In re Marriage of Polacek

• Jurisdiction: Oregon
• Court: Oregon Supreme Court
• Citation: 349 Or. 278,243 P.3d 1190
• Docket Number: (CC 15-05-13716; CA A138599; SC S058307).
• Parties: In the Matter of the MARRIAGE of Peggy Ann POLACEK, Respondent on Review, and Gary Michael Polacek, Petitioner on Review.
• Decision Date: 02 December 2010

243 P.3d 1190

349 Or. 278

In the Matter of the MARRIAGE of Peggy Ann POLACEK, Respondent on Review, and Gary Michael Polacek, Petitioner on Review.

(CC 15-05-13716; CA A138599; SC S058307).

Supreme Court of Oregon, En Banc.

On Respondent on Review's Petitio for Attorney Fee June 30, 2010.

Considered and Under Advisemen Aug. 10, 2010.

Decided Dec. 2, 2010.

Jeffrey E. Potter, Eugene, filed the petition for attorney fees for respondent on review and the reply to petitioner on review's objections.

Andrey B. Filipowicz, Law Offices of Jeffery M. Leving, Ltd., Chicago, filed the objections to respondent on review's petition for attorney fees and a request for findings. With him on the filings was George W. Kelly.

DURHAM, J.

This matter is before the court on the petition of respondent on review (mother) for an award of attorney fees for her lawyer's services in opposing father's petition for review in this court. Father has filed objections. For the reasons set out below, we deny the petition.

Father and mother were married and had three children, but separated in 2005. In 2006, the parties stipulated to a judgment dissolving their marriage and awarding sole custody of the children to mother. One year after entry of the judgment, father filed a motion under ORS 107.135(1)(a) to modify the judgment.¹ The trial court conducted a hearing and denied father's motion.

Father appealed. The Court of Appeals, in a written opinion, affirmed. Polacek and Polacek, 232 Or.App. 499, 222 P.3d 732 (2009). In a separate order, the Court of Appeals granted mother's petition for attorney fees, in the full amount requested, for services rendered in the appeal to the Court of Appeals.

Father petitioned for review in this court. Mother filed a response opposing the petition. This court denied review. Polacek and Polacek, 348 Or. 414, 233 P.3d 817 (2010).

Mother has now filed a petition for attorney fees to recover the cost of her lawyer's services, totaling $4,260, in opposing the petition for review. Mother asserts that father acted in bad faith in petitioning this court for review. In his objections to the petition for attorney fees, father argues generally that he filed his petition for review in good faith and supported the petition with relevant (if not ultimately persuasive) legal authority. Father's objections do not challengethe court's authority to award attorney fees or the reasonableness of the services rendered and the hourly rate charged by mother's lawyer.

This court ordinarily resolves disputed claims for attorney fees by addressing the objections filed under ORAP 13.10(6) ("Objections to a petition shall be served and filed within 14 days after the date the petition is filed."). See Kahn v. Canfield, 330 Or. 10, 13-14, 998 P.2d 651 (2000) ( "[W]hen an attorneyfees petition comports with the requirements of ORAP 13.10(5), * * * our inquiry into the request generally will be limited to the objections that are filed by the party opposing the petition."). ORAP 13.10(9) identifies an exception to that rule:

"In the absence of timely filed objections to a petition under this rule, the Supreme Court * * * will allow attorney fees in the amount sought in the petition, except in cases in which:

" * * * * *

"(b) The Supreme Court * * * is without authority to award fees."

Because authority to award attorney fees is a prerequisite to awarding the attorney fees sought in mother's petition, we turn first to that question even though father's objections do not question the court's authority to award the requested attorney fees.

Of the potentially available sources of authority, see Lehman v. Bradbury, 334 Or. 579, 54 P.3d 591 (2002) (discussing sources of judicial authority to award attorney fees), only a statute could permit or require an award of attorney fees in the context of this case.² Two statutes pertain to this court'sauthority to award the attorney fees sought in the petition. ORS 107.135(8) is a part of the statute that authorized father's motion to modify the dissolution judgment. That subsection provides:

"In a proceeding under subsection (1) of this section, the court may assess against either party a reasonable attorney fee and costs for the benefit of the other party. If a party is found to have acted in bad faith, the court shall order that party to pay a reasonable attorney fee and costs of the defending party."

ORS 107.135(8) authorizes the trial court to award attorney fees in this case. That statute is silent, however, regarding the authority of an appellate court to award attorney fees on appeal or review from a trial court proceeding under ORS 107.135(1).

