Callen and Callen

"[I]f a court considers a party’s objective reasonableness in pursuing settlement as a basis to award a discretionary attorney fee, it must make that assessment ‘in the light of the parties’ circumstances and knowledge at the time the settlement was tendered and rejected and not by some post hoc reference to the result actually obtained." Erwin v. Tetreault, 155 Or App 205, 214, (1998).

Wife appealed, and assigned error to, the trial court’s decision to provide a discretionary award for attorney fees and costs to Husband based on the decision that the Wife was not objectively reasonable in settlement negotiations. On appeal, the Wife argued that there was no evidence she unreasonably extended litigation. In response, the Husband argued that the trial court did not abuse its discretion because the award was the same amount of monthly spousal support offered in settlement. “[I]f a court considers a party’s objective reasonableness in pursuing settlement as a basis to award a discretionary attorney fee, it must make that assessment ‘in the light of the parties’ circumstances and knowledge at the time the settlement was tendered and rejected and not by some post hoc reference to the result actually obtained.” Erwin v. Tetreault, 155 Or App 205, 214, 964 P2d 277 (1998) (emphasis added). Because the trial court made a discretionary award for attorney fees and costs to Husband, the Court held that the trial court improperly relied on post hoc reasoning to conclude that Wife acted unreasonable in settlement negotiations. Reversed.