Briscoe v. Briscoe

• Decision Date: 29 November 2018
• Docket Number: Case No. 116,515
• Citation: 438 P.3d 824
• Parties: In the Marriage of: Michelle J. BRISCOE, Petitioner/Appellee, v. Michael R. BRISCOE, Respondent/Appellant.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

438 P.3d 824

In the Marriage of: Michelle J. BRISCOE, Petitioner/Appellee,

v.Michael R. BRISCOE, Respondent/Appellant.

Case No. 116,515

Court of Civil Appeals of Oklahoma, Division No. 4.

FILED NOVEMBER 29, 2018

Mandate Issued: January 30, 2019

Rachel Bussett, Ashley Weyland, BUSSETT LEGAL GROUP, PLLC, Oklahoma City, Oklahoma, for Respondent/Appellant

Edward Goldman, GOLDMAN LAW, PLLC, Oklahoma City, Oklahoma, for Petitioner/Appellee

OPINION BY DEBORAH B. BARNES, PRESIDING JUDGE:

¶1 This appeal arises from the parties' post-divorce proceedings. Michael R. Briscoe (Father) appeals from the trial court's order awarding attorney fees to Michelle J. Briscoe (Mother). Prior to awarding attorney fees to Mother, the trial court, in August 2017, entered an order sustaining the motion of Mother to require Father "to Pay his Share of Health Insurance Premium." In particular, the trial court ordered Father to pay Mother "$136.50 per month as his share of the children's health insurance premium commencing August 1, 2017...." Mother then filed an application for attorney fees and costs expended in relation to this health insurance issue. Following a hearing on Mother's application for attorney fees, the trial court entered an order in October 2017 awarding Mother $2,282.50 in attorney fees.¹ This award is equivalent to the total amount of fees sought by Mother for 8.3 hours billed at $275 per hour.

¶2 Based on our review, we affirm.

STANDARD OF REVIEW

¶3 The fundamental question raised on appeal concerns the proper construction of the attorney fee statute at issue— 43 O.S. 2011 § 110(D) & (E). Questions of statutory construction "are questions of law that we review de novo and over which we exercise plenary, independent, and non-deferential authority. The primary goal of statutory construction is to ascertain and follow the intent of the Legislature." Welch v. Crow , 2009 OK 20, ¶ 10, 206 P.3d 599 (footnotes omitted).

ANALYSIS

¶4 On appeal, Father argues the trial court misapplied § 110(D) & (E) by, among other things, failing to "weigh the judicial equities." To the extent Father is arguing the trial court altogether failed to undertake a judicial balancing of the equities,² there is no indication in the record that the trial court failed in this regard, and error is not presumed on appeal.³ In fact, the record demonstrates that a judicial balancing of the equities properly occurred. As set forth in Mother's application for attorney fees, Mother expressly sought fees

pursuant to Title 43 O.S. [§ 110(D) & (E) ] and Kerby v. Kerby , 164 P.3d 1053..., wherein it states that attorney fees may be awarded to the party "who qualifies for the benefit through the process of a judicial balancing of the equities."

Moreover, at the attorney fee hearing, it was counsel for Father, not Mother, who objected to the presentation of argument and evidence relevant to the Finger factors.⁴ For example, Mother's counsel stated at the hearing that Father's "joint tax return showed $61,366 as wages" for the previous year, and counsel for Father objected on the basis that Father's wages have no bearing on the attorney fee request. Counsel for Mother responded by stating, "It has to do with ability to pay and the balancing of the equities," and the trial court overruled Father's objection.

¶5 Although Father asserts on appeal that "[Mother] never cited these factors and/or argued these factors" and, therefore, "the Court did not have any way to balance the equities and award attorney fees," a review of the record reveals that Mother cited appropriate authority and presented argument and evidence directly relevant to a judicial balancing of the equities. Therefore, to the extent Father is arguing the trial court altogether failed to undertake a judicial balancing of the equities, we find Father's argument to be without merit.

¶6 Father also argues the trial court's determination is not "in accordance with Finger and Burk ."⁵ Indeed, Father spends a great deal of time in his appellate brief discussing the interplay and significance of Finger and Burk , and he asserts the trial court erred in failing to apply all of the "almost 15-18 factors between the two cases." Father asserts, "The Burk factors are one of the most important piece[s] of law in assessing an attorney fee request and [Mother] failed to address this standard in any pleading or hearing." However, a review of the Oklahoma Supreme Court decisions addressing challenges to § 110 attorney fee awards over the past two decades reveals that the Burk factors play a somewhat different role in such cases than they play in the context of determining an appropriate fee award under mandatory prevailing party fee statutes.⁶ The distinctive analysis applied in these cases stems from the distinctive statutory language at issue. As indicated, the applicable statutory provisions in the present case are found in 43 O.S. 2011 § 110, and read as follows:

D. Upon granting a decree of dissolution of marriage, annulment of a marriage, or legal separation, the court may require either party to pay such reasonable expenses of the other as may be just and proper under the circumstances.

