S058307, Opinion — Polacek and Polacek

278
On respondent on review's petition for attorney fees filed June 30,
considered and under advisement on August 10, petition for
attorney fees denied December 2, 2010
In the Matter of the Marriage of
Peggy Ann POLACEK,
Respondent on Review,
and
Gary Michael POLACEK,
Petitioner on Review.
(CC 15-05-13716; CAA138599; SC 8058307)
243 P3d 1190

Cite as 349 Or 278 	279
En Banc
Jeffrey E. Potter, Eugene, filed the petition for attorney
fees for respondent on review and the reply to petitioner on
review's objections.
Andrey B. Filipowicz, Law Offices of Jeffery M. Leving,
Ltd., Chicago, filed the objections to respondent on review's
petition for attorney fees and a request for findings. With him
on the filings was George W. Kelly.
DURHAM,J.
The petition for attorney fees is denied.

280 	Polacek and
DURHAM,J.
This matter is before the court on the petition of
respondent on review (mother) for an award of attorney fees
for her lawyer's services in opposing father's petition for
review in this court. Father has filed objections. For the rea-
sons set out below, we deny the petition.
Father and mother were married and had three chil-
dren, but separated in 2005. In 2006, the parties stipulated to
a judgment dissolving their marriage and awarding sole cus-
tody of the children to mother. One year after entry of the
judgment, father filed a motion under ORS 107.135(1)(a) to
modify the judgment. 1 The trial court conducted a hearing
and denied father's motion.
Father appealed. The Court of Appeals, in a written
opinion, affirmed. Polacek and Polacek, 232 Or App 499, 222
P3d 732 (2009). In a separate order, the Court of Appeals
granted mother's petition for attorney fees, in the full amount
requested, for services rendered in the appeal to the Court of
Appeals.
Father petitioned for review in this court. Mother
filed a response opposing the petition. This court denied
review. Polacek and Polacek, 348 Or 414, 233 P3d 817 (2010).
Mother has now filed a petition for attorney fees to
recover the cost of her lawyer's services, totaling $4,260, in
opposing the petition for review. Mother asserts that father
acted in bad faith in petitioning this court for review. In his
objections to the petition for attorney fees, father argues gen-
erally that he filed his petition for review in good faith and
supported the petition with relevant (if not ultimately per-
suasive) legal authority. Father's objections do not challenge
1 ORS 107.135(1)(a) provides, in part:
"The court may at any time after a judgment of* * * dissolution of mar-
riage* * *is granted, upon the motion of either party and after service of notice
on the other party in the manner provided by ORCP 7, and after notice to the
Division of Child Support when required under subsection (9) of this section:
"(a) Set aside, alter or modify any portion of the judgment that provides
* * * for the custody, parenting time, visitation, support and welfare of the
minor children and the children attending school, as defined in ORS 107.108
* * *"

Cite as 349 Or 278 (2010) 	281
the court's authority to award attorney fees or the reasona-
bleness of the services rendered and the hourly rate charged
by mother's lawyer.
This court ordinarily resolves disputed claims for
attorney fees by addressing the objections filed under ORAP
13.10(6) ("Objections to a petition shall be served and filed
within 14 days after the date the petition is filed."). See Kahn
v. Canfield, 330Or10, 13-14, 998 P2d 651 (2000) (''[W]hen an
attorney fees petition comports with the requirements of
ORAP 13.10(5), * * * our inquiry into the request generally
will be limited to the objections that are filed by the party
opposing the petition."). ORAP 13.10(9) identifies an excep-
tion to that rule:
"In the absence of timely filed objections to a petition
under this rule, the Supreme Court* * * will allow attorney
fees in the amount sought in the petition, except in cases in
which:
"* * * * *
"(b) The Supreme Court * * * is without authority to
award fees."
Because authority to award attorney fees is a prerequisite to
awarding the attorney fees sought in mother's petition, we
turn first to that question even though father's objections do
not question the court's authority to award the requested
attorney fees.
Of the potentially available sources of authority, see
Lehman u. Bradbury, 334 Or 579, 54 P3d 591 (2002) (discuss-
ing sources of judicial authority to award attorney fees), only
a statute could permit or require an award of attorney fees in
the context of this case. 2 Two statutes pertain to this court's
2 To determine this court's authority to award attorney fees, we examine the
pertinent statutes, not the procedural rules adopted by this court that guide or con-
trol appellate litigation concerning claims for attorney fees. Some of this court's
appellate court rules of procedure might be read (erroneously, in our view) as a
source of substantive entitlement to attorney fees. For example, ORAP 13.10(4)
provides:
"When the Supreme Court denies a petition for review, a petition for attor-
ney fees for preparing the petition for review or a response to the petition for
review shall be filed in the Supreme Court."
That rule, however, "governs the procedure for petitioning for attorney fees[.]"
ORAP 13.10(1). Statutory authority to award the attorney fees requested here
must be found elsewhere.

