Attorney Fees on Appeal Case In Idaho
in Tolman v. Tolman, 93 Idaho 374, 461 P.2d 433 (1968) the wife had appealed a number of community property issues to the Idaho Supreme Court.
In its order remanding the case, the Court did not address the issue of attorney fees.
On remand, the wife requested that the trial court award her $ 500 in attorney fees for the previous appeal. the trial court refused, and the wife again appealed.
The Idaho Supreme Court explained:
On remand the trial judge refused the wife's motion . . . apparently on the assumption that such an award was barred because the issue of attorney fees was outside the mandate which it had received from this Court.
As we have said herein, the trial court, on remand, as a general rule may not consider issues precluded by the explicit provisions of this Court's mandate.
But a wife has a right to have her interests presented and protected and I.C. 32-704 contemplates that the husband must, if possible, help to bear the expense of divorce litigation.
Unless, therefore, the order of remand barred the trial court from considering the question of attorney fees, an allowance should have been made for such a purpose on appellant's motion. Id. at 376, 461 P.2d at 435.
The Court went on to explain that the trial court had continuing jurisdiction on remand to consider a request for attorney fees for the previous appeal pursuant to I.C. 32-704 because the divorce action was still pending.
Because the district court's order in the instant case did not address he issue of attorney fees on appeal, the magistrate was not precluded from considering a request for attorney fees pursuant to I.C. 32-704(3) on remand.
It has been the policy of the Idaho Supreme Court to leave to the trial court, under the authority of I.C. 32-704, the making and enforcing of all orders necessary to provide a spouse with the means of prosecuting or defending an appeal. Wilson v. Wilson, 131 Idaho 533, 537; 960 P.2d 1262, 1266 (1998); Brashear v. Brashear, 71 Idaho 158, 165, 228 P.2d 243, 247 (1951).