoubtedly equitable and just that these equities should be arranged

between the parties, without reference to the solicitor or attorney's lien.” Roberts, 94 Tenn. at 280,

29 S.W. at 5. In so doing we must keep in mind that the “matter” at issue before the Trial Court
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when it rendered its Final Judgment was the dissolution of the sixteen year marriage between the

parties. 

The first off-set by the Trial Court was for $1,533.44 in attorney’s fees incurred by

Defendant in successfully obtaining an Order of Protection which was issued based on Plaintiff’s

domestic abuse. The Petition for an Order of Protection was filed originally in the Fourth Circuit

Court for Knox County on March 20, 2001, and an Ex Parte Order of Protection was issued by that

Court the same day. March 20, 2001, also is when Plaintiff filed the complaint for divorce in the

Trial Court. The order of protection was transferred to the Trial Court pursuant to Tenn. Code Ann.

§ 36-3-603 which provides as follows:

36-3-603. Duration of protection order – Petition for protection

order in divorce action. – (a) If an order of protection is ordered by

a court and either the petitioner or respondent files a complaint for

divorce, the order of protection shall remain in effect until the court

in which the divorce action lies modifies or dissolves the order.

(b) Nothing in this section shall prohibit a petitioner from

requesting relief under this section in a divorce action.

In February of 2002, the Trial Court apparently reaffirmed the previous order after

concluding that Defendant had proven domestic abuse by Plaintiff. In this new Order of Protection,

Defendant was awarded attorney’s fees. We believe the award of attorney’s fees in the amount of

$1,533.44 arose out of the same suit and is in relation to the same matter at issue before the Trial

Court and, therefore, was properly off-set against Plaintiff’s share of the equity proceeds from the

sale of the marital residence. This rationale also holds true for the $5,372.50 in sanctions imposed

against Plaintiff during the divorce litigation. Clearly, these sanctions arose out of and were part of

the same suit wherein Plaintiff was awarded, at least initially, a judgment of $24,735.89. 

Plaintiff affirmatively agreed to the appointment of Wykoff as guardian ad litem and

to undergo a psychological examination by Dr. Elsbeth Freeman. Plaintiff’s agreement was

memorialized in the divorce action via entry of agreed orders by the Trial Court. Defendant

advanced Plaintiff $3,952.50 towards these agreed upon expenses. It would defy reason to hold

these expenses did not arise out of the same suit or were not in relation to the same matter at issue

before the Trial Court. Accordingly, we conclude the Trial Court properly entered a judgment for

Defendant for this amount and properly off-set that amount against Plaintiff’s judgment for her share

of the equity proceeds from the marital residence.

The final amount which was off-set from Plaintiff’s $24,735.89 judgment was a

portion of the child support arrearage. As noted above, the total arrearage was $19,584.69, which

represented unpaid child support, social security funds improperly retained, unpaid medical

expenses, etc. Unpaid child support is often at issue in divorce litigation when the parties have been

living in separate residences, and was so at issue in this lawsuit. Again, we would be hard-pressed
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to come up with a rationale for holding that these expenses did not arise out of the same lawsuit or

were not related to the same matter at issue before the Trial Court. We instead hold that these

expenses did arise out of this same suit and were related to the matter then at issue before the Trial

Court and, therefore, were properly off-set against Plaintiff’s share of the equity proceeds.

After applying the rule announced by our Supreme Court in Roberts and reaffirmed

by this Court in Babcock, we conclude the Trial Court did not commit reversible error when it

reduced Plaintiff’s entire $24,735.89 judgment by the various off-sets awarded Defendant by giving

those off-sets priority over Crain’s attorney’s fee lien. Crain’s “lien is only on the clear balance due

to his client after all these equities are settled.” Here “the clear balance due” Plaintiff after the

“equities are settled” is zero.

However, we note that all of the issues surrounding custody of the children were

resolved by the Knox County Juvenile Court, which involved an independent proceeding and matters

not directly at issue before the Trial Court herein. We, therefore, modify the Trial Court’s Final

Judgment to give Crain’s lien for attorney’s fees priority over any costs associated with the Juvenile

Court litigation including, but not limited to, the guardian ad litem fees incurred in that proceeding.

We acknowledge that our modification of the Trial Court’s judgment will be of little comfort to

Crain as the $24,735.89 which Crain claims is subject to his attorney lien is reduced to zero even

with this modification of the Trial Court’s judgment.

The Final Judgment of the Trial Court is affirmed as modified. In so doing, we

emphasize that Plaintiff does not challenge the adequacy of the legal representation she received

from Crain and our Judgment should in no way be read to suggest that Plaintiff is not indebted to

Crain for the legal fees and expenses resulting from Crain’s representing Plaintiff. In light of our

holding, we pretermit Defendant’s issue of whether the $24,735.89 actually represented a “recovery”

of assets subject to an attorney’s fee lien. We also pretermit the issue of whether the Trial Court

properly considered the equity from the marital residence to be a “common fund” from which it

could order payment of marital debts prior to enforcing an attorney’s fee liens. 

Conclusion

The judgment of the Trial Court is affirmed as modified and this cause is remanded

to the Trial Court for further proceedings consistent with this Opinion and for collection of the costs

below. Costs on appeal are assessed against the Appellant James M. Crain and his surety.

___________________________________

D. MICHAEL SWINEY, JUDGE