The legislature has addressed that potential gap in judicial authority by enacting ORS 19.440, which provides:

"Any statute law of this state that authorizes or requires the award or allowance of attorney fees to a party in a civil action or proceeding, but does not expressly authorize or require that award or allowance on an appeal in the action or proceeding and does not expressly prohibit that award or allowance on an appeal, shall be construed as authorizing or requiring that award or allowance on an appeal in the action or proceeding."

In Williams v. Cabinet Masters, Inc., 335 Or. 49, 57 P.3d 145 (2002), this court construed ORS 19.440 in a proceeding involving a claim by the defendants for attorney fees incurred in successfully opposing plaintiffs' petitions for review. A statute, ORS 36.425(4)(b), required the trial court to award attorney fees to the defendants, but subsection (5)(b) of that statute limited the potential award to 10 percent of the amount claimed in the complaint. The question on appeal was whether and how the cap on attorney fees applied to the defendants' claim for attorney fees. This court stated in regard to ORS 19.440:

"That statute is an interpretive rule that directs courts to 'construe' certain statutes that provide for 'the award or allowance of attorney fees' to authorize 'that award or allowance' to include fees incurred on appeal. We agreewith defendants that ORS 19.440 requires us to construe the statutory authorization for the award of attorney fees found in ORS 36.425(4)(b) also to allow the award of attorney fees incurred 'on an appeal in the action or proceeding.'

" * * * * *" * * * As noted, ORS 19.440 applies only when another statute requires 'the award or allowance of attorney fees' but the other statute fails to specify whether 'that award or allowance' applies to trial or appellate court fees. In such circumstances, ORS 19.440 instructs courts to interpret the statute to authorize 'that award or allowance on an appeal.' ORS 19.440 uses the phrase 'that award or allowance' three times. The relative pronoun 'that' makes it apparent that each use of the phrase 'that award or allowance' refers to the initial phrase in ORS 19.440 of 'the award or allowance of attorney fees' authorized by another attorney fee statute, rather than to any new or different 'award or allowance' separately authorized by ORS 19.440. ORS 19.440 thus is not, standing alone, a source of law for an award of attorney fees on appeal; attorney fees on appeal can be awarded under ORS 19.440 only to the extent that another statute authorizes 'the award or allowance' of fees."

Id. at 54-55, 57 P.3d 145 (footnote omitted; emphases in original). Williams noted that ORS 19.440 was part of a legislative amendment adopted in 1981 that had modified dozens of statutes relating to attorney fee claims by inserting the existing words "at trial and on appeal" after the words "a reasonable attorney fee." Id. at 55 n. 2, 57 P.3d 145 (discussing Oregon Laws 1981, chapter 897). After noting the array of statutes that were subject to that type of amendment, the court stated:

"Nothing in ORS 19.440 or chapter 897 suggests that the legislature intended to change in any substantive way the existing statutes that authorized an award of fees, other than to permit recovery of a party's appellate attorney fees as authorized and as limited by the underlying attorney fee statute."

Id.

We interpret ORS 19.440 (as construed in Williams ) and ORS 107.135(8) together to determine this court's authority to award attorney fees to mother after this courthas denied father's petition for review. The question presented here concerns the legislature's intent in extending the trial court's authority to award attorney fees, ORS 107.135(8), to an appellate court "on an appeal," ORS 19.440.

When construing a statute, our goal is to determine the legislature's intent in enacting the statute. In doing so, we begin with the statutory text and context, which are the best evidence of the legislature's intent. State v. Gaines, 346 Or. 160, 171, 206 P.3d 1042 (2009) ("[A]s this court and other authorities long have observed, there is no more persuasive evidence of the intent of the legislature than 'the words by which the legislature undertook to give expression to its wishes.' " (Quoting prior case law; citation omitted.)). Where the words in a statute have acquired a well-defined legal meaning, we apply that legal definition. Bergerson v. Salem-Keizer School District, 341 Or. 401, 413, 144 P.3d 918 (2006). A statute's context includes other provisions of the same or other related statutes, the pre-existing statutory framework within which the statute was enacted, and prior opinions of this court interpreting the pertinent statutory wording. Wal-Mart Stores, Inc. v. City of Central Point, 341 Or. 393, 397, 144 P.3d 914 (2006); Dept. of Transportation v. Stallcup, 341 Or. 93, 99, 138 P.3d 9 (2006).

The legislature enacted what is now ORS 19.440 in 1981. Or. Laws 1981, ch. 897, § 107 (enacting ORS 19.220, renumbered as ORS 19.440 (1997)). The legislature did not specifically define the term "appeal" in that statute, but that term had, and still has, a well-defined legal meaning. When the legislature acted in 1981, a legal dictionary defined "appeal" to mean "[r]esort to a superior (i.e., appellate) court to...