King v. King

OP ALA, J.,

dissenting.

¶ 1 The court’s opinion reaches for decision Mother’s post-appeal plea for an appeal-related attorney’s fee but denies Father’s certiorari quest for corrective relief, which leaves undisturbed the Court of Civil Appeals’ [COCA] reversal of Father’s nisi prius change-of-custody victory. The court holds today (a) a parent demonstrating at nisi prius good cause for withholding visitation is entitled by the terms of 43 O.S.Supp.2003 § 112(D)(2)1 to an appeal-related counsel-fee award; (b) Mother is to be declared the prevailing party in the trial court because there is record proof on appeal of her good cause for denying Father’s visitation and sufficient evidence to rebut any argument that a change of custody was in the child’s best interest; and (c) even if there were no statutory authority for a prevailing-party award to Mother, a balancing of the equities also would support today’s appeal-related counsel-fee award to her. The court opines the *583hours billed for Mother’s legal services appear reasonable and remands the cause for the sole purpose of determining the amount of allowable appeal-related counsel fee. Its pronouncement does not address Mother’s motion for court costs in the appellate courts. I dissent from the court’s opinion.

¶2 When, as here, there is neither an earlier nisi prius counsel-fee award nor one directed to be made by COCA, a party’s quest for an appeal-related attorney’s fee must never be allowed as a permissible post-appeal addendum to the review process, but should rather be regarded as pressing for supplemental recovery. To put it in more simple terms, Mother’s post-appeal fee quest is plainly an attempt to enlarge her recovery beyond that granted by both the trial court and COCA. Mother sought no certiorari review. More importantly, her plea for an enlarged supplemental post-appeal recovery calls for an adversarial evi-dentiary hearing to determine whether, upon COCA’s reversal of Father’s trial-court victory, Mother’s appellate success may be brought within the purview of § 112(D)(2). Because there was here no antecedent COCA-affirmed counsel-fee award for trial-court services in a proceeding in which Father stood declared a vanquished litigant, this court should not today decide Mother’s entitlement to a fee award by making initial findings of fact in a fact-intensive dispute never before pressed for nisi prius resolution. Due process requires here a post-remand evidentiary hearing at which Father would be afforded full opportunity to defend against the imposition of counsel fee by showing that the invoked statute does not apply in the factual context of the litigation actually waged. No less than this opportunity — one never afforded him before — is Father’s constitutional due.

¶ 3 If I were writing for the court I would retransfer to COCA Mother’s motion for an appeal-related attorney’s fee. As her plea for post-appeal relief, that motion was timely filed and correctly addressed for COCA’s consideration. I would also direct that before proceeding to consider the fee quest, COCA make a referral of the controversy to the trial judge, to sit as a special master, for a decision on several unresolved fact and law issues which could then be reviewed (by COCA) under a de novo standard. In the alternative, I would declare Mother’s fee motion to be the functional equivalent of her timely rehearing petition which extends COCA’s power over the case until the rehearing’s disposition and would treat Father’s certiorari petition as curable for its premature filing. My solution, which would allow the parties to litigate their fee controversy in a forum best equipped to afford them an adversarial evidentiary hearing, is not only inherently fair but also required by the minimum standards of federal and state due process.

I

MOTHER’S APPEAL-RELATED FEE ENTITLEMENT SHOULD NOT BE DECIDED BY THIS COURT

A.

In The Absence Of A Timely Certiorari Petition This Court Is Without Cognizance To Address Mother’s Counsel-Fee Quest

¶ 4 One’s entitlement to a counsel fee as prevailing party gives a litigant an added element of postjudgment recovery. The victorious party’s statutorily authorized fee award “creates and enlarges substantive rights” in an action.2 Any fee recovery beyond that which stands expressly granted by COCA (or by the trial court) cannot be enhanced by the Supreme Court without its antecedent assumption of certiorari jurisdiction upon the fee seeker’s petition.3

*584¶ 5 The Hough v. Leonard4 analysis is not invocable to confer here cognizance upon this court without Mother’s timely certiorari petition. Hough saves for sua sponte review — one that can be conducted sans certio-rari quest — only those issues which, though properly raised and briefed on appeal, were left unaddressed by COCA.5 Hough does not teach that a certiorari party may, without pressing its own counter-petition, seek to enlarge its rights to any relief not granted by COCA. A certiorari party who brings no counter-petition of its own stands in a posture restricted to defending against loss of relief secured on appeal.6

¶ 6 Mother was the vanquished litigant at nisi prius where custody of her child was transferred to the husband. While both parties’ district-court paperwork requested a trial-related attorney’s fee,7 neither litigant pressed for this relief either at the end of the there-conducted modification hearings or before COCA’s pronouncement. The nisi prius order tendered for review on appeal is entirely silent on the fee issue. Neither did either party press during the appeal for an appeal-related counsel fee. That issue was first raised by Mother’s post-appeal motion addressed to COCA. Although Mother may indeed be entitled to an appeal-related counsel fee, in the absence of a timely certiorari petition of her own, this court is without cognizance8 to grant her relief not won in COCA’s opinion.9

¶ 7 In short, in the absence of certiorari cognizance conferred by her timely petition, I would not grant here to Mother a recovery beyond that she won from COCA.

B.

