In re Olson

• Decision Date: 21 January 2021
• Docket Number: A169142
• Citation: 308 Or.App. 633,480 P.3d 965
• Parties: In the Matter of the Marriage of Alexandra S. OLSON, Petitioner-Respondent, and Eric Ryan OLSON, Respondent-Appellant.
• Court: Oregon Court of Appeals

308 Or.App. 633

480 P.3d 965

In the Matter of the Marriage of Alexandra S. OLSON, Petitioner-Respondent, and Eric Ryan OLSON, Respondent-Appellant.

A169142

Court of Appeals of Oregon.

Submitted May 3, 2019.

January 21, 2021

Eric Ryan Olson filed the brief pro se.

No appearance for respondent.

Before DeHoog, Presiding Judge, and Aoyagi, Judge, and Kamins, Judge.

DeHOOG, P. J.

Husband, who is self-represented, appeals from a supplemental judgment that was entered after a general judgment of dissolution and that awards wife attorney fees. We reject without discussion husband's contentions that the trial court erred in awarding wife attorney fees and in not awarding him fees. We write only to address husband's additional contention that the trial court committed legal error in awarding wife attorney fees in an amount that exceeded the amount that wife actually incurred. We conclude that the trial court did not err or abuse its discretion in awarding attorney fees in excess of those actually incurred, and we therefore affirm the supplemental judgment.

Husband has requested that we review the trial court's ruling de novo . However, this is not a case that warrants de novo review, and we decline to do so. See ORAP 5.40(8)(c) (de novo review is appropriate in "exceptional cases"). We review the trial court's determination to award discretionary attorney fees and the amount of such fees for an abuse of discretion. ORS 20.075(3). A court may abuse its discretion if its decision is predicated on an erroneous legal conclusion. Callen and Callen , 307 Or. App. 714, 479 P.3d 313 (2020).

When a party obtains a dissolution judgment, courts are statutorily authorized to award attorney fees. Under ORS 107.105(1)(j), a judgment of dissolution may provide

"[f]or an award of reasonable attorney fees and costs and expenses reasonably incurred in the action in favor of a party or in favor of a party's attorney."

We have held that a court may award attorney fees as a part of the overall dissolution judgment, "taking into account the financial resources of the parties, the property division, and the support orders, if any." O'Neal and O'Neal , 158 Or. App. 431, 434, 974 P.2d 785 (1999).

Both parties in this case had legal counsel at trial and requested attorney fees. Wife was represented by an attorney from St. Andrews Legal Clinic, who charged wife $4,750 for legal services related to the dissolution, for 80 hours of work at a rate of $60 per hour. However, in his petition for attorney fees, wife's counsel requested fees in the amount of $19,245, for 80 hours of work at a rate of $240 per hour, which the attorney explained was the rate customarily charged by practitioners in the Portland metropolitan area with his level of experience. The trial court awarded wife $9,600, approximately half of the requested fees.

The court explained why it had decided to award wife fees but not the full amount requested:

"Respondent's behavior throughout this proceeding was a direct cause of the increased cost of this proceeding. Failure to tell the truth, failure to provide documents, failure to negotiate in good faith and then attempts to relitigate the case during the process to resolve the form of judgment are just some of the many ways Respondent's actions inflated the cost of this proceeding. Petitioner should assume a portion of her own fees as even in the most expeditiously resolved cases each side incurs reasonable fees, however, Petitioner should not have to assume [sic ] for Respondent's wasteful approach to this matter.

"For the reasons cited above, there is no basis to award Respondent any of his attorney fees and the Court denies his request for attorney fees."

Husband contends that the court erred in awarding wife more fees than she actually incurred. Husband's contention finds support in a plausible interpretation of the relevant statutory provision. As noted, ORS 107.105(1)(j) authorizes a court to make an award of "reasonable attorney fees and costs and expenses reasonably incurred in the action in favor of a party or in favor of a party's attorney." (Emphasis added.) It is plausible to interpret the phrase "reasonably incurred" as qualifying the availability of "reasonable attorney fees," thereby requiring that authorized fees be "reasonably"—and actually—"incurred." In Anderson v. Wheeler , 214 Or. App. 318, 322, 164 P.3d 1194 (2007), we addressed ORS 36.425(4)(b), which provides an entitlement to "attorney fees * * * incurred" in certain arbitration proceedings. We explained that, as used in that statute, "the term ‘incurred’ takes on its ordinary meaning" and "means that attorney fees are recoverable only if a party has incurred them—that is, has become liable to pay them." Applying that interpretation to ORS 107.105(1)(j), a court would only be authorized to award attorney fees for which a party is actually liable. But there is another interpretation of ORS 107.105(1)(j) that we conclude is somewhat more plausible—that the phrase "reasonably incurred" modifies only "costs and expenses." That interpretation appears more consistent with the statute's text, in which "attorney fees" is already qualified by "reasonable." As a result, husband's interpretation would lead to an arguable redundancy by requiring that "reasonable attorney fees" further be "reasonably incurred," which the legislature seems unlikely to have intended. See Vasquez v. Double Press Mfg., Inc. , 364 Or. 609, 622-23, 437 P.3d 1107 (2019) (noting that the court generally avoids construing a statute as redundant unless there is evidence that that is precisely what the legislature intended (internal quotation marks omitted)).

As a textual matter, our interpretation finds support in the rule of the last antecedent, a long-standing grammatical principle that can be helpful in interpreting at least some statutes. As the Supreme Court explained in State v. Webb , 324 Or. 380, 386, 927 P.2d 79 (1996) :

" ‘Referential and qualifying words and phrases, where no contrary intention appears, refer solely to the last antecedent. The last antecedent is the last word, phrase, or clause that can be made an antecedent without impairing the meaning of the sentence. Thus a proviso usually is construed to apply to the provision or clause immediately preceding it. The rule is another aid to discovery of intent

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