Hough v. Hough

2004 OK 45, 92 P.3d 695, 75 O.B.A.J. 1619, 2004 Okla. LEXIS 48, 2004 WL 1251980

• Court: Supreme Court of Oklahoma
• Decided: June 8, 2004
• Docket: 96,862
• Status: Published

Opinions

LAVENDER, J.

T1 The issue in the present cause is whether the trial court abused its discretion in determining that its order requiring Husband to pay the fees and costs of the special master and the order awarding a judicial lien to special master to secure such payment, were intended to provide support for the wife and thus, non-dischargeable in bankruptcy. We hold that the trial court did not abuse its discretion in making such determinations in this case and the COCA erred in vacating the portion of the trial court's order denominating the special master's fees as support for the wife and the portion of the order providing the judicial lien is non-dischargeable.

F

FACTS AND PROCEDURAL HISTORY

1 2 Husband filed for divorce from Wife on February 12, 1997. This case involves a complicated marital estate, which included the parties' co-ownership of two businesses (A-C Air and A-C Rentals, Inc.¹) and 44 rental properties, but Husband maintained exclusive control over the businesses, properties and income therefrom. Wife was primarily a homemaker and mother of two daughters during the 16-year marriage, while Husband operated the businesses.

13 Evidence reflects that throughout the course of this litigation, Husband was generally uncooperative in discovery and in compliance with the trial court's orders"² he intentionally misused and/or dissipated joint business funds ³, and that he provided incomplete, false and/or misleading information to the court concerning his true income ⁴ and/or the value of the two businesses in an apparent attempt to decrease his support obligation for his wife and children.

" 4 Given Husband's misconduct, Wife filed a motion to appoint a special master "to oversee all matters relating to the marital estate of the parties ... to determine the value of the marital estate, to conduct discovery regarding the estate, to control the Husband's ability to further dissipate the estate, to determine the Husband's prior dissipation of the marital assets and all other such matters regarding the estate."⁵ Wife's motion specifically requested the need for a special master, who would be both an attorney and certified public accountant, given the "diverse nature of the marital estate⁶ and noted such an appointment would spare the parties "considerable time and expense of hiring two experts for the same purpose."} Wife proposed the appointment of attorney/C.P.A. Ken Klingenberg to serve as special master, with such fees and costs of the special master to be paid by Husband. Husband objected to the appointment of a special master "as being outside the scope of any Statutory authority and there being no case law for same." ⁷

T5 The trial court ultimately entered the following Order: |

[Alppointment of a special master will be of benefit to the Court in matters relating to discovery, valuation and preservation of the marital estate ... [and such special master] shall have control of all matters relating to discovery, valuation and preservation of the marital estate (including the two businesses); shall control Plaintiffs ability to expend the marital estate and to determine the Plaintiff's prior expenditures and/or depletion of the marital assets; and shall control all other matters regarding the marital estate. Said fees and costs shall be paid by the [Husband] from the marital estate." ⁸

Husband thereafter filed his Motion to Discharge Special Master⁹ on March 12, 1999, which the trial court subsequently denied. Husband continued his quest for discharge of the special master with the filing of his Application to Assume Original Jurisdiction and Petition for Writ of Mandamus and Prohibition with this Court, which was unanimously denied on July 12, 1999.¹⁰

[6 The parties' divorce proceedings ended in settlement on September 8, 2000, with the issue of attorney fees and costs expressly reserved in the Consent Decree of Divorce. Special master thereafter filed his Application for Attorneys Fees on September 15, 2000, seeking fees and costs in the amount of $43,404.98. Husband reiterated his objections to special master's Application for payment of fees and costs, arguing that "the initial referral to a special master was ultra vires in that there was no good cause for the appointment," the trial court's order granting the special master authority to conduct discovery was improper, vague and overly broad, and the fee was excessive. During the pendency of the trial court's consideration of the reserved issues of fees and costs including those of the special master, Husband filed his Chapter 13 Bankruptcy Petition in the U.S. Bankruptey Court in March, 2001.¹¹ Special master filed his Amended Application for Payment of Attorney's Fees with the trial court on August 27, 2001, seeking additional fees since the filing of the original Application for a total fees and costs of the special master of $48,703.40.