Polacek and Polacek
authority to award the attorney fees sought in the petition.
ORS 107.135(8) is a part of the statute that authorized
father's motion to modify the dissolutionjudgment. That sub-
section provides:
"In a proceeding under subsection (1) of this section, the
court may assess against either party a reasonable attorney
fee and costs for the benefit of the other party. If a party is
found to have acted in bad faith, the court shall order that
party to pay a reasonable attorney fee and costs of the
defending party."
ORS 107.135(8) authorizes the trial court to award
attorney fees in this case. That statute is silent, however,
regarding the authority of an appellate court to award attor-
ney fees on appeal or review from a trial court proceeding
under ORS 107.135(1).
The legislature has addressed that potential gap in
judicial authority by enacting ORS 19.440, which 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."
In Williams v. Cabinet Masters, Inc., 335 Or 49, 57
P3d 145 (2002), this court construed ORS 19.440 in a pro-
ceeding involving a claim by the defendants for attorney fees
incurred in successfully opposing plaintiffs' petitions for
review. A statute, ORS 36.425(4)(b), required the trial court
to award attorney fees to the defendants, but subsection
(5)(b) of that statute limited the potential award to 10 percent
of the amount claimed in the complaint. The question on
appeal was whether and how the cap on attorney fees applied
to the defendants' claim for attorney fees. This court stated in
regard to ORS 19.440:
"That statute is an interpretive rule that directs courts to
'construe' certain statutes that provide for 'the award or
allowance of attorney fees' to authorize 'that award or
allowance' to include fees incurred on appeal. We agree

Cite as 349 Or 278 	283
with defendants that ORS 19.440 requires us to construe
the statutory authorization for the award of attorney fees
found in ORS 36.425(4)(b) also to allow the award of attor-
ney fees incurred 'on an appeal in the action or proceeding.'
"* * * * *
"* * *As noted, ORS 19.440 applies only when another stat-
ute requires 'the award or allowance of attorney fees' but
the other statute fails to specify whether 'that award or
allowance' applies to trial or appellate court fees. In such
circumstances, ORS 19.440 instructs courts to interpret the
statute to authorize 'that award or allowance on an appeal.'
ORS 19.440 uses the phrase 'that award or allowance' three
times. The relative pronoun 'that' makes it apparent that
each use of the phrase 'that award or allowance' refers to
the initial phrase in ORS 19.440 of'the award or allowance
of attorney fees' authorized by another attorney fee statute,
rather than to any new or different 'award or allowance'
separately authorized by ORS 19.440. ORS 19.440 thus is
not, standing alone, a source oflaw for an award of attorney
fees on appeal; attorney fees on appeal can be awarded
under ORS 19.440 only to the extent that another statute
authorizes 'the award or allowance' of fees."
Id. 	at 	54-55 	(footnote 	omitted; 	emphases 	in 	original).
Williams noted that ORS 19.440 was part of a legislative
amendment adopted in 1981 that had modified dozens of
statutes relating to attorney fee claims by inserting the exist-
ing words "at trial and on appeal" after the words "a reason-
able attorney fee." Id. at 55 n 2 (discussing Oregon Laws
1981, chapter 897). After noting the array of statutes that
were subject to that type of amendment, the court stated:
Id.
"Nothing in ORS 19.440 or chapter 897 suggests that the
legislature intended to change in any substantive way the
existing statutes that authorized an award of fees, other
than to permit recovery of a party's appellate attorney fees
as authorized and as limited by the underlying attorney fee
statute."
We interpret ORS 19.440 (as construed in Williams)
and ORS 	107.135(8) together to determine this court's
authority to award attorney fees to mother after this court

