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GRUENWALD v. GRUENWALD2014 OK CIV APP 43324 P.3d 1267Case Number: 111722Decided: 03/21/2014Mandate Issued: 04/29/2014DIVISION ITHE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION ICite as: 2014 OK CIV APP 43, 324 P.3d 1267
ASHLEY PAGET GRUENWALD, Petitioner/Appellee,v.WILLIAM 
KEITH GRUENWALD, Respondent/Appellant.

APPEAL FROM THE DISTRICT COURT OFTULSA COUNTY, OKLAHOMA
HONORABLE CARL FUNDERBURK, JUDGE

REVERSED

Ashley Paget Gruenwald, Jones, Oklahoma, Pro Se,Todd Alexander, 
THE ALEXANDER LAW FIRM, PLLC, Tulsa, Oklahoma, for 
Respondent/Appellant.


Kenneth L. Buettner, Judge:
¶1 Respondent/Appellant William Keith Gruenwald (Husband) appeals from the 
trial court's order directing him to pay costs and attorney fees incurred by 
Petitioner/Appellee Ashley Paget Gruenwald (Wife) in Husband's emergency custody 
proceeding. The record does not show that the trial court found the information 
provided by Husband was false or that the trial court made a decision in 
reliance on such false information, as required to make an award of attorney 
fees under 43 O.S.2011 §107.4. 
We reverse.
¶2 The record shows the parties were divorced by a Decree of Dissolution 
filed November 28, 2011. The instant proceeding began when Husband filed his 
Application for Ex-Parte Emergency Custody Orders February 28, 2013. Husband 
alleged an emergency existed based on his belief Wife had transported the 
children while she was intoxicated, had allowed an unlicensed minor to operate a 
vehicle with the children present, had given a beer can to one of the children, 
had driven with the children while they were unrestrained, and had announced she 
planned to move the children to another city. Husband attached affidavits from 
witnesses to Wife's alleged conduct. Husband sought an emergency order changing 
custody from Wife to him and allowing Wife supervised visitation.
¶3 The court docket sheet indicates that on the same day, Husband and Wife 
appeared, with counsel, for a hearing at which the court denied the application 
for ex-parte emergency custody, but ordered Wife to wear an ankle monitor for 
alcohol until the next court date. The docket sheet indicates the court directed 
Wife to pay for the monitor "subject to reallocation." The court set the matter 
for another hearing March 5, 2013.
¶4 Wife filed her response March 4, 2013. She denied Husband's allegations 
and asserted the affidavits attached to his motion were false and misleading. 
She requested an order for Husband to pay the costs of the proceeding pursuant 
to 43 O.S.2011 §107.4(B). The 
record indicates the hearing set for March 5, 2013 was reset for March 7, 
2013.
¶5 Husband filed his Dismissal Without Prejudice March 6, 2013. The docket 
sheet shows that on March 7, 2013, Wife appeared with counsel and Husband's 
counsel appeared without Husband. The court ordered Wife's ankle monitor to be 
removed. The court further directed Husband to pay for the ankle monitor ($70) 
within 30 days and to pay Wife's reasonable attorney fees in the emergency 
proceeding ($2,125) within 60 days. An order reflecting these rulings was filed 
April 3, 2013, from which Husband appeals.
¶6 The statute on which the trial court relied in ordering Husband to pay 
Wife's costs and fees is 43 O.S.2011 
§107.4, which provides (emphasis added):