T7 On September 4, 2001, the trial court granted special master's Application for Payment of Attorney's Fees and approved total payment of fees and costs in the amount of $48,703.40, and further granted special master a judicial lien in that amount over all property awarded to Husband from the marital estate, and determined such "judicial lien shall not be discharged by [Husband] in bankruptcy." Additionally, the trial court determined as follows:

[the initial order requiring the [Husband] to pay the fees and costs of the Special Master from the marital estate and the order awarding a judicial lien to the Special Master, were intended to provide support to the [Wife] ... by allowing her to use the money awarded to her for support instead of using the money for payment of the attorney's fees and costs of the Special Master.

Finally, the trial court concluded "[that substantially all efforts expended by the Special Master in ensuring compliance with discovery order, valuation and preservation of the marital estate, were necessitated by the [Husband's] hindrance, delay and general 'uncooperativeness' in this case; and that such an award as stated above is more than reasonable, considering the [Husband's] actions taken in this case."

T8 Husband appealed, arguing the trial court erred in thé following respécts: (a.) the trial court improperly delegated judicial authority to the special master; (b.) the trial court's order was vague and overbroad in its appointment of special master to conduct "blanket discovery" in a case that does not present complex issues of accounting or valuation; (c.) the trial court erred in awarding special master fees in this case because there is no statutory basis for such award; (d.) the order surpasses the relief prayed for by improperly granting a judicial lien against Husband's property and finding that fees were intended for support of Wife and determining that the fees are not dischargeable in bank-ruptey. COCA affirmed the order awarding special master fees and costs in the amount of $48,703.40, but vacated the portion of the order determining special master's fees as support for the Wife and further vacated the trial court's determination that the judicial lien was non-dischargeable in bankruptcy. Special master filed his Petition for Certiora-ri.¹²

H

THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN CHARACTERIZING SPECIAL MASTER'S FEE AWARD IN THE NATURE OF SPOUSAL SUPPORT AND DETER MINING THAT JUDICIAL LIEN GRANTED TO SECURE HUSBAND'S PAYMENT OF SUCH FEE NON-DISCHARGEABLE IN BANKRUPTCY

19 As a starting point, we note that an action for divorce, alimony and division of property such as this one is one of equitable cognizance and in reviewing a case of equitable cognizance, the judgment of the trial court will not be disturbed unless the trial court abused its discretion or unless the court's finding was clearly against the weight of the evidence. Merritt v. Merritt, 2003 OK 68, ¶ 7, 73 P.3d 878, 882, cert. denied, - U.S. -, 124 S.Ct. 820, 157 L.Ed.2d 697 (2003); Creech v. Creech, 1956 OK 10, 292 P.2d 376, 378; Tschauner v. Tschauner, 1952 OK 230, 245 P.2d 448. In this case, the COCA concluded that the trial court abused its discretion in its determination that its Order requiring Husband's payment of special master's fee was "intended to provide support to [Wife] and ordering that the judicial lien (granted to secure Husband's payment of special master's fees) shall not be discharged in Husband's bankruptcy. The COCA based its determination on the unsupported basis that "special master's fees and costs are not support for Wife. The fees were not paid to Wife for her use." The COCA further reasoned that 12 O.S. § 619¹³ does not provide that a referee's compensation be intended to support a party in a divorce action." - Finally, the COCA concluded "[the trial court has no judicial authority to declare the judicial lien or special master's fees non-dischargeable in bankruptey. This determination is for the bankruptey court."

