S058330, Opinion — Bolte and Bolte

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On respondent on review's petition for attorney fees and costs filed July 20,
considered and under advisement on August 10, costs allowed to respondent
on review in the sum of $8.40, petition for attorney fees denied December 2, 2010
In the Matter of the Marriage of
John Patrick BOLTE,
Petitioner on Review,
and
Mary Elizabeth BOLTE,
Respondent on Review.
(CC 0730310; CA A139055; SC S058330)
243 P3d 1187

# En Banc

Pamela S. Hediger, Evashevski, Elliott, Cihak &
Hediger, P.C., Corvallis, filed the petition for attorney fees for
respondent on review.

J. Michael Alexander, Swanson, Lathen, Alexander,
McCann & Prestwich, P.C., Salem, filed the objection to the
petition for attorney fees.

DURHAM, J.

Costs allowed to respondent on review in the sum of
$8.40. The petition for attorney fees is denied.

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# DURHAM, J.

This matter is before the court on the petition for
attorney fees and cost bill filed by respondent on review
(wife). Petitioner on review (husband) objects, asserting that
this court lacks authority to award attorney fees and costs to
wife and that, even if such authority exists, the court should
decline to award attorney fees and costs. For the reasons set
out below, we allow costs to wife and deny the petition for
attorney fees.

This is a marriage dissolution proceeding. Wife
appealed the trial court judgment and argued for increased
spousal support. The Court of Appeals modified the support
amount and otherwise affirmed. Bolte and Bolte, 233 Or App
565, 226 P3d 116 (2010). Husband petitioned this court for
review of the Court of Appeals decision. Wife filed a response
to the petition. This court denied review. Bolte and Bolte, 348
Or 523, 236 P3d 151 (2010).

Wife now petitions this court for an award of attor-
ney fees in the amount of $1,890, representing the expense of
filing her response to the petition for review, and costs in the
amount of $8.40. Because husband's objections challenge this
court's authority to award attorney fees or costs in any
amount, we first examine this court's authority in the cir-
cumstances, beginning with wife's cost bill.

ORS 20.310(1) provides:

"In any appeal to the Court of Appeals or review by the
Supreme Court, the court shall allow costs and disburse-
ments to the prevailing party, unless a statute provides
that in the particular case costs and disbursements shall
not be allowed to the prevailing party or shall be allowed to
some other party, or unless the court directs otherwise. If,
under a special provision of any statute, a party has a right
to recover costs, such party shall also have a right to recover
disbursements. On the same terms and conditions, when the
Supreme Court denies a petition for review, the respondent
on review is entitled to costs and disbursements reasonably
incurred in connection with the petition for review."

(Emphasis added.) Petitioner does not challenge the amount
of costs requested by wife. Because ORS 20.310(1) authorizes

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this court to award costs in this context, we allow wife's cost
bill in the amount of $8.40.

Wife bases her petition for attorney fees on review on
ORS 107.105(5), which provides:

"If an appeal is taken from the judgment or other
appealable order in a suit for * * * dissolution of a marriage
\* \* \* and the appellate court awards costs and disburse-
ments to a party, the court may also award to that party, as
part of the costs, such additional sum of money as it may
adjudge reasonable as an attorney fee on the appeal."1

The phrase "the appellate court" in that statute is broad
enough to embrace both the Court of Appeals and this court.
However, the statutory grant of discretionary authority to
award attorney fees applies only in the context of "an appeal"
and only for attorney fees reasonably incurred "on the
appeal." The statutory term "appeal" unquestionably
includes an appellate proceeding before the Court of Appeals.
The question here, however, is whether the term "appeal" in
ORS 107.105(5) refers to a proceeding before this court in
which the court denies a petition for review. Although the
text of the statute does not explicitly address that matter, an
examination of the enactment history of the statute and this
court's case law answers that question.

Before 1970, this court had exclusive jurisdiction
over appeals from decrees in suits for dissolution of marriage.
At that time, this court was Oregon's only appellate court; the

1 ORS 107.105(5) expressly authorizes "the appellate court" to award attorney
fees in an "appeal" from a judgment regarding dissolution of marriage. We note
that ORS 19.440 creates a rule of interpretation supporting court authority to
award attorney fees "on an appeal," if the attorney fee statute that pertains to the
claim or proceeding does not expressly authorize or require an award of attorney
fees on appeal. Because ORS 107.105(5) expressly authorizes an award of attorney
fees on an appeal, the interpretive rule in ORS 19.440 plays no role in our analysis
of this court's authority to award attorney fees in the context of this case.

ORS 19.440 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."

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Court of Appeals did not yet exist. The pertinent statute at
the time, ORS 107.100(3) (1967), provided:

"If an appeal is taken from the decree or other appeala-
ble order in a suit for dissolution or annulment of the mar-
riage contract, and the Supreme Court awards costs and
disbursements to the prevailing party, it may also award to
that party, as part of the costs, such additional sum of
money as it may adjudge reasonable as an attorney fee on
the appeal."

Effective July 1, 1970, the legislature created the
Court of Appeals and gave it exclusive jurisdiction over,
among other matters, "[a]ppeals from judgments, as defined
in ORS 19.005, of circuit courts: (A) In suits for divorce
** * [.]” ORS 2.510(2)(d) (1969) (codifying Or Laws 1969,
ch 198, § 1). The legislature also provided for discretionary
review in this court of final judgments of the Court of Appeals
by means of a petition for review process. Or Laws 1969,
ch 198, § 2 (codified as ORS 2.520 (1969)). In 1977, the legis-
lature expanded the exclusive jurisdiction of the Court of
Appeals to "all appeals." Or Laws 1977, ch 158, § 2 (codified
at ORS 2.516 (1977)).

