Opinion
Case No. 116 896 (Comp. with Case Nos. 116 244 & 116 722)
03-12-2019
In re the Marriage of: Lena Renee ROODZANT, Petitioner/Appellant, v. Daniel Charles ROODZANT, Respondent/Appellee.
Donelle H. Ratheal, Jason M. Gresham, Eric P. Warner, RATHEAL, MAGGARD & FORTUNE, PLLC, Oklahoma City, Oklahoma, for Petitioner/Appellant George H. Brown, Tony Gould, BROWN & GOULD, PLLC, Oklahoma City, Oklahoma, for Respondent/Appellee
Donelle H. Ratheal, Jason M. Gresham, Eric P. Warner, RATHEAL, MAGGARD & FORTUNE, PLLC, Oklahoma City, Oklahoma, for Petitioner/Appellant
George H. Brown, Tony Gould, BROWN & GOULD, PLLC, Oklahoma City, Oklahoma, for Respondent/Appellee
OPINION BY JANE P. WISEMAN, VICE-CHIEF JUDGE:
¶1 Lena Renee Roodzant appeals a trial court order denying her application for attorney fees and costs incurred in this dissolution of marriage action. After review, we conclude Lena's application must be granted pursuant to 43 O.S.2011 § 112.6. We reverse the denial and remand for further proceedings.
FACTS AND PROCEDURAL BACKGROUND
¶2 This is the third appeal involving the dissolution proceedings for Lena and Daniel Charles Roodzant. In Case No. 116,244, we addressed Daniel's appeal from a decree of dissolution of marriage. In that appeal, we affirmed the trial court's order. In Case No. 116,722, we addressed Daniel's appeal from a trial court ordering imposing a sentence for contempt. We affirmed the trial court's order except as to the amount of the attorney fees awarded to Lena which we reversed and remanded for further proceedings. This appeal involves the trial court's denial of Lena's application for attorney fees and costs for the dissolution of marriage proceedings.
¶3 The facts of this case have been discussed in depth in the two previous appeals, but we will restate them here as they relate to the attorney fee application. Lena and Daniel were married on May 26, 2012. Lena filed a petition for dissolution of marriage in Custer County, Oklahoma, on June 30, 2016. Two minor children were born of the marriage. On July 15, 2016, Daniel filed an objection to venue and motion to dismiss alleging Lena had never been a resident of Custer County. The trial court concluded there was no basis under Oklahoma law to dismiss the case, so the question before it was whether the case should be transferred to Caddo County, where Lena had previously resided. After considering all the circumstances and the interests of judicial economy, the trial court found Custer County was the proper venue and denied Daniel's motion to dismiss. The parties stipulated Lena should be granted sole custody of the children and after the trial, the court awarded Daniel visitation in accordance with a schedule set by the court.
¶4 In its order filed after trial, the court stated: "The Court determines from testimony received that a domestic violence incident occurred between the parties. [Daniel] is verbally and emotionally abusive to [Lena], and manipulated [Lena] by controlling the financial resources of the parties." After the trial court announced its decision regarding property and debt division, Daniel filed a motion to reconsider, which the trial court denied after a hearing. On July 7, 2017, the court entered a journal entry of judgment and decree of dissolution of marriage. As noted above, Daniel appealed from the trial court's decision and this Court affirmed the trial court's order.
¶5 On August 4, 2017, Lena filed an "Application to Assess Attorney Fees and Costs" for the dissolution proceedings and Daniel's motion to reconsider. An affidavit attached to the application indicated Lena incurred $106,829 in attorney fees. Daniel filed a response which detailed his objections to Lena's application.
¶6 On November 17, 2017, the trial court entered an order denying Lena's application for attorney fees and costs, stating, "Based upon the asset allocation for the reasons previously determined by the Court and the award of an attorney fee for the prosecution of the contempt citation, the Court finds that any additional attorney fee to [Lena] is not warranted." The order indicated it was sent to Lena's attorney by email.
¶7 On January 18, 2018, Lena filed a "Motion for Alternative Service of Final, Appealable Order and Supporting Brief." Lena alleged, "None of [her] filed pleadings include a Consent or Instructions for service by electronic transmission." Lena asserted she did not learn that the court had entered an order denying her application until she attended the January 10, 2018, hearing on a motion to quash filed by Daniel. Lena asserted, "Without a ‘Consent’ and ‘Instructions’ for electronic service by [Lena] or her counsel on a pleading or Entry of Appearance, this Court was required to direct service of the final, appealable Order to [Lena's] counsel by regular United States mail. It failed to provide effective service." She asserted, "Without a regular mailing, with the alternative service date, [Lena's] rights to pursue reconsideration and/or an appeal of this Court are foreclosed."