110 We disagree with the COCA's conclusions. Consistent with and pursuant to the exceptions to discharge section of the U.S. Bankruptcy Code, 11 U.S.C. § 528(a)(5) (2000) ¹⁴, Oklahoma courts recognize that an award in the nature of alimony, maintenance or support of the spouse or child may not be discharged in bankruptcy. Battles v. Battles, 1952 OK 2, 239 P.2d 794; Owens v. Owens, 1995 OK CIV APP 17, 897 P.2d 1145 (Released for publication by Order of the Supreme Court of Oklahoma). Oklahoma state courts have exercised their judicial authority in divorce actions to determine whether the nature of an obligation arising out of a divoree is intended for support and maintenance of the spouse and therefore, may not be discharged in bankruptcy as opposed to dischargeable property division. Seq, eg., Battles, 239 P.2d at 796 (holding obligation arising out of a contract between husband and wife was substantially for maintenance and support of wife and therefore not discharged by husband's bankruptcy); Turman v. Turman, 1968 OK 33, 433 P.2d 488 (holding court-decreed obligation to pay attorneys' fees is in the same category as the obligation to pay alimony); Johnson v. Johnson, 1969 OK 142, 460 P.2d 954 (holding the purpose behind the divorce decree award to wife was to provide for her support and maintenance and is therefore, non-dischargeable in bank-ruptey even though the decree did not expressly designate the award as in the nature of support); Davis v. Davis, 1979 OK 40, 593 P.2d 88 (holding state law governs the determination whether a decreeimposed obligation to pay a jointly incurred marital debt was in the nature of non-dischargeable spousal support or dischargeable property division); Owens, 897 P.2d at 1147 (holding divorce-decree imposed obligation to pay two mortgages on the parties' jointly held real property is in the nature of support and non-dischargeable in bankruptcy). While we ree-ognize there is federal case law, which provides the determination of whether an obligation arising out of a divorcee settlement is in the nature of alimony, maintenance or support is a matter of federal bankruptcy law, see, e.g., Sylvester v. Sylvester, 865 F.2d 1164, 1166 (10th Cir.1989), our state courts have concurrent jurisdiction to determine this question. See Davis, 593 P.2d at 90; Owens, 897 P.2d at 1147; Riedel v. Riedel, 1992 OK CIV APP 166, 844 P.2d 184, 186; see also In re Franklin, 179 BR. 913, 920 (Bankr.E.D.Cal.1995) (providing the general rule is that state and federal courts have concurrent jurisdiction to decide the issue whether a divorce-based debt is in the nature of non-dischargeable alimony or support). Additionally, federal courts look to state law for guidance in determining whether a particular obligation arising out of a divorce action is a non-dischargeable obligation in the nature of alimony, maintenance or support. See In re Lane, 147 B.R. 784, 786 (Bankr.N.D.Okla.1992) (listing seven factors to be considered, the first of such factors being how the state court labeled the award). In this case, special master asserts that the Bankruptey Court requested the trial court's determination as to whether Husband's obligation to pay special master's fees and costs was in the nature of support and therefore, non-dischargeable. Although we cannot confirm the veracity of special master's assertion because of the absence of evidence in the record regarding the Bankruptey Court proceedings, we note Husband does not dispute this assertion. - However, even if the Bank-ruptey Court had not specifically requested the trial court's conclusions in this regard, we hold it was nonetheless proper for the trial court to make such a determination in this case that Husband's obligation arising out of the divorce action to pay the fees and costs of special master was in the nature of support and non-dischargeable in bankruptcy.

