§6.7 Attorney Fees

JurisdictionOregon
§ 6.7 ATTORNEY FEES

§ 6.7-1 Attorney Fees Are Part of Property Division

The trial court has statutory authority to award attorney fees, costs, and expenses of suit as long as it finds that they were reasonably incurred by a party. ORS 107.105(1)(j). The issue for lawyers is how this statute is applied. As a practical matter, attorney fees may be awarded to the "prevailing" party as in any other lawsuit. Unfortunately, determining who the prevailing party is in a divorce is usually difficult due to the varieties of relief involved. This is why the court does not allow the use of an offer of compromise under ORCP 54 E in dissolution proceedings. In re Marriage of Saunders, 158 Or App 601, 607, 975 P2d 927 (1999).

The award of attorney fees also can be treated as a property issue. In re Marriage of Haguewood, 292 Or 197, 213, 638 P2d 1135 (1981). When the parties are presumably drawing the money to pay attorney fees from the same marital estate, it is not fair (as a property issue) if one party gets more of the estate to pay that party's lawyer than does the other party. In Haguewood, 292 Or at 213, the court explained that neither spouse should be denied the opportunity to sue or defend due to a lack of equal access to marital resources. Further, the financial resources of the parties, the property division made by the judgment, and any support orders entered

are all relevant to a trial court's determination of attorney fees under the statute. If neither party has the resources, whether in the form of assets or earning power, to pay the costs of litigation, it would be inequitable to require either party to pay the costs of the other.

Haguewood, 292 Or at 213. "[I]f the parties are equally able to bear the costs of litigation, an order for one to pay the other's costs" would be inequitable. Haguewood, 292 Or at 213. However, when the cash, income-producing capability, or liquid assets are all in the hands of one party, an award of attorney fees should be made for the spouse without resources. This award will be reflected in the property division. Hague-wood, 292 Or at 213. See In re Marriage of Howard, 103 Or App 342, 353, 798 P2d 683 (1990) (an award of costs and attorney fees to the wife was appropriate because the case was complicated and required expert evidence, the husband had access to most of the relevant information, and his corporation paid for his appraisals and his accountant's fees).

See also In re Marriage of Gano-Ridge & Ridge, 211 Or App 393, 412, 155 P3d 84, adh'd to as modified on recons, 213 Or App 235, 159 P3d 1292 (2007), in which the court awarded the wife attorney fees based on the parties' disparate economic circumstances resulting from an award of the "long half" of the assets to the husband.

PRACTICE TIP

Many judges are reluctant to award attorney fees in divorce cases because they see only the assets that appear on the spreadsheet at trial. The judge seldom knows who had money available for attorney fees before the actual hearing, who was cooperative or noncooperative, who made settlement offers, etc. The presentation of this type of evidence is appropriate at trial because attorney fees are a property issue. However, most judges ask that the parties stipulate that any decision on attorney fees be made after judgment using the statutory procedure set forth in ORCP 68. Of course, the award of property has already been made by the time the court sees an affidavit that recites all of the above factors and the others described in ORCP 68. In a case in which a lawyer really believes that an award of attorney fees is justified, it would be good practice to put forth some evidence on the issue as a way of letting the judge know if the award should at least be considered, with more information (specifically settlement or the lack thereof) brought to the judge's attention after the trial in chief through the ORCP 68 process.

§ 6.7-2 Procedure

The pleading requirements of ORCP 68 are specific. In general, the failure to allege a claim for attorney fees prevents the claim from being made. In re Marriage of Ornelas, 217 Or App 124, 131, 174 P3d 1077 (2007). Thus, a party's response indicating merely that "respondent appears" is a sufficient answer to avoid the entry of a default judgment against that party, but is an insufficient basis on which to make a later claim for attorney fees.

Even so, the courts have allowed a broad range of allegations to support a later claim for fees, and "[m]isidentification of the proper attorney fee provision will be treated as harmless error when the facts asserted provide a basis for attorney fees and the affected party is given adequate notice that fees will be sought." In re Marriage of St. Sauver, 196 Or App 175, 188-89, 100 P3d 1076 (2004).