284 	Polacek and Polacek
has denied father's petition for review. The question pre-
sented here concerns the legislature's intent in extending
the trial court's authority to award attorney fees, 	ORS
107.135(8), to an appellate court "on an appeal," ORS 19.440.
When construing a statute, our goal is to determine
the legislature's intent in enacting the statute. In doing so,
we begin with the statutory text and context, which are the
best evidence of the legislature's intent. State v. Gaines, 346
Or 160, 171, 206 P3d 1042 (2009) ("[A]s this court and other
authorities long have observed, there is no more persuasive
evidence of the intent of the legislature than 'the words by
which the legislature undertook to give expression to its
wishes.'" (Quoting prior case law; citation omitted.)). Where
the words in a statute have acquired a well-defined legal
meaning, we apply that legal definition. Bergerson v. Salem-
Keizer School District, 341Or401, 413, 144 P3d 918 (2006). A
statute's context includes other provisions of the same or
other related statutes, the pre-existing statutory framework
within which the statute was enacted, and prior opinions of
this court interpreting the 	pertinent statutory wording.
Wal-Mart Stores, Inc. v. City of Central Point, 341 Or 393,
397, 144 P3d 914 (2006); Dept. of Transportation v. Stallcup,
341 Or 93, 99, 138 P3d 9 (2006).
The legislature enacted what is now ORS 19.440 in
1981. Or Laws 1981, ch 897, § 107 (enacting ORS 19.220,
renumbered as ORS 19.440 (1997)). The legislature did not
specifically define the term "appeal" in that statute, but that
term had, and still has, a well-defined legal meaning. When
the legislature acted in 1981, a legal dictionary defined
"appeal" to mean "[r]esort to a superior (i.e., appellate) court
to review the decision of an inferior (i.e., trial) court or admin-
istrative agency. * * *" Black's Law Dictionary 88 (5th ed
1979). 3
"The current edition of that legal dictionary provides a similar definition. An
"appeal" is:
"[a] proceeding undertaken to have a decision reconsidered by a higher author-
ity; esp., the submission of a lower court's or agency's decision to a higher court
for review and possible reversal***."
Black's Law Dictionary 112 (9th ed 2009).

Cite as 349 Or 278 (2010) 	285
Both this court and the Court of Appeals are a "supe-
rior" court within that definition. However, we must review
other contextual sources to determine whether the legisla-
ture intended the phrase "on an appeal" in ORS 19.440 to
refer to a proceeding that consists only of a party's unsuccess-
ful effort to petition this court for review.
ORS 2.516 grants exclusive jurisdiction over all
appeals (except in two circumstances not relevant here) to
the Court of Appeals. That statute provides:
"Except where original jurisdiction is conferred on the
Supreme Court by the Oregon Constitution or by statute
and except as provided in ORS 19.405 and 138.255, the
Court of Appeals shall have exclusive jurisdiction of all
appeals."
ORS 2.520 authorizes a party aggrieved by a Court
of Appeals decision to petition this court for review as pro-
vided by the rules of the Supreme Court. That statute
provides:
"Any party aggrieved by a decision of the Court of
Appeals may petition the Supreme Court for review within
35 days after the date of the decision, in such manner as
provided by rules of the Supreme Court."
The Oregon Rules of Appellate Procedure (ORAP), to
which ORS 2.520 refers, make it clear that this court has the
inherent authority to decide, in its discretion, whether to
allow or deny a petition for review. ORAP 9.07 sets out a
lengthy list of factors that this court may consider in deciding
whether to allow a petition for review, but provides that this
court retains complete discretion to allow or deny a petition
for review:
"The Supreme Court considers the items set out below to be
relevant to the decision whether to grant discretionary
review. * * * They are neither exclusive nor binding. The
court retains the inherent authority to allow or deny any
petition for review."
(Emphasis added.)
This court's rules consistently refer to appellate liti-
gation as "on review," not "on appeal," after a party has filed
a petition for review of a decision of the Court of Appeals. See,

