633
Submitted May 3, 2019, affirmed January 21, 2021
In the Matter of the Marriage of
Alexandra S. OLSON,
Petitioner-Respondent,
and
Eric Ryan OLSON,
Respondent-Appellant.
Multnomah County Circuit Court
16DR26161; A169142
480 P3d 965
Husband appeals from a supplemental judgment entered after a general
judgment of dissolution, contending that the trial court erred in awarding wife
attorney fees and not awarding him fees, and also erred in setting the amount
of the award higher than the fees actually incurred by wife. Held: Writing to
address only husband’s contention that the trial court committed legal error in
awarding wife attorney fees in an amount that exceeded the amount that wife
actually incurred, the Court of Appeals concluded that ORS 107.105(1)(j), the
statutory provision authorizing an award of reasonable attorney fees upon dissolution, does not limit the award to fees actually incurred. The court held that the
trial court did not err or abuse its discretion in awarding attorney fees in excess
of those actually incurred.
Affirmed.
Katherine E. Tennyson, Judge.
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.
Affirmed.
634 Olson and Olson
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
P3d 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 P2d 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
Cite as 308 Or App 633 (2021) 635
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 P3d 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
636 Olson and Olson
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 P3d 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 P2d 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
or meaning ….’
“ ‘Evidence that a qualifying phrase is supposed to
apply to all antecedents instead of only to the immediately
preceding one may be found in the fact that it is separated
from the antecedents by a comma.’ ”
(Quoting Norman J. Singer, 2A Sutherland Statutory
Construction § 47.33, at 270 (5th ed 1992).) We note that,
in ORS 107.105(1)(j), no comma separates the qualifying
phrase “reasonably incurred” from the immediately preceding antecedents, “costs and expenses.” Thus, although it is
not definitive, an application of the rule of the last antecedent would suggest to us that the qualifying phrase “reasonably incurred” applies only to those immediately preceding
antecedents and not to “reasonable attorney fees.”
Cite as 308 Or App 633 (2021) 637
That textual interpretation is consistent with the
statute’s context. ORS 107.105(5) provides that, if an appeal
is taken from a dissolution judgment, “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.” Like ORS 107.105(1)(j), that subsection
authorizes an award of “reasonable” attorney fees, but it
does not include a qualifier that the fees be incurred. We
do not think that the legislature would have intended to set
different qualifiers for the availability of reasonable fees at
trial and on appeal.
The statute’s enactment history further persuades
that our interpretation is correct. ORS 107.105 formerly
provided that a dissolution court could award “any further sums as additional attorney fees or additional costs
and expenses of suit or defense as the court finds reasonably and necessarily incurred by such party[.]” ORS 107.105
(1)(i) (2001).1 Thus, the statute formerly unambiguously
stated that attorney fees must have been “incurred.” But in
2003, the legislature rewrote that provision in a new subsection, ORS 107.105(1)(j), providing that a court may include
in the dissolution judgment “an award of reasonable attorney fees in favor of a party or in favor of a party’s attorney,”
former ORS 107.105(1)(j), Or Laws 2003, ch 576, § 109, thus
removing the qualifier that fees be “reasonably and necessarily incurred.” Then, in 2005, the legislature amended the
statute to its present form, adding text authorizing a court
to award “costs and expenses reasonably incurred in the
action.” Or Laws 2005, ch 568, § 29. That history reinforces
our interpretation drawn from the subsection’s text and context that the phrase “reasonably incurred” as used in ORS
107.105(1)(j) is intended to qualify only “costs and expenses.”
Thus, we reject husband’s contention that an award of attorney fees under ORS 107.105(1)(j) is limited to fees actually
incurred.
The trial court here awarded wife approximately
half of the fees she had requested. Defendant does not
1
ORS 107.105 has been amended a number of times since 2001. However,
as the remainder of our discussion demonstrates, only two of those amendments
affect our analysis.
638 Olson and Olson
otherwise contend that the amount awarded was unreasonable, and we conclude that the trial court did not abuse its
discretion.
Affirmed.