{11 Turman v. Turman and Owens v. Owens further clearly demonstrate there is no requirement that the payments pursuant to an award arising out of an Oklahoma divorce action be paid directly to the spouse in order to constitute an obligation in the nature of alimony, maintenance or support. In Turman, the obligation deemed in the nature of alimony was not to be paid directly to the former spouse, but rather, directly to her attorney for fees for legal services in representing the former spouse in the subject divorce action she instituted. Turman, 438 P.2d at 490. The obligation in: Owens, which was determined there to be in the nature of support was the husband's divorce-decree imposed obligation to pay two mortgages on the parties' jointly held real property including the marital home. Owens, 897 P.2d at 1147. In both Turman and Owens, while the former spouse in each respective case was the recipient of the benefit of the award in that she was spared the burden of having to pay a debt arising out of a divorcee, it was a third-party, namely the former spouse's attorney in Turman and the mortgagee in Owens, which actually received direct payment. We further note the reasoning in Turman v. Turman is notably applicable in this instance. In Turman, we recognized "the necessity of the services of [the former spouse's] attorney, and that the provisions for payment for said services is a necessary cost, or expense, in an action for divorce and alimony, and to Insure ... the 'efficient preparation' and 'prosecution or defense of such an action'" Turman, 438 P.2d at 490 (citations omitted). Finally, we determined that "the obligation to pay the attorney fee assessed against the bankrupt for such services is an 'accessory' to the alimony and 'follow(s) the nature of the liability' therefor, just as truly as do the costs of the action." Id. (quoting Smith v. Smith, (D.C., W.D., N.Y.) 7 F.Supp. 490, 491). In this case, the record is clear the trial court's appointment of a special master was necessitated by the recalcitrant actions of Husband (in dissipating marital assets and his defiant, uncooperative discovery tactics) and by the complex nature of the marital estate. The trial court expressly provided in its order of September 4, 2001, that the order requiring Husband to pay special master's fees and costs and the judicial lien granted to special master over Husband's property to secure such payment were intended to provide support to the [Wife] "by allowing her to use the money awarded to her for support instead of using the money for payment of the attorney's fees and costs of the special master." Given the complexities of the accounting matters of the case and the particular need for special master's control over the marital estate to prevent Husband's dissipation thereof, the necessity of the services of the special master in this case was no less compelling than the necessity of the services of the former spouse's attorney in the divoree at issue in Turman. Further, just as the attorneys' fee in Turman was deemed an accessory to alimony, the obligation to pay the special master's fees and costs assessed against the bankrupt Husband for such services in this case is likewise akin to an accessory to the alimony and follows the nature of the liability therefor. Therefore, the COCA erred in its determination that because special master's fees "were not paid to Wife for her use," they may not be categorized as in the nature of support. We hold the trial court properly exercised its judicial discretion in its determination that its order requiring Husband to pay special master's fees and costs from the marital estate and the order awarding a judicial lien to special master were intended to provide support to Wife and therefore, non-dischargeable in Husband's bankruptcy.

III

SPECIAL MASTER'S MOTION FOR APPEAL-RELATED ATTORNEY'S FEES

{$12 Special master filed his "Motion for Appellate Attorney's Fees" pursuant to 12 0.8. § 696.4(C), such motion having been separately identified and contained within his Answer Brief on appeal. In addition to citation to 20 0.8. § 15.1¹⁵ and one COCA case construing $ 15.1, special master additionally argues "compelling and overriding equitable considerations created by Husband's delay, hindrance and general uncooperativeness" justifies the award of appeal-related attorney's fees to special master in this case.

%13 The general rule is "[alppeal-related attorney fees are recoverable if statutory authority exists for their award in the trial court." Casey v. Casey, 2002 OK 70, ¶ 26, 58 P.3d 763, 772 (footnotes omitted). This case presents a unique question concerning a non-party's quest for appeal-related attorney's fees. We are unaware of express statutory authority for the recovery of a special master's attorney fees. However, statutory authority exists for the award of "compensation [to referees] for their services as the court may deem just and proper, which shall be taxed as part of the costs in the case." 12 0.S. § 619 (emphasis added).¹⁶ Further, § 619 has been interpreted to apply to compensation of special masters. Oklahoma Oil & Gas Exploration Drilling Program v. W.M.A. Corp., 1994 OK CIV APP 11, 877 P.2d 605, 612.