¶8 On February 27, 2018, the trial court entered an "Order Granting Petitioner's Motion for Alternative Service of Final Appealable Order on Attorney Fees and Costs." The trial court correctly directed that the order denying Lena's application "shall be sent to counsel of record through the USPS with a certificate of service filed with the court clerk." A certificate of mailing indicated a certified copy of the order was mailed to the attorneys of record on February 27, 2018.
¶9 On March 29, 2018, Lena filed a motion to reconsider the denial of her attorney fee and cost application. That same day, she filed a petition in error seeking review of the trial court's decision to deny her application for attorney fees and costs. On October 16, 2018, Lena filed an amended petition in error in which she indicated the trial court denied her motion to reconsider on August 6, 2018.
STANDARD OF REVIEW
¶10 "Whether a party has a right to recover a statutory attorney's fee is a legal question, and will be reviewed de novo by this Court." State ex rel. Dep't of Transp. v. Cedars Grp., L.L.C. , 2017 OK 12, ¶ 10, 393 P.3d 1095.
ANALYSIS
¶11 Lena asserts as her first proposition of error on appeal: "The trial court erred as a matter of law when it refused to award [Lena] any attorney fees or costs relating to the marriage dissolution proceeding after it specifically found that domestic violence had occurred during the marriage and that [Lena] was a domestic violence victim." We agree.
¶12 Lena cites 43 O.S.2011 § 112.6 in support of her argument, which provides:
In a dissolution of marriage or separate maintenance or custody proceeding, a victim of domestic violence or stalking shall be entitled to reasonable attorney fees and costs after the filing of a petition, upon application and a showing by a preponderance of evidence that the party is currently being stalked or has been stalked or is the victim of domestic abuse. The court shall order that the attorney fees and costs of the victimized party for the proceeding be substantially paid for by the abusing party prior to and after the entry of a final order.
Although the term " ‘shall’ can be used permissively .... generally, when the Legislature uses the term ‘shall,’ it signifies a mandatory directive or command." In re Harris , 2002 OK 35, n. 31, 49 P.3d 710.
¶13 Here, the trial court specifically found there had been a domestic violence incident during the marriage. This finding triggers a court, if requested, to award attorney fees and costs pursuant to 43 O.S.2011 § 112.6, because such an award pursuant to this statutory provision is mandatory. ¶14 Daniel asserts Lena is not entitled to attorney fees and costs pursuant to § 112.6 because she "did not request fees for domestic abuse." We conclude that this provision is applicable in deciding the attorney fee issue even if Lena did not request fees specifically under this section in her attorney fee and cost application.
¶15 For example, in Maxxum Construction, Inc. v. First Commercial Bank , 2011 OK CIV APP 84, ¶ 10, 256 P.3d 1058, the plaintiff "asserted the equitable remedy of unjust enrichment to recover for unpaid labor and services rendered." This Court concluded, "Because the underlying nature of the action was one to recover damages arising directly from the provision of labor or services, [ 12 O.S. § 936 ] authorized an award of prevailing party attorney's fees to [the defendant], having prevailed on [the plaintiff's] labor and services claim." The Court instructed that "if the underlying nature of the suit is one to recover for unpaid labor or services rendered, § 936 authorizes an award of prevailing party attorney's fees, even though recovery is claimed under an equitable theory." Id . ¶ 8. Here, § 112.6 was applicable and should have been considered although Lena filed a general application for attorney fees.
¶16 After Lena requested attorney fees in this dissolution of marriage action, with the trial court's finding of domestic violence, she was entitled to have her request considered pursuant to § 112.6. Daniel argues that Lena raised the issue of domestic violence for the first time in her motion to reconsider. Although supported by the record, this fact is not dispositive of the issue before us because (1) the trial court specifically found a domestic violence incident occurred during the marriage, and domestic violence was therefore already an issue in the case, and (2) Lena timely appealed from the order denying her application rather than from the order denying her motion to reconsider.
¶17 On remand, the trial court will be required to address Lena's application pursuant to § 112.6, and award a reasonable attorney fee and costs considering the court's previous asset allocation and whatever attorney fee amount has been awarded for the prosecution of the contempt citation.
CONCLUSION
¶18 Because the legislative directive in 43 O.S.2011 § 112.6 makes the award of attorney fees and costs mandatory in this situation, the denial of Lena's request for at least a portion of her attorney fees and costs in this dissolution of marriage action requires reversal. Accordingly, we must reverse the denial and remand for further proceedings as outlined in this Opinion.
¶19 REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.
BARNES, P.J., and RAPP, J., concur.