In Re the Marriage of Polacek
243 P.3d 1190
| Or. | 2010Background
- Married with three children; separation in 2005; dissolution judgment in 2006 awarding mother sole custody.
- Father moved to modify custody under ORS 107.135(1)(a); trial court denied modification.
- Court of Appeals affirmed denial; separate order awarded mother attorney fees for the appeal in the amount requested.
- Mother sought $4,260 for services in opposing father's petition for review in this court.
- Father argued petition for review was in good faith and supported by legal authority; he did not challenge authority or reasonableness of fees.
- The Supreme Court denied mother’s petition for attorney fees, interpreting ORS 19.440 and ORS 107.135(8) to determine appellate authority.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ORS 19.440 authorizes appellate attorney fees by this court | Polacek argues ORS 19.440 permits fees on appeal | Polacek contends the statute does not grant appellate fees for denials of review | No, ORS 19.440 does not authorize here |
| Whether ORS 107.135(8) authorizes fees on appeal | Mother relies on 107.135(8) for fee authority | Father argues the statute applies only to trial-stage awards | Statute authorizes trial-level awards only; not on appeal |
| What is the correct interpretation of ORS 19.440 when paired with ORS 107.135(8) | OR 19.440 should extend to appellate fees | Legislature did not intend appellate authority when paired with 107.135(8) | ORS 19.440, interpreted with Williams, does not authorize appellate fees here |
| Do ORS 2.516, ORS 2.520 and ORAP rules affect appellate-fee authority | These provisions imply review-based authority exists | They do not establish authority to award fees on denial of review | They do not authorize appellate fees in this context |
| Should the petition for attorney fees be granted given lack of statutory authority | Fees requested are reasonable and justified | Authority missing; fees denied | Petition denied for lack of statutory authority |
Key Cases Cited
- Williams v. Cabinet Masters, Inc., 335 Or. 49 (2002) (interprets ORS 19.440 to allow appellate fees when underlying statute authorizes them)
- U-Cart Concrete v. Farmers Ins., 290 Or. 151 (1980) (denial of review not an 'on appeal' proceeding; informs ORS 19.440 scope)
- Kahn v. Canfield, 330 Or. 10 (2000) (procedural limitations on petitions for attorney fees under ORAP 13.10)
- Lehman v. Bradbury, 334 Or. 579 (2002) (discusses sources of judicial authority to award attorney fees)