Cheros v. Cheros
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:  1997 ME 37
Docket:  FRA-96-320
Submitted on briefs February 14, 1997
Decided March 7, 1997

Panel:  WATHEN, C.J., and GLASSMAN, CLIFFORD, RUDMAN, DANA and LIPEZ, JJ.

JACQUELINE A. CHEOROS

v.

WILLIAM G. CHEOROS

CLIFFORD, J.

	[¶1]  William Cheoros appeals from a judgment entered in the
Superior Court (Franklin County, Alexander, J.), finding him liable for
attorney fees incurred during an appeal previously brought from the
Superior Court to the Law Court.  On appeal, William argues that the
Superior Court lacked jurisdiction to rule on attorney fees because the Law
Court did not remand the case to the Superior Court.  We disagree and
affirm.
	[¶2]  On April 5, 1995, while an appeal between the two parties was
pending in the Law Court, Jacqueline filed a motion in the Law Court for
attorney fees for defending the appeal.  On December 26, 1995, we issued a
summary order of affirmance in Jacqueline's favor without expressly
remanding the matter to the Superior Court for consideration of attorney
fees.  On March 5, 1996, however, Jacqueline's counsel submitted an
affidavit to the Superior Court in regard to the attorney fees.  William's
counsel objected on jurisdictional grounds.  On April 4, 1996, the court,
after a hearing, concluded that Jacqueline was entitled to attorney fees in
the amount of $2,313.10, and that William had the ability to pay.  On April 9,
1996, William moved pursuant to M.R. Civ. P. 52(a) for findings of fact and
conclusions of law, and the court subsequently denied the motion.  This
appeal followed.
	[¶3]  William, citing several cases, argues that the Superior Court may
not consider a motion to award attorney fees for an appeal when the Law
Court disposes of the case without remanding it to the Superior Court.  See
Raymond v. Raymond, 480 A.2d 718, 726 (Me. 1984); Boyd v. Boyd, 421
A.2d 1356, 1359 (Me. 1980); Prue v. Prue, 420 A.2d 257, 260 (Me. 1980);
Bryant v. Bryant, 411 A.2d 391, 396 (Me. 1980).  We are unpersuaded by
William's contentions.  Attorney fees in divorce cases for appeals to the Law
Court are allowed pursuant to 19 M.R.S.A. §§ 693, 722 (1981 & Supp.
1996).  Parker v. Parker, 598 A.2d 446, 448 (Me. 1991); see also Cooley v.
Powell, 544 A.2d 752, 753 (Me. 1988) (paternity proceeding).  Maine Rule
of Civil Procedure 54(b)(3), effective March 1, 1994, provides:

(3) When final judgment has been entered on all claims except a
claim for attorney fees, an application for the award of attorneys
fees shall be filed within 60 days after entry of judgment if no
appeal has been filed.  If an appeal has been filed, the application
may be filed and acted upon in the trial court at any time after
entry of the judgment appealed from and in any case shall be filed
not later than 30 days after final disposition of the action.  An
application for attorney fees shall ordinarily be acted upon by the
justice or judge who rendered the judgment on the merits.

(emphasis added).{1}  The rule provides that the motion for attorney fees may
be filed at "any time" after entry of the judgment, and the rule does not
contain as a necessary condition that the Law Court remand the case or give
the Superior Court explicit directions in order for the Superior Court to
retain jurisdiction. 
	[¶4]  Although the motion for attorney fees should have been filed in
the trial court instead of the Law Court, William's argument exalts form over
substance.  William knew that attorney fees were being sought for the appeal
before disposition of the appeal in the Law Court, and the record reflects no
objection to the filing of the motion in the Law Court.  Both parties
understood that Jacqueline would seek an award of attorney fees in the
Superior Court after the appeal had run its course.  Moreover, Jacqueline
timely filed her motion because Rule 54(b)(3), in direct contrast to the local
federal rule, plainly states that filing before the disposition of the appeal is
allowable.  Finally, and most importantly, William has never argued in the
alternative that the amount sought was unreasonable.  We view the improper
filing of the motion in the Law Court as a minor procedural irregularity in
the particular circumstances of this case.  Because all parties had notice that
attorney fees were being sought for the appeal, and no harm exists by
treating the filing in the Law Court as cognizable in the Superior Court,
attorney fees in this case properly were awarded.
	The entry is:
			

									Judgment affirmed.
                                                               

Attorney for plaintiff:

Edward S. David, Esq.
Joyce, Dumas, David & Hanstein, P.A.
P O Box 31
Farmington, ME 04938

Attorneys for defendant:

Burton G. Shiro, Esq.
Charles Reeves, Esq.
Shiro & Shiro
86 Silver Street
Waterville, ME 04901

FOOTNOTES******************************** {1} The Advisory Committee note states in part that "[i]f there is an appeal, the application may be filed at any time between entry of judgment and 30 days after final disposition of the case, which ordinarily will be the entry of judgment in the lower court after receipt of the mandate . . . Rule 54(b)(3) is similar to Rule 32 of the Local Rules of the United States District Court for the District of Maine." See Me. Rptr. 636-644 A.2d XXXII. United States District Court Local Rule 32 states: An application for attorneys' fees in those cases in which fees have been contracted for or in any case in which no notice of appeal has been filed shall be filed within 60 days of entry of judgment. An application for fees in all other cases shall be filed within 30 days of the disposition of the appeal. A claim for fees filed before the final disposition of any appeal shall have no effect and a new application must be filed within the prescribed time as described herein. The Court will not act on any application that is untimely filed.