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Supreme Court of Oklahoma.

Brian Ray FRIEND, Petitioner/Appellant, v. Kirsten Denise FRIEND, Respondent/Appellee.

No. 118,339

Decided: March 22, 2022

Marianne Miller, The Parsons Law Firm, P.L.L.C., Shawnee, Oklahoma, for Petitioner/Appellant Jerry L. Colclazier, Colclazier & Associates, Seminole, OK, for Respondent/Appellee

¶1 This case arises from a longstanding custody and child support dispute. The issue before the Court involves the appropriateness of appellate attorney fees. We reaffirm our previous holding that a prevailing party who is entitled to attorney fees in the district court is also entitled to recover appellate attorney fees. Ellis v. Lebowitz, 1990 OK 107, ¶ 4, 799 P.2d 620, 621.

Procedural History

¶2 The underlying facts of the case are not necessary to resolve the issue. Procedurally, after an initial determination of child support and custody, Appellee Kirsten Friend (Mother) sought to modify the child support order and applied to find Appellant Brian Friend (Father) in contempt, claiming he had not paid child support for several months. The Seminole County District Court granted Mother's motions. The trial court found Father in indirect contempt and increased the child support payment. Mother asked for attorney fees and costs, dividing the request into fees incurred for the request to modify child support and fees incurred for the contempt request. Father objected but conceded the only issue was whether Mother was legally entitled to the fees. The District Court awarded Mother $19,604.14 in attorney fees.

¶3 Father appealed only the attorney fees award. The Court of Civil Appeals, Division I (COCA) affirmed the award of attorney fees in an opinion not for publication. Mother filed a request for appellate attorney fees which was denied by a one-sentence order, and Mother then filed her petition for writ of certiorari.

Standard of Review

¶4 Although COCA's decision does not distinguish between the two fee awards, this Court must. We review a decision denying attorney fees which are mandated by statute de novo. Ellis, 1990 OK 107, ¶ 4, 799 P.2d at 621.1 Where a statute permits an award of fees within the trial court's discretion, we review a decision for abuse of discretion, determining whether the court's conclusion is clearly erroneous and against reason and evidence. Boatman v. Boatman, 2017 OK 27, ¶ 16, 404 P.3d 822, 828; see also Thielenhaus v. Thielenhaus, 1995 OK 5, ¶ 19, 890 P.2d 925, 934-35 (fees awarded under 43 O.S. § 110).

Mother is entitled to appellate attorney fees under 43 O.S. § 111.1(C)(3)

¶5 This Court has clearly stated that, where a statute mandates an award of attorney fees in the trial court, the prevailing party is also entitled to recover appellate attorney fees; this decision “is not discretionary.” Ellis, 1990 OK 107, ¶ 4, 799 P.2d at 621.

¶6 Mother asked the trial court to hold Father in contempt for failure to pay child support pursuant to 43 O.S. § 111.1(C)(1).2 When she prevailed, the trial court granted her attorney fees under 43 O.S. § 111.1(C)(3). If the terms of Section 111.1(C) are met, attorney fees are mandatory: “Unless good cause is shown for the noncompliance, the prevailing party shall be entitled to recover court costs and attorney fees expended in enforcing the order and any other reasonable costs and expenses incurred in connection with the denied child support or denied visitation as authorized by the court.” 43 O.S. § 111.1(C)(3) (emphasis added). Here, the trial court found Father in indirect contempt, because Father had no good cause for his failure to pay. Thus, Mother was entitled to attorney fees connected with the action for contempt, and under Section 111.1(C)(3) the trial court did not have discretion to refuse her request.

¶7 COCA's summary denial of Mother's request for appeal-related attorney fees under Section 111.1(C)(3) directly conflicts with Ellis. Well after Ellis was decided in 1990, COCA determined in Winkler that, although the prevailing party below was entitled to attorney fees mandated by statute, the award of appellate attorney fees was discretionary. Winkler v. Solutions Group, Inc., 1995 OK CIV APP 134, ¶ 10, 915 P.2d 386, 388. Without citing Ellis, COCA relied in Winkler on Sisney v. Smalley, 1984 OK 70, 690 P.2d 1048. In Sisney, we noted that, where a statute authorizes attorney fees for the prevailing party at trial, appellate attorney fees may be allowed. Id. ¶ 20, 690 P.2d at 1051. This is a general statement regarding the ability to recover appeal-related attorney fees. It neither conflicts with nor controls over the later, more specific ruling in Ellis. Neither Sisney nor subsequent cases repeating that language should be understood to say that an appeals court has discretion regarding an award of attorney fees, when under a particular statute the trial court does not.

¶8 Under 43 O.S. § 111.1(C)(3), the trial court did not have discretion whether to award Mother attorney fees below. Thus, COCA had no discretion over whether to award appellate attorney fees upon Mother's request.

Mother is entitled to appellate attorney fees under 43 O.S. § 110(D)

¶9 Mother also requested attorney fees under 43 O.S. § 110(D).3 This statute provides that the trial court has discretion to require either party to pay reasonable expenses (including attorney fees) of the other party. The trial court exercised its discretion and based on the totality of the circumstances, awarded Mother attorney fees.

¶10 We have held that, where the issue involves an award of attorney fees below, a party who prevails on appeal “is entitled to recover for legal services rendered” on the appeal. State ex rel. Harris v. Three Hundred and Twenty Five Thousand and Eighty Dollars, 2021 OK 16, ¶ 25, 485 P.3d 242, 248. To determine whether Mother's request for appellate attorney fees under Section 110(D) was just and proper under the circumstances, the appellate court must engage in a judicial balancing of equities. Thielenhaus, 1995 OK 5, ¶ 19, 890 P.2d at 935.

¶11 However, the single sentence with which COCA denied Mother's request provides us no basis for determining whether COCA balanced the equities here. And as the order does not reflect an exercise of discretion, we are unable to review it for abuse of discretion. As COCA recognized, at the hearing before the trial court, Father's attorney explicitly did not contest the reasonableness of the fee request. Father's objections went to whether Mother was entitled to recover attorney fees at all, but not to the amount requested. Given this, COCA correctly found that the trial court's award was not an abuse of discretion. On the same record, we conclude that Mother was entitled to attorney fees under Section 110(D).

¶12 COCA's opinion is vacated. We remand the case to the trial court to determine the amount of appeal-related attorney fees.


“I would not overrule the Court of Civil Appeals' discretionary denial of fees.”


1.   This Court has used the abuse of discretion standard when reviewing claims of statutory entitlement that did not mandate a specific award of attorney fees, as a decision regarding attorney fees in these cases was ultimately within the trial court's discretion. See, e.g., TRW/Reda Pump v. Brewington, 1992 OK 31, ¶ 10 n.4, 829 P.2d 15, 21 n.4; Broadwater v. Courtney, 1991 OK 39, ¶ 6, 809 P.2d 1310, 1312.

2.   “Violation of an order providing for the payment of child support or providing for the visitation of a noncustodial parent with any of the children of such noncustodial parent may be prosecuted as indirect civil contempt pursuant to Section 566 of Title 21 of the Oklahoma Statutes or as otherwise deemed appropriate by the court.”

3.   “Upon granting a decree of dissolution of marriage, annulment of a marriage, or legal separation, the court may require either party to pay such reasonable expenses of the other as may be just and proper under the circumstances.”



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