Vanessa Colley v. John S. Colley. III (Concurring in part)

A court-approved marital dissolution agreement awarded Vanessa Turner alimony. Her former husband, John Colley, later sought to modify the alimony award but voluntarily dismissed that post-judgment action without prejudice before it was adjudicated. The question here is whether Ms. Turner is the “prevailing party” in the post-judgment proceeding and therefore entitled to attorney’s fees under the parties’ marital dissolution agreement and Tennessee Code Annotated section 36-5-103(c). The majority opinion concludes that she is. I agree with that bottom line but not with the entirety of the majority’s legal analysis. The majority reasons that Ms. Turner prevailed in the post-judgment proceeding because her objective was to maintain the status quo, and she achieved that objective when her former husband voluntarily dismissed his petition. In my view, a voluntary dismissal without prejudice—standing alone—could not make Ms. Turner a prevailing party. Although Ms. Turner may have “prevailed” in the colloquial sense of that term when the petition was voluntary dismissed, she was a “prevailing party” as that legal term of art has long been understood only because the voluntary dismissal meant that she had succeeded in defending earlier court-awarded relief. To the extent the majority opinion holds that a defendant can be a prevailing party in the absence of any judicially sanctioned change in the parties’ legal relationship or judicial rejection of the plaintiff’s claims, I disagree. I write separately to explain my position.