DURHAM, J.
This matter is before the court on the petition for attorney fees and cost bill filed by respondent on review (wife). Petitioner on review (husband) objects, asserting that this court lacks authority to award attorney fees and costs to wife and that, even if such authority exists, the court should decline to award attorney fees and costs. For the reasons set out below, we allow costs to wife and deny the petition for attorney fees.
This is a marriage dissolution proceeding. Wife appealed the trial court judgment and argued for increased spousal support. The Court of Appeals modified the support amount and otherwise affirmed. Bolte and Bolte, 233 Or.App. 565, 226 P.3d 116 (2010). Husband petitioned this court for review of the Court of Appeals decision. Wife filed a response to the petition. This court denied review. Bolte and Bolte, 348 Or. 523, 236 P.3d 151 (2010).
Wife now petitions this court for an award of attorney fees in the amount of $1,890, representing the expense of filing her response to the petition for review, and costs in the amount of $8.40. Because husband's objections challenge this court's authority to award attorney fees or costs in any amount, we first examine this court's authority in the circumstances, beginning with wife's cost bill.
ORS 20.310(1) provides:
(Emphasis added.) Petitioner does not challenge the amount of costs requested by wife. Because ORS 20.310(1) authorizes this court to award costs in this context, we allow wife's cost bill in the amount of $8.40.
Wife bases her petition for attorney fees on review on ORS 107.105(5), which provides:
The phrase "the appellate court" in that statute is broad enough to embrace both the Court of Appeals and this court. However, the statutory grant of discretionary authority to award attorney fees applies only in the context of "an appeal" and only for attorney fees reasonably incurred "on the appeal." The statutory term "appeal" unquestionably includes an appellate proceeding before the Court of Appeals. The question here, however, is whether the term "appeal" in ORS 107.105(5) refers to a proceeding before this court in which the court denies a petition for review. Although the text of the statute does not explicitly address that matter, an examination of the enactment history of the statute and this court's case law answers that question.
Before 1970, this court had exclusive jurisdiction over appeals from decrees in suits for dissolution of marriage. At that time, this court was Oregon's only appellate court; the Court of Appeals did not yet exist. The pertinent statute at the time, ORS 107.100(3) (1967), provided:
Effective July 1, 1970, the legislature created the Court of Appeals and gave it exclusive jurisdiction over, among other matters, "[a]ppeals from judgments, as defined in ORS 19.005, of circuit courts: (A) In suits for divorce * * *[.]" ORS 2.510(2)(d) (1969) (codifying Or. Laws 1969, ch. 198, § 1). The legislature also provided for discretionary review in this court of final judgments of the Court of Appeals by means of a petition for review process. Or. Laws 1969, ch. 198, § 2 (codified as ORS 2.520 (1969)). In 1977, the legislature expanded the exclusive jurisdiction of the Court of Appeals to "all appeals." Or. Laws 1977, ch. 158, § 2 (codified at ORS 2.516 (1977)).
The legislature in 1969 also amended the statute authorizing an award of attorney fees on appeal in marital dissolution cases by striking the words "Supreme Court" and inserting the words "appellate court."
The creation of the Court of Appeals, with exclusive jurisdiction over "all appeals," and the replacement of this court's former jurisdiction over appeals with authority over a discretionary petition for review process have altered the nature of this court's function in considering claims of error. This court explained that change in 1000 Friends of Oregon v. Bd. of Co. Comm., 284 Or. 41, 44-45, 584 P.2d 1371 (1978):
The change in this court's function on review, noted above, has a procedural consequence that goes beyond the neutrality point discussed in 1000 Friends of Oregon. In U-Cart Concrete v. Farmers Ins., 290 Or. 151, 619 P.2d 882 (1980), this court explained that a denial of review by this court signifies that the court has declined to entertain an appeal; that denial in no way represents a decision on an appeal because there is no appeal before the court. Addressing a statute that entitled a prevailing party to recover costs "on an appeal," the court stated:
Id. at 154-55, 619 P.2d 882. Even though U-Cart addressed a claim for costs "on an appeal," this court has determined that the analysis in U-Cart applies with equal force to a petition for attorney fees on "appeal." Polacek and Polacek, 349 Or. 278, 282, 243 P.3d 1190 (2010) (decided this date).
We conclude from the foregoing that, because this court denied the petition for review, wife cannot satisfy the requirement that the attorney fees that she seeks pertain to "an appeal" within the meaning of ORS 107.105(5). As U-Cart explained, when this court denies a petition for review, the court has declined to entertain an appeal and there is no appeal before the court. 290 Or. at 154-55, 619 P.2d 882. Thus, this case presents
We add one additional comment. As already noted, we have concluded that ORS 20.310(1) authorizes this court to award "costs" to the respondent on review when this court denies a petition for review. ORS 107.105(5) provides that, if the appellate court in a dissolution of marriage proceeding awards costs to a party, the court also may award that party an attorney fee "as part of the costs[.]" Do those statutes, when read together, supply this court with authority to award an attorney fee to wife upon the denial of husband's petition for review and the allowance of costs to wife? The answer is no. Nothing in ORS 20.310(1) provides authority to any court to award an attorney fee. The phrase, "as part of the costs," in ORS 107.105(5) indicates the procedural context in which an appellant court may award an attorney fee on appeal, but it does not transform an appellate attorney fee into an item of "costs" on appeal. Despite the reference to "costs" in ORS 20.310(1) and ORS 107.105(5), this court may award an attorney fee in this context only if the legislature has authorized it to do so. That authority does not currently exist.
Costs allowed to respondent on review in the sum of $8.40. The petition for attorney fees is denied.
ORS 19.440 provides:
The statute then lists eight factors that the court must consider in deciding, in its discretion, whether to award attorney fees.