{14 In this case, the trial court ordered Husband to pay the fees and costs of special master and the COCA affirmed this award pursuant to 12 0.8. § 619. While we agree with the lower courts' determination that special master was entitled to recover fees and costs as compensation for his services in accordance with § 619, we disagree with the COCA's characterization of § 619 as statutory authority for an attorney fees award. Since § 619 does not authorize an attorney fees award in the trial court, it follows that 12 0.8. § 619 is likewise an improper basis for special master's recovery of appeal-related attorney fees.

T15 Special master seeks recovery of appeal-related attorney fees pursuant to 20 0.8. § 15.1, which permits "the prevailing party [to] petition the court for an additional attorney fee for the cost of the appeal." We have construed this statute to permit the recovery of appeal-related attorney fees against an appealing party bringing a "patently frivolous appeal," which is an appeal with "absolutely no legitimate legal or factual basis." TRW/Reda Pump v. Brewington, 1992 OK 31, 829 P.2d 15, 22. Based upon our review of the record, it cannot be concluded that Husband's appeal lacked any legitimate legal or factual basis, although Husband was ultimately unsuccessful. Since Husband's appeal cannot be characterized as patently frivolous, special master is therefore not entitled to recovery of his appeal-related attorney fees pursuant to 20 0.8. § 15.1.

116 Finally, to the extent special master's assertion of "compelling and overriding equitable considerations" equates to a demand for the balancing of judicial equities as between special master and Husband, special master cites no authority in support of the application of such a balancing of judicial equities test as between a non-party special master and a party to an underlying divorce action in support of recovery of appeal-related attorney fees.¹⁷ A proposition which is unsupported by citation to authority will not be considered on appeal. Witt v. Westheimer, 1988 OK 249, 79 P.2d 250; Mid-Continent Cas. Co. v. Jenkins, 1967 OK 54, 431 P.2d 349; see Vernor v. Poorman, 1916 OK 608, 158 P. 615 (providing "attorneys who present cases here have no right to place the burden upon this court and consume their time in a laborious research for authorities to support their argument."). In light of these authorities, special master's Motion for Appeal-Related Attorney's Fees is denied.

IV

SUMMARY

T 17 In sum, we hold the trial court did not abuse its discretion in characterizing the obligation arising out of this divorce action that Husband pay special master's fees and costs and judicial lien over Husband's property granted to special master to secure payment of such fees and costs as in the nature of support for the Wife and therefore non-dis-chargeable in Husband's bankruptcy and the COCA erred in determining the trial court lacked judicial authority to make such a determination in this case. The trial court's September 4, 2001 order awarding special master fees and costs in the amount of $48,708.40 is affirmed in its entirety.

18 Upon certiorari previously granted,

THE COURT OF CIVIL APPEALS OPINION IS VACATED; JUDGMENT OF THE TRIAL COURT IS AFFIRMED.

119 WATT, C.J., HODGES, HARGRAVE, KAUGER, BOUDREAU, WINCHESTER and EDMONDSON, JJ., concur. 1 20 OPALA, V.C.J., concurs in part; dissents in part.

1 . Husband disputed the characterization of this business entity as marital property, as he claimed it was created during the parties' previous separation/divorce proceeding, which was dismissed in 1996 upon the parties' reconciliation. Husband argued that at the time AC Rentals, Inc. was created, two trusts were created for the parties' respective separate benefit, which holds all the stock for AC Rentals, Inc. with Husband owning 55% of the shares and Wife owning 45% of the shares. Ultimately, in its March 25, 1999 Order, the trial court concluded that "the disputed property (the corporate stock placed in the respective irrevocable trusts of the parties) is a part of the marital estate and subject to equitable division."