286 	Polacek and Polacek
e.g., ORAP 9.17(1) ("After the Supreme Court allows review,
the parties to the case on review may file briefs on the merits
of the case * * *."); ORAP 9.20(2) ("If the Supreme Court
allows a petition for review, the court may limit the questions
on review."); ORAP 9.20(5) ("The record on review shall con-
sist of the record before the Court of Appeals."). Those refer-
ences in the appellate rules suggest that a distinction exists
between appellate litigation "on review" and "on appeal," but
they do not explicitly rule out the possibility that a matter
pending "on review" is in some sense also "on an appeal."
This court's case law supplies a helpful resolution of that
conundrum.
In U-Cart Concrete v. Farmers Ins., 290 Or 151, 619
P2d 882 (1980), the plaintiff lost at trial and before the Court
of Appeals, and filed a petition for review in this court. The
defendants filed a response to the petition, urging this court
to deny it. This court denied review.
The defendants then filed a bill of costs and dis-
bursements, seeking a prevailing party fee of$75 and $32.50
for the expense of printing their response. To determine its
authority in the circumstances, the court examined three
pertinent statutes.
The first, ORS 20.010 (1979), authorized an award of
costs to the prevailing party in the judgment or decree. The
second, ORS 20.070(1) (1979), stated the amount of costs
allowable to the prevailing party "on an appeal" in this court
or the Court of Appeals as $75. The third, ORS 20.100 (1979),
authorized an award of costs, in the discretion of the court, if
the statutes failed to provide for the allowance of costs in the
particular action, suit, or proceeding.
The court assumed, without deciding, that ORS
20.100 (1979) applied and stated, "we exercise the discretion-
ary power not to allow costs in this instance." Id. at 154.
Explaining the basis for that conclusion, the court deter-
mined that, on denial of a petition for review, the respondent
has not "prevailed," and the court's action does not constitute
a decision "on an appeal."
"In a case in which this court affirms or reverses a judg-
ment, there is a prevailing party and a judgment to support

Cite as 349 Or 278 (2010) 	287
the award of costs. In denying a petition for review, we nei-
ther affirm nor reverse a judgment. We do not even implic-
itly decide that the respondent's position is correct or that
the Court of Appeals properly decided the case.
''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. (citation omitted).
U-Cart is pertinent to our interpretation of ORS
19.440 because the court concluded that the key phrase "on
an appeal" did not include a determination by this court to
deny review. 4 This court decided U-Cart on November 18,
1980, just months before the legislature enacted the prede-
cessor of ORS 19.440. As noted, we assume that the legisla-
ture was aware of this court's interpretation of the phrase "on
an appeal" when it used those words in the predecessor to
ORS 19.440. Nothing in the text, context, or legislative his-
tory of ORS 19.440 leads us to think that the legislature, in
using that phrase, meant something different than what this
court stated in U-Cart.
On the basis of the foregoing discussion, we conclude
that the legislature's intent regarding the applicability of
ORS 19.440 in this context is clear. That statute does not
authorize this court to award attorney fees to mother. Her
lawyer's services, principally the preparation and filing of a
brief urging this court to deny the petition for review, were
not rendered "on an appeal" within the meaning of ORS
19.440.
4 U-Cart recognized implicitly that a proceeding on review in this court may
ripen into an appeal if the court grants review. The court in that circumstance will
either affirm or reverse a judgment and one party will prevail:
"In a case in which this court affirms or reverses a judgment, there is a pre-
vailing party and a judgment to support the award of costs."
Id. at 154. This case, however, is not in that procedural posture.

288 	Polacek and Polacek
We recognize that, as a consequence of our interpre-
tation of ORS 19.440, mother may not look to father to
recover the cost of her lawyer's services in this court. If the
legislature wishes to alter this court's authority to award
attorney fees in that context, it may revisit that question
whenever it desires. 5
The petition for attorney fees is denied.
5 For example, ORS 20.310(1) specifically addresses this court's authority to
award costs and disbursements in connection with the denial of a petition for
review. That subsection provides, in part:
"In any appeal to the Court of Appeals or review by the Supreme Court, the
court shall allow costs and disbursements 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. * * * 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.) Although this case does not call for a detailed interpretation of
ORS 20.310(1), that statute demonstrates that, when the legislature desires to
grant this court authority to order the reimbursement of certain litigation
expenses to a party after the denial of a petition for review, it knows how to do so.