The legislature in 1969 also amended the statute
authorizing an award of attorney fees on appeal in marital
dissolution cases by striking the words "Supreme Court" and
inserting the words "appellate court."2 Or Laws 1969, ch 591,
§ 283. The amended version of ORS 107.100(3) (1969)
provided:

2 ORS 107.105(5), the attorney fee statute under review, has undergone sev-
eral other amendments to produce the statutory wording in its present form. First,
in 1971, the legislature repealed ORS 107.100 and reenacted the attorney fee stat-
ute as ORS 107.105(3). Or Laws 1971, ch 280, §§ 13, 28. The legislature renum-
bered ORS 107.105(3) (1971) as ORS 107.105(4) in 1977, and renumbered the stat-
ute again as ORS 107.105(5) in 1981. Or Laws 1977, ch 847, § 2; Or Laws 1981,
ch 775, § 1. Second, in 1983, the legislature eliminated the requirement that the
party receiving an award of attorney fees be the prevailing party. Or Laws 1983, ch
728, § 2. Third, in 2003, the legislature substituted the term "judgment" for the
term "decree" to conform to other amendments to other statutes describing the pro-
cedure for appeals. Or Laws 2003, ch 576, § 109. Those changes are not material to
our examination of this court's authority under that statute to award attorney fees
when it denies a petition for review. We note them here, however, to describe the
statute's history completely.

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"If an appeal is taken from the decree or other appeal-
able order in a suit for dissolution or annulment of the mar-
riage contract, and the appellate court awards costs and
disbursements to the prevailing party, it may also award to
that party, as part of the costs, such additional sum of
money as it may adjudge reasonable as an attorney fee on
the appeal."

The creation of the Court of Appeals, with exclusive
jurisdiction over "all appeals," and the replacement of this
court's former jurisdiction over appeals with authority over a
discretionary petition for review process have altered the
nature of this court's function in considering claims of error.
This court explained that change in 1000 Friends of Oregon v.
Bd. of Co. Comm., 284 Or 41, 44-45, 584 P2d 1371 (1978):

"The function of this court is no longer to afford every
losing litigant a forum to review errors said to have been
committed at trial or in an administrative hearing. That
function is now placed in the Court of Appeals. Similarly, a
party asserting that the Court of Appeals, in turn, has erred
cannot for that reason alone expect further review in this
court. The process must stop somewhere, and for most pur-
poses this is at the first level of appeal. However, since this
court will not grant review whenever it appears that the
Court of Appeals reached a questionable decision, it follows
that a denial of review carries no implication that the deci-
sion or the opinion of the Court of Appeals was correct.

[I]t is plain that denial of review in this or any
other case may not be taken as expressing even a slight sign
that this court approves the decision or the opinion of the
Court of Appeals."

The change in this court's function on review, noted
above, has a procedural consequence that goes beyond the
neutrality point discussed in 1000 Friends of Oregon. In
U-Cart Concrete v. Farmers Ins., 290 Or 151, 619 P2d 882
(1980), this court explained that a denial of review by this
court signifies that the court has declined to entertain an
appeal; that denial in no way represents a decision on an
appeal because there is no appeal before the court. Address-
ing a statute that entitled a prevailing party to recover costs
"on an appeal," the court stated:

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"When a petition for review is denied, the respondent
has not prevailed 'on an appeal' in this court. Rather, the
court has chosen not to entertain an 'appeal.' There is no
basis for awarding costs 'on an appeal.'

"With respect to the matter before us, therefore, we find
there is no judgment of this court to support an award of
costs and there is no appeal before the court. We hold that
there is no basis for an award of costs under the statutes."

Id. at 154-55. Even though U-Cart addressed a claim for costs
"on an appeal," this court has determined that the analysis in
U-Cart applies with equal force to a petition for attorney fees
on "appeal." Polacek and Polacek, 349 Or 278, 243 P3d 1190
(2010).

We conclude from the foregoing that, because this
court denied the petition for review, wife cannot satisfy the
requirement that the attorney fees that she seeks pertain to
"an appeal" within the meaning of ORS 107.105(5). As
U-Cart explained, when this court denies a petition for
review, the court has declined to entertain an appeal and
there is no appeal before the court. 290 Or at 154-55. Thus,
this case presents no occasion for the exercise of judicial dis-
cretion to decide whether to allow attorney fees and there is
no reason to consider the criteria in ORS 20.075(1) that typi-
cally inform such a discretionary choice.3

We add one additional comment. As already noted,
we have concluded that ORS 20.310(1) authorizes this court
to award "costs" to the respondent on review when this court
denies a petition for review. ORS 107.105(5) provides that, if
the appellate court in a dissolution of marriage proceeding
awards costs to a party, the court also may award that party
an attorney fee "as part of the costs[.]" Do those statutes,
when read together, supply this court with authority to
award an attorney fee to wife upon the denial of husband's

3 ORS 20.075(1) provides:

"A court shall consider the following factors in determining whether to
award attorney fees in any case in which an award of attorney fees is author-
ized by statute and in which the court has discretion to decide whether to
award attorney fees[.]"

The statute then lists eight factors that the court must consider in deciding, in its
discretion, whether to award attorney fees.

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petition for review and the allowance of costs to wife? The
answer is no. Nothing in ORS 20.310(1) provides authority to
any court to award an attorney fee. The phrase, "as part of
the costs," in ORS 107.105(5) indicates the procedural con-
text in which an appellant court may award an attorney fee
on appeal, but it does not transform an appellate attorney fee
into an item of "costs" on appeal. Despite the reference to
"costs" in ORS 20.310(1) and ORS 107.105(5), this court may
award an attorney fee in this context only if the legislature
has authorized it to do so. That authority does not currently
exist.

Costs allowed to respondent on review in the sum of
$8.40. The petition for attorney fees is denied.