2 . The record contains numerous applications for contempt of court filed by Wife for Husband's failure to comply with court orders, ie., failure to pay temporary support alimony and child support and other court-ordered expenses for the month of June, 1998, failure to pay special master's fees and parenting coordinator's fees, and failure to pay the lump sum property division payment of $75,000 pursuant to the Consent Decree of Divorce. Special master also applied for indirect contempt citation for Husband's refusal to produce documents in response to special master's discovery requests, which resulted in the trial court's issuance of a February, 8, 2000 Citation for Indirect Contempt of Court for Husband's knowing, wilful, and intentional failure to comply with the trial court's August 27, 1999 order compelling production of such documents. I

3 . The record reflects that throughout the divorce proceedings, Husband demonstrated a pattern of excessive spending with a failure to document and/or. explain such expenditures. Additionally, evidence was presented regarding Husband's wire transfers in excess of $47,000 to various accounts including accounts in Venezuela, South America purportedly to pay gambling debts. Additionally, Husband failed to disclose the existence of a safe deposit box containing $21,000 cash, which was ultimately discovered through investigative efforts of the special master and seized pursuant to the trial court's emergency order of December 21, 1999.

4 . - One such piece of evidence included a residential loan application of June 4, 1998 (attached as an exhibit to Wife's September 16, 1998 Amended Motion to Modify Temporary Order as to Temporary Support), upon which Husband was listed as a co-borrower, wherein he indicated his income from A-C Air was $5,000 per month and that his net income from A-C Rentals, Inc. was $13,000 for a total of $18,000 per month. Husband's support obligation had previously been determined on the basis of income he reported to the court in April, 1997, and although that income amount used by the court in making its initial determination is unclear from the record, the initial support alimony/child support award was $1,800 per month. In Husband's handwritten pro se Motion to Modify Temporary Order of October 12, 1999, while he did not dispute the income amount he listed in the residential loan application (certified as true and correct by Husband's signature thereon as of June 4, 1998), he attacked such evidence as "primitive technique of determining income for child support purposes," arguing that his actual monthly income at the time was $2,164. The trial court modified the temporary support amount to $2,880 per month in light of the evidence presented concerning Husband's true income and also additional evidence presented concerning Husband's recent major expenditures (such as $2,369.00 for a tanning bed, $1,653.86 to "Victoria's Secret," and $8,279.00 to Ballard Ford on behalf of Husband's girlfriend), which demonstrated Husband's ability to pay the additional amount requested by Wife.

5 . Wife's Amended Motion to Modify Temporary Order as to Temporary Support and Visitation Schedule and for Temporary Attorneys Fees and Suit Money, September 16, 1998, p. 14 145.

6 . Id. at 1 46.

7 . Plaintiff's Response to Appointment of Special Master, September 29, 1998, p. 1.

8 . The parties to the appeal refer to this Order [of appointment of the special master] as the Order of September 21, 1998, but we note this Order was actually file-stamped on December 14, 1998. For purposes of clarity, we will simply refer to this order as the order of appointment. See Order of Appointment p. 2, 15. This Order provided for the appointment of Ken Klingenberg as special master unless Husband provided written objection within five (5) days of the Order. Husband filed his objection with his September 29, 1998 Response to Appointment of Special Master, and, without waiving his general objection to the appointment of a special master in the case, he proposed the appointment of an alternate special master, Virginia Meadows, President/CEO of Washita State Bank. Wife objected to the alternate master, citing lack of expertise and conflict of interest reasons due to Husband's longstanding and ongoing business relationship with Washita State Bank. In its Order of October 1, 1998, the trial court formally appointed Ken Klingenberg and rejected Husband's alternate special master due to an appearance of conflict of interest.

9 . Husband's Motion asserted the appointment of a special master in this case was inappropriate, as "this is a relatively simple divorce case that is being completely blown out of proportion." Husband additionally complained that special master appeared to be taking on the role as an advocate for the wife, given special master's position that the AC Rentals, Inc. business constituted marital property. See Husband's Motion to Discharge Special Master, p. 11.

