Hilliker v. Hilliker , 1988 Alas. LEXIS 144 ( 1988 )

RABINO WITZ, Justice,

dissenting.

Appellate Rule 508(e) provides that “Attorney’s fees may be allowed in an amount to be determined by the court.” In Kodiak Western Alaska Airlines v. Bob Harris Flying Service, 592 P.2d 1200 (Alaska 1979), we held that this court has the discretion to award attorney’s fees or not to award them.¹ Id. at 1205. In the case at bar I would deny any award of costs or attorney’s fees under our discretionary authority provided for in Appellate Rule 508(d) and (e).

In my view there is merit in Virginia’s position that costs and attorney’s fees should not, as a matter of course, be awarded to the prevailing party in a divorce appeal. In the instant case, it is unfair to award $2,363.00 in costs and $750.00 in attorney’s fees against Virginia, who was not the appellant; rather she was forced to defend the superior court’s judgment because of the prevailing party’s appeal.² This unfairness is manifest in light of the fact that Virginia presented defensible arguments in support of the superior court’s' judgment.

I think it sufficient for purposes of resolution of the motion for reconsideration to conclude that upon consideration of (1) the issues presented in the merit appeal, (2) the degree to which either party prevailed, (3) the economic needs of the parties, and (4) the absence or presence of good faith, no costs or attorney’s fees should be awarded Ben against Virginia under our discretionary authority provided for in Appellate Rule 508(d) and (e)³

1 . In regard to the matter of costs on appeal our Appellate Rules vest this court with similar discretion. In this regard Appellate Rule 508(d) states in part: "When costs are awarded in the appellate court, they shall include, unless the court otherwise orders,_" (emphasis supplied).

2 . A total award of $3,113.00 in costs and attorney’s fees can hardly be characterized as nominal.

3 . This conclusion seems particularly appropriate in light of the court’s disposition of the primary appeal. Our remand could leave Virginia with less than one-half of the marital property, an annual income of less than one-fifth of Ben’s, and the possibility that she will be required to sell the family home.