E. The court may in its discretion make additional orders relative to the expenses of any such subsequent actions, including but not limited to writs of habeas corpus, brought by the parties or their attorneys, for the enforcement or modification of any interlocutory or final orders in the dissolution of marriage action made for the benefit of either party or their respective attorneys.

¶7 By way of contrast, 43 O.S. 2011 § 111.1(C)(3), for example, provides as follows:

Unless good cause is shown for the noncompliance, the prevailing party shall be entitled to recover court costs and attorney fees expended in enforcing the order and any other reasonable costs and expenses incurred in connection with the denied child support or denied visitation as authorized by the court.

¶8 The attorney fees in this case were awarded under § 110(D) & (E), not under a mandatory prevailing party fee statute like § 111.1(C)(3). Under such circumstances, a "judicial balancing of the equities" has consistently controlled both the initial determination as to whether one party is entitled to attorney fees under § 110, and the ultimate determination of what is "just and proper under the circumstances." In our view, the Burk factors persist under § 110, but only in a circumscribed intermediate role between these two determinations; that is, the factors set forth in Burk become relevant and should be applied in the context of a § 110 attorney fee request when a party specifically challenges the reasonableness of the total fee sought by the party entitled to fees.⁷ See Smith v. Smith , 2013 OK CIV APP 54, ¶ 9, 305 P.3d 1054 ( Burk must be applied in the context of a § 110 attorney fee request "[w]hen ... issues are raised as to amount of time spent and complexity of the case...." (emphasis added) ).⁸ However, under § 110, the trial court is charged with ultimately awarding only such reasonable expenses "as may be just and proper under the circumstances," and thus the ultimate determination should be based on equitable factors such as the economic resources of the parties and the parties' behavior with regard to the welfare of their children—factors which would not be applied in the context of awarding fees pursuant to a mandatory prevailing party attorney fee statute.⁹

¶9 Here, because Father did not specifically challenge the reasonableness of the total fee sought by Mother, we reject Father's argument that the trial court erred as a matter of law in failing to apply the Burk factors.¹⁰ Cf. Smith , 2013 OK CIV APP 54, ¶ 9, 305 P.3d 1054 (Because such a specific challenge was made in Smith , the Smith Court reversed and remanded for a hearing "including, but not limited to the Burk criteria[.]").

¶10 As to the Finger factors and related equitable considerations, even Father admits the "outcome of the [underlying] case" and the "means and property of the [Father]" were forwarded below in support of the attorney fee request. Moreover, in addition to evidence presented showing Father has some ability to pay, counsel for Mother stated at the attorney fee hearing that "this [i.e., the underlying proceeding involving the insurance issue] was such a simple case," yet "[Father] has not been at all economical in this entire case"—"[i]t's been a waste of my client's time and money and mine too." The trial court agreed, stating, "[T]he Court will find that [Father] ... delayed it," and the trial court further stated,

Bottom line is the insurance plan, the numbers speak for themselves, and it was just an unnecessary process to just look at the insurance plan. And it sets out what the different plans are, the costs, and what the costs is for employee, employee plus children, and it has it separated out, it's clear on its face[.]¹¹

¶11 The trial court in this case properly undertook a judicial balancing of the equities consistent with § 110(D) & (E).¹² Consequently, we affirm the trial court's order.

CONCLUSION

¶12 Under § 110(D) & (E), the determination as to entitlement to fees, and the determination of the ultimate amount that is "just and proper under the circumstances," are equitable determinations that require a judicial balancing of the equities. However, the ultimate determination as to the proper amount of reasonable fees to be awarded to one party—although an equitable determination—cannot be properly made if the trial court is equipped only with an uncertain and disputed amount of total reasonable fees from which to make the equitable award. For this reason, we agree that Burk retains the role under § 110 specified herein. However, because Father did not specifically challenge the reasonableness of the fee sought by Mother, no error occurred in failing to apply the Burk factors in advance of the ultimate equitable determination. Accordingly, we affirm.

¶13 AFFIRMED .

RAPP,...