10 . - Oklahoma Supreme Court case no. 93,101.

11 . - Special master's Answer Brief and Petition for Certiorari contain specific information concerning the Bankruptcy proceeding including the assertion that special master sought relief from the automatic stay, which was granted by the Bankruptcy Court on July 23, 2001, Additionally, special master asserts "[the Bankruptcy Court lifted the automatic stay so that the trial court could decide the interest of the special master in the divorce." In his Petition for Certiorari, special master criticizes the COCA in this case for "ignor[ing] that the Bankruptcy Court expressly asked the trial court to make such a determination [that the special master's fees were in the nature of support and not dischargeable in bankruptcy]." Husband's brief contains merely an acknowledgment that he filed his Chapter 13 Bankruptcy Petition on March 7, 2001 and that "events in the bankruptcy court lie outside the record." While we note the record is silent concerning the bankruptcy, we also note Husband did not dispute any of special master's assertions regarding the bankruptcy proceedings.

12 . Husband did not file a response to special master's Petition for Certiorari, nor has he requested certiorari review of the issues he lost before the COCA. Therefore, his failed challenges regarding the propriety of the appointment of the special master, the scope of authority and/or conduct of the special master in the case, the scope of the relief granted in the trial court's order in granting the judicial lien, and the award of the special master's fees and costs taxed against Husband have not been properly preserved for review and therefore, will not be considered by us on certiorari. See Hough v. Leonard, 1993 OK 112, 867 P.2d 438; May-Li Barki, M.D., Inc. v. Liberty Bank & Trust, Co., 1999 OK 87, ¶ 7, 20 P.3d 135, 143 (Opala, J., Supplemental Opinion).

13 . 12 0.5.2001 § 619 provides as follows: "The referees shall be allowed such compensation for their services as the court may deem just and proper, which shall be taxed as part of the costs in the case." Id. Reference of accounting matters to a special master or referee is specifically authorized by statute. 12 O.S. § 613; see State ex rel. Smith v. District Court of Osage County, 1941 OK 128, 112 P.2d 381 (1941). We have held that "special judges may be used in contested matrimonial disputes as referees to aid the court with resolution of complex valuation or accounting issues." Lee v. Hester, 1982 OK 30, 642 P.2d 243, 245. The COCA has also held that compensation of special masters shall also be taxed as costs pursuant to § 619 and that the trial court may award and tax costs as in its discretion it determines is 'right and equitable.' " Oklahoma Oil & Gas Exploration Drilling Program v. W.M.A. Corp., 1994 OK CIV APP 11, 877 P.2d 605, 612.

14 . 11 U.S.C. § 523.(a) (2000) provides in pertinent part as follows: "A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt-

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(5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order of a court of record, determination made in accordance with State or territorial law by a governmental unit, or property settlement agreement...."

15 . 20 0.8. § 15.1. Appeals-Additional attorney fees

"On any appeal to the Supreme Court, the prevailing party may petition the court for an additional attorney fee for the cost of the appeal. In the event the Supreme Court or its designee finds that the appeal is without merit, any additional fee may be taxed as costs."

16 . See supra note 13.

17 . We recognize the existence of the "balancing of judicial equities" test in the context of an award of counsel fees to a litigant in divorce or subsequent related actions pursuant to 43 O.S. § 110. See Casey v. Casey, 2002 OK 70, 126, 58 P.3d 763, 772. However, special master does not cite § 110 in support of his quest for appeal-related attorney fees here. We have recently held 43 0.S$.2001 § 110(D) "only gives a trial court discretionary equitable authority to award attorney fees for or against 'the two original parties to the divorce case, i.e., the divorced spouses, based on a judicial balancing of the equities between those two parties." - Fulsom v. Fulsom, 2003 OK 96, ¶ 1, 81 P.3d 652, 654 (emphasis added). Section 110 was amended in 2002 and 2003. Subsection 110(D) is now found at § 110(B).