No. 843 November 27, 2024 369
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
A. N. A.,
Petitioner-Appellant,
v.
JUSTIN TRAVIS ALEXANDER,
Respondent-Respondent.
Clackamas County Circuit Court
22PO09399; A180175
Ann M. Lininger, Judge.
Argued and submitted September 13, 2023.
George W. Kelly argued the cause and filed the brief for
appellant.
Barry W. Engle argued the cause for respondent. Also on
the brief was Barry W. Engle PC.
Before Tookey, Presiding Judge, and Egan, Judge, and
Kistler, Senior Judge.
EGAN, J.
Affirmed.
370 A. N. A. v. Alexander
EGAN, J.
In this proceeding under the Family Abuse
Prevention Act (FAPA), in which the trial court dismissed the
petition, petitioner challenges the trial court’s assessment of
attorney fees payable to respondent. Petitioner argues that
a fee assessed in a FAPA proceeding is subject to ORCP 68,
and that respondent did not comply with that rule. We conclude that ORCP 68 is not applicable to the assessment of
attorney fees in FAPA proceedings and therefore affirm.
Petitioner sought a restraining order against respondent under ORS 107.700 to ORS 107.735. After an ex parte
hearing, the trial court issued a temporary restraining
order. See ORS 107.718 (describing ex parte procedure). On
respondent’s objection, however, the trial court held a second hearing and then dismissed the restraining order. See
ORS 107.116 (describing contested proceeding). The court
explained its impression that petitioner was “positioning for
a dissolution trial.”
ORS 107.716(3)(b) authorizes the trial court to
assess attorney fees against either party to a FAPA proceeding. It provides:
“In a hearing held pursuant to subsection (1) or (2) of
this section:
“…
“The court may cancel or change any order issued under
ORS 107.718 and may assess against either party a reasonable attorney fee and such costs as may be incurred in the
proceeding.”
After the hearing, respondent requested attorney fees.
Petitioner responded that fees were not available, because
respondent had not complied with ORCP 68, which applies
generally to FAPA proceedings. The trial court agreed with
respondent that ORCP 68 was not applicable and issued
an order assessing the requested fees. Then, as ordered by
the court, respondent drafted a general judgment for the
court’s signature awarding the assessed fees. Petitioner
now appeals, contending that the trial court erred, because
ORCP 68 C states that the procedures set out in ORCP 68
Cite as 336 Or App 369 (2024) 371
for requesting attorney fees apply to all cases, unless an
exception applies, and none is applicable here.
Respondent responds that an exception to ORCP 68
is applicable, and we agree.1 ORCP 68 C(1)(b) states that the
rule does not apply to attorney fees “granted by order, rather
than entered as part of a judgment.” FAPA proceedings are
resolved by order, and fees may be assessed by order; thus,
they need not be included in a judgment. See ORS 107.716;
ORS 107.718. See also T. P. O. v. Jeffries, 267 Or App 118,
120,
340 P3d 125 (2014) (An order, not a judgment, concludes
the FAPA matter); Strother and Strother,
130 Or App 624,
628,
883 P2d 249 (1994), rev den,
320 Or 508 (1995) (“[A] proceeding under the Abuse Prevention Act is a special statutory proceeding and … a restraining order issued under
the Act, following the hearing provided for in ORS 107.718(6),
is an appealable order.”).2 Thus, although the court here
also included the assessed fees in a judgment, that was not
required. Because attorney fees under ORS 107.716(3)(b) may
assessed by order and need not be entered in a judgment,
they fall within the exception stated in ORCP 68 C(1)(c).
The text of ORS 107.716(3)(b) is consistent with our
conclusion. Under ORS 107.716(3)(b), the trial court, in its
discretion, may “assess” attorney fees, meaning that fees
can be assessed by the court on its own motion that does not
depend on a request for fees. Necessarily, a court’s authority to sua sponte assess fees under ORS 107.716(3)(b) is not
1
ORCP 68 C provides, as relevant:
“Notwithstanding Rule 1 A and the procedure provided in any rule or
statute permitting recovery of attorney fees in a particular case, this section
governs the pleading, proof, and award of attorney fees in all cases, regardless of the source of the right to recover such fees, except when:
“C.(1)(a) attorney fees are claimed as damages arising prior to the action;
“C.(1)(b) attorney fees are granted by order, rather than entered as part of
a judgment; or
“C.(1)(c) a statute refers to this rule but provides for a procedure that
varies from the procedure specified in this rule.”
2
It makes sense that a FAPA proceeding concludes with an order rather
than a judgment. When a FAPA order is issued after an ex parte hearing, the
court’s authority over the matter is not concluded: the order continues (and the
court maintains jurisdiction) for a period of two years, unless the respondent
requests an oral hearing in writing within 30 days. ORS 107.718(3). And if the
court continues the temporary order after a hearing under ORS 107.716, that
order also continues for two years, unless superseded. ORS 107.716(6).
372 A. N. A. v. Alexander
subject to ORCP 68.3 For that additional reason, we conclude that the trial court did not err in determining that an
assessment of fees under ORS 107.716(3)(b) is not subject to
ORCP 68.4 We therefore affirm the award of attorney fees.
Affirmed.
3
We note that the Commentary to ORCP 68 C(1)(c) by the Council on Court
Procedures states that ORCP 68
“applies only to costs and fees which are included in the judgment. Other fees
and costs, such as discovery sanctions which are part of a court order and
enforceable by contempt, would not be covered by the rule.”
Comment, Final Draft, Proposed Oregon Rules of Civil Procedure, Nov 24, 1978.
The Commentary’s list of one type of fees and costs that would not be covered by
the rule does not alter our conclusion that the rule’s text, as ultimately enacted
(exempting attorney fees that are “granted by order, rather than entered as part
of a judgment”) does not apply to attorney fee assessments made under ORS
107.716.
4
We note that FAPA “pleadings,” for both an initial petition and a respondent’s request for hearing, are submitted on forms supplied by the Oregon
Judicial Department, which include no space for requesting attorney fees. See
ORS 107.718(7) (“The State Court Administrator shall prescribe the content
and form of the petition, order and related forms for use under ORS 107.700 to
107.735. The clerk of the court shall make available the forms and an instructional brochure explaining the rights set forth under ORS 107.700 to 107.735.”).
