Marriage of O'Neal, In re

• Decision Date: 17 February 1999
• Docket Number: DO-0049-AB
• Citation: 974 P.2d 785,158 Or.App. 431
• Parties: In the Matter of the MARRIAGE OF Tatiana K. O'NEAL, Appellant, and Leonard Dean O'Neal, Respondent. 96; CA A96400.
• Court: Oregon Court of Appeals

Page 785

974 P.2d 785

158 Or.App. 431

In the Matter of the MARRIAGE OF Tatiana K. O'NEAL, Appellant,

and

Leonard Dean O'Neal, Respondent.

96DO-0049-AB; CA A96400.

Court of Appeals of Oregon.

Argued and Submitted Oct. 7, 1998.

Decided Feb. 17, 1999.

Russell Lipetzky, Salem, argued the cause and filed the brief for appellant.

Greg O'Neill argued the cause and filed the brief for respondent.

Before De MUNIZ, Presiding Judge, and HASELTON and LINDER, Judges.

De MUNIZ, P.J.

Wife appeals from a dissolution of marriage judgment, assigning error to the amount and duration of the spousal support award, to the trial court's failure to award her any of the increase in value of husband's assets that occurred during the marriage, and to both the amount of the attorney fees and the court's failure to follow the procedure of ORCP 68 in setting that amount. On de novo review, we affirm the court's award of spousal support and its property division. We write only to address the attorney fee issue.

Wife argues that the trial court erred in failing to follow the procedure of ORCP 68 in making an attorney fee determination. At trial, wife's counsel requested that attorney fees be established under ORCP 68. In its memorandum opinion, the court awarded wife $2,500 for attorney fees, stating:

"It is appropriate for [husband] to pay a portion of [wife's] attorney fees because of the disparity in income between the parties and [husband's] failure to voluntarily provide even minimal support or financial assistance for [wife] during the pendency of these proceedings. [Wife] is awarded a judgment against [husband] for $2,500."

Wife filed a motion for reconsideration, requesting that she be allowed to submit an ORCP 68 affidavit in support of her request for attorney fees. The trial court denied the motion, stating:

"Prior to issuing the Memorandum Opinion, I considered all of the issues raised in [wife's] Motion for Reconsideration, and was fully cognizant of the facts pointed out by counsel. It was not my intent that [husband] be required to pay more than $2,500 of [wife's] attorney fees."

Final judgment was entered one month later, and this appeal followed.

Although we review an award or denial of attorney fees for abuse of discretion, ORS 20.075(3), whether the trial court erred in failing to follow the procedure of ORCP 68 is a question of law. Under Haguewood and Haguewood, 292 Or. 197, 213, 638 P.2d 1135 (1981), the award of attorney fees in a dissolution proceeding is considered to be a component of the overall decree, taking into account the financial resources of the parties, the property division, and the support orders, if any. It is apparent from the trial court's initial memorandum that it correctly considered these factors in making its attorney fee award. To the extent that the trial court intended to award fees as a component of the overall judgment, it did not err. However, the trial court did err in refusing to follow the procedure of ORCP 68 by refusing to allow wife to submit an ORCP 68 affidavit before entering the final judgment.

ORCP 68 C(1) states:

"Notwithstanding Rule 1 A and the procedure provided in any rule or statute permitting recovery of attorney fees in a particular case, this section governs the pleading, proof, and award of attorney fees in all cases, regardless of the source of the right to recovery of such fees[.]"

Section C(4) states that the procedure for seeking attorney fees or costs and disbursements "shall be as follows": a party seeking fees "shall" file an affidavit with the court, serve it on the opposing party, and, if there are objections, a hearing "shall" be held and the parties "shall be given a reasonable opportunity to present evidence and affidavits relevant to any factual issue." ORCP 68 C(4).

In Pointe West Apts. v. Anderson, 145 Or.App. 596, 931 P.2d 100 (1997), the defendants prevailed at trial and were awarded $120 in attorney fees but were not allowed to submit a cost bill or attorney fee statement under ORCP 68. We reversed and remanded, stating:

"Defendants are entitled, as a matter of law, to follow the procedure set forth in ORCP 68 C(4) and to file with the court a detailed statement setting forth the amount they claim for their attorney fees. The trial court is not bound to award what is claimed, but it may not deny them the right to make the claim and to have the court rule on it." Id. at 597, 931 P.2d 100 (citations omitted).

Here, too, wife is entitled, as a matter of law, to file her affidavit in accordance with the procedure outlined in ORCP 68 C(4). See also Stringer v. Brandt, 128 Or.App. 502, 510, 877 P.2d 100, rev. allowed and withdrawn 320 Or. 109, 881 P.2d 141 (1994) (trial court erred in awarding attorney fees to mother without following the requirements of ORCP 68).

Husband argues that wife had "the benefit of the substantial equivalent of an ORCP 68 C procedure." He points out that wife's motion for reconsideration was supported by an affidavit of wife's attorney listing her fees and costs. In denying that motion, the trial court made it clear that it had already considered everything contained in the memorandum and that it intended husband to pay only $2,500 of wife's total fees. Husband claims, based on the trial court's statements, that requesting an affidavit and conducting an ORCP 68 hearing...