In some cases, the court has even held that the statutory basis of a request for fees need not be specified at all "when the facts asserted would provide a basis for an award of fees, the parties have fairly been alerted that attorney fees would be sought and no prejudice would result." In re Marriage of Hogue, 118 Or App 89, 92, 846 P2d 422 (1993) (quoting In re Marriage of Page, 103 Or App 431, 434, 797 P2d 408 (1990)). But see Mulier v. Johnson, 332 Or 344, 350, 29 P3d 1104 (2001) (emphasis in original), in which the court held that ORCP 68's requirement that a party seeking attorney fees "shall allege the facts, statute, or rule which provides a basis for the award" in a pleading is mandatory, not discretionary.

Some trial courts make an oral or letter ruling at the end of a case that indicates that the judge has already decided that it will not award attorney fees in a particular matter. Even so, the court must consider a claim for fees if one is filed under ORCP 68. The trial court's failure to follow those procedures is error. In re Marriage of Proctor & Smith Proctor, 203 Or App 499, 506, 125 P3d 801 (2005), adh'd to as modified on recons, 204 Or App 250, 129 P3d 186 (2006).

ORCP 68 C(4)(a) provides:

A party seeking attorney fees or costs and disbursements shall, not later than 14 days after entry of judgment:
C(4)(a)(i) file with the court a signed and detailed statement of the amount of attorney fees or costs and disbursements that explains the application of any factors that ORS 20.075 or any other statute or rule requires or permits the court to consider in awarding or denying attorney fees or costs and disbursements, together with proof of service, if any, in accordance with Rule 9 C; and
C(4)(a)(ii) serve, in accordance with Rule 9 B, a copy of the statement on all parties who are not in default for failure to appear.

Once an ORCP 68 request for fees is filed, the opposing party is then allowed 14 days to file an objection. ORCP 68 C(4)(b).

The 14-day deadlines are strictly interpreted unless a proper ORCP 15 D motion to permit a late filing is made. See Husted v. SCI Oregon Funeral Services, Inc., 209 Or App 45, 49, 146 P3d 376 (2006) (the plaintiff's failure to file an attorney fee affidavit within 14 days after the entry of the judgment prevented the plaintiff from making the claim; the plaintiff's filing would have been timely had the court used the date of the amended general judgment as the start point, but the date of the original general judgment for calculation purposes was used; no ORCP 15 D motion was filed); as compared to Johnson v. Best Overhead Door, LLC, 238 Or App 559, 242 P3d 740 (2010) (the plaintiff asked the trial court to exercise its discretion under ORCP 15 D to permit a late filing and the court did so), and Ornduff v. Hobbs, 273 Or App 169, 359 P3d 331 (2015) (the court allowed permission to file an untimely statement requesting fees based on an ORCP 15 D motion filed nearly two months after the defendants objected to the statement as untimely). The difference in those cases is clearly the proper filing of an ORCP 15 D request for an extension of time. That rule grants trial courts "broad authority" to extend statutory time limits, and even to grant extensions after the time period for the original filing has lapsed. Ornduff, 273 Or App at 182.

§ 6.7-2(a) Establishing the Amount of Attorney Fees

An attorney fee statement under ORCP 68 is not a "mere pleading," but can also serve an evidentiary purpose of presenting evidence of the fees incurred and their reasonableness if properly itemized and verified. State, ex rel. Department of Transportation v. Gonzales, 74 Or App 514, 519-20, 703 P2d 271, rev den, 300 Or 249 (1985).

In Gonzales, the plaintiff argued that under ORCP 68 C(4), the defendants were required to present proof in support of the claimed fees once the plaintiff had objected to the defendant's cost bill and had presented evidence that the amounts concerned were unreasonable. The plaintiff asserted "that the affidavit of defendants' counsel and its appended itemization of attorney hours [was] not evidence" but, instead, was "a mere pleading and that, even if considered as evidence, it was not put in evidence at the hearing." Gonzales, 74 Or App at 519. The plaintiff averred that "the affidavit could not be sufficient to support an award of attorney fees, because it [was] 'merely a summation of the hours expended by defendants' counsel, and a conclusory statement by defendants' counsel that the fee is reasonable.'" Gonzales, 74 Or App at 519...

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