A. In a court proceeding concerning child custody or visitation, a motion 
    for an emergency custody hearing shall include an independent report, if 
    available, to include but not be limited to, a police report or a report 
    from the Department of Human Services, that demonstrates that the child is 
    in surroundings which endanger the safety of the child and that if such 
    conditions continue, the child would likely be subject to irreparable harm. 
    If there is no such report, the motion shall include a notarized affidavit 
    from an individual with personal knowledge that the child is in surroundings 
    which endanger the safety of the child and that not granting the motion 
    would likely cause irreparable harm to the child. Upon receipt of the motion 
    for emergency custody with supporting documentation, the court shall have 
    seventy-two (72) hours to conduct a hearing. If the court fails to conduct a 
    hearing within such time, the movant may present such motion to the 
    presiding judge of the judicial district, who shall conduct an emergency 
    custody hearing within twenty-four (24) hours of receipt of the motion.
B. If the court finds that any relevant information provided to the 
    court upon which the court relied to make its emergency custody decision to 
    be false, the court shall assess against the movant all costs, attorney 
    fees, and other expenses incurred as a result of such emergency custody 
    hearing. The movant shall pay all such costs, fees and expenses within 
    thirty (30) days. Failure to make such payment shall be grounds for 
    contempt, punishable by six (6) months in the county jail, a fine not to 
    exceed One Thousand Dollars ($1,000.00), or both such imprisonment and 
    fine.
Husband first argues the trial court denied his right to due process by 
granting fees and costs without notice and an opportunity to be heard, because 
Wife did not file an application for fees. Husband asserts that before a 
judgment may include fees, a party must file an application showing the fees 
requested are reasonable, citing 12 
O.S.2011 §696.4. That section provides that a civil judgment may include 
fees, but if it does not, a party seeking them must file an application. Here, 
Wife asked for an award of fees in her response to Husband's emergency filing 
and the order resolving this matter, the order directing the removal of the 
ankle monitor, included an award of fees. We find no support in §696.4 for a 
requirement that Wife file a separate application for fees, nor do we find 
Husband did not receive due process on the record here.
¶7 Husband next argues the trial court erred in awarding fees under §107.4 
where Husband dismissed his application and the trial court made no finding that 
Husband's supporting affidavits were false. Wife counters that Husband's 
emergency pleading constituted bad faith or oppressive conduct, which the trial 
court retains inherent authority to sanction. Wife contends Husband's dismissal 
the day before the hearing showed he knew his allegations were false.1
¶8 In this case, the trial court found only that the fees expended were 
reasonable. The statute plainly requires a finding that relevant material, on 
which the court relied to make its decision, was false. Here, the trial court 
made no decision on Husband's emergency application (apart from ordering Wife to 
wear an ankle monitor until the next hearing) and made no finding that the 
affidavits supporting Husband's application were false. Oklahoma follows the 
American Rule, in which each party bears his own attorney fees in the absence of 
a specific statute or contract. Eagle Bluff, L.L.C. v. Taylor, 2010 OK 47, ¶16, 237 P.3d 173. Statutes authorizing 
an award of attorney fees must be strictly construed. Id. The record here 
does not support an award of fees under §107.4 because these two elements have 
not been met. The trial court also made no finding that Husband's actions 
constituted bad faith litigation conduct warranting sanctions under the court's 
inherent authority. Because the order from which Husband appeals does not 
include the findings necessary to support an award of fees under §107.4, we 
REVERSE.

JOPLIN, P.J., and HETHERINGTON, V.C.J., concur.

FOOTNOTES

1 The 
language of §107.4(B) is analogous to provisions in the Oklahoma Pleading Code 
allowing sanctions for frivolous pleadings. See 12 O.S.2011 §2011 and §2011.1. 
However, §107.4 provides no 21 day "safe harbor" in which an offending pleading 
may be amended or withdrawn before it may be the basis of a sanctions award. 
Here, Husband dismissed his emergency custody application a week after filing 
it. We do not hold that dismissal of the application deprives the trial court of 
authority to award fees under §107.4(B), but only that a finding of falsity is 
required.


Citationizer© Summary of Documents Citing This DocumentCite
Name
Level
None Found.Citationizer: Table of AuthorityCite
Name
Level
Oklahoma Supreme Court Cases CiteNameLevel 2010 OK 47, 237 P.3d 173, EAGLE BLUFF, L.L.C. v. TAYLORDiscussedTitle 12. Civil Procedure CiteNameLevel 12 O.S. 696.4, Provision for Costs, Attorney Fees, and InterestCitedTitle 43. Marriage CiteNameLevel 43 O.S. 107.4, Motion for an Emergency Custody Hearing - Report - Affidavit - Penalties for False InformationDiscussed at Length