The Nature Of Mother’s Post-Appeal Relief Plea Calls Not For An Addendum But For An Enlarged Supplemental Recovery

¶8 Recovery that amounts to a mere post-appeal addendum is to be distinguished from that which requires initial resolution *585of one’s right to recover. Addendum means that which “should be added.”10 It is based on the principle that if a party is entitled to a counsel fee as prevailing party in the trial court, it is also entitled to an attorney’s fee on appeal.11 When COCA affirms a nisi prius fee award, the victor’s recovery for appeal-related services should be regarded as a mere ex lege addendum that does not call for certiorari to secure in this court. The affirmance of the fee award ipso facto authorizes the requested appeal-related attorney’s fee to be added to the victor’s trial-court recovery.

¶ 9 Because there is here no underlying COCA or nisi prius counsel-fee award to Mother, her quest for an appeal-related attorney’s fee cannot be treated as a mere addendum. Instead, it must be regarded as one for an enlarged supplemental recovery — one that went judicially unresolved by being absent from appellate pleas for relief. This court is clearly without power to reach for decision a post-appeal quest for enhancement of one’s trial- and appellate-court recovery sans timely-conferred cer-tiorari cognizance.

¶ 10 Today’s analysis — which leads me to conclude the fee quest does not call for a mere post-appeal addendum but rather for enhanced supplemental recovery — raises a first-impression question. Were it not for a procedural alternative12 — beneficial to Mother — which would allow consideration of her plea for enlarged supplemental recovery, I would declare here that the distinction between addendum and supplemental recovery should be applied only prospectively13 and deny Mother’s post-appeal plea.

C.

The Court Allows A Counsel-fee Award By Making Initial Fact Findings And Without Affording Both Parties The Beneñt Of Due Process By A Nisi Prius Adversarial Evidentiary Hearing To Determine Whether Mother’s Fee Quest Meets The Standards Of 43 O.S.Supp.2003 § 112(D) (2). 14

¶ 11 Mother’s fee quest calls for an evi-dentiary hearing to determine if the trial-court proceeding may be brought within the purview of § 112(D)(2) — that is, whether Father’s conduct contributed to the scenario (which necessitated the re-adjudication of visitation) either by his neglect or willingness to *586expose the child to a molesting uncle. A hearing on that critical fee liability issue was never held in the trial court. There Father was the victorious party.

¶ 12 Appellate courts cannot make first-instance determinations of either law or fact.15 That is the trial court’s function in every ease.16 In the absence of a nisi prius declaration of Father’s status — qua vanquished litigant subject to imposition of a § 112(D)(2) fee award — the mandatory critical fee inquiry cannot be concluded by the Supreme Court’s initial fact findings.17 In sum, this court must not here exercise first-instance cognizance by determining Mother’s right to an enlargement of recovery as prevailing party. The issue of her entitlement was neither resolved at nisi prius nor determined by COCA on appeal.

¶ 13 Absent an antecedent nisi prius hearing on Mother’s fee quest, today’s decision denies to Father the opportunity to defend against his counsel-fee liability by showing that in the context of the waged forensic combat the invoked statute does not apply. Due process requires an orderly proceeding in which the parties are given “an opportunity to be heard, and to defend, enforce and protect their rights.”18 Father in this case is clearly entitled to be heard in a forum which may conduct an adversarial eviden-tiary hearing.19

¶ 14 This court should not determine Mother’s fee entitlement for yet another reason. Father’s response to Mother’s post-*587appeal fee quest vigorously urges that the fee provisions of the invoked statute do not apply to him.20 In effect, he argues that Mother’s fee plea can be reached for decision only in an adversarial evidentiary hearing. That fee calls for a fact-intensive inquiry. He presses an objection against appellate fee imposition based solely upon a nisi prius transcript. The fee liability clearly presents an issue no appellate court should initially decide.

D.

Unlike A Counsel-Fee Quest, Which Calls Here For Nisi Prius Adjudication, Taxation Of Court Costs Triggers Only Ministerial Process.

¶ 15 An attorney’s fee is a rubric different from court costs. A counsel-fee quest sought as an element of recovery triggers the adjudicative process. It requires an adversarial evidentiary hearing on the right of recovery21 as well as its amount.22 In contrast, costs are not part of recovery. A motion for court costs imposes on the court clerk the ministerial function of taxing ordinary costs without antecedent judicial action or a party’s request. When a COCA opinion is silent as to costs and there is no post-decisional order dealing with this item, costs are allowed “of course” (de cursu) by the appellate court clerk to the prevailing party.23

¶ 16 Because court costs are not a recovery component and can therefore be considered without a certiorari petition, I would dispose of Mother’s post-appeal quest for court costs by allowing two of the requested items (the cost deposit and court reporter’s transcript fee)24 and disallowing the remaining items (the fee for assembling the record and for copying and binding the appellate brief).25

II

PROCEDURAL ALTERNATIVES TO CERTIORARI ARE AVAILABLE HERE FOR DECIDING MOTHER’S COUNSEL-FEE QUEST

A.

Mother’s Motion For An Attorney’s Fee Should Be Retransferred To The COCA Division Before Which The Case Stood For Disposition Of Appeal — The Only Appellate Tribunal With Cognizance To Decide Her Timely-filed Counsel-Fee Quest

¶ 17 If I were writing for the court I would retransfer Mother’s counsel-fee quest for disposition by COCA. Mother’s plea should be deemed timely for COCA’s consideration because it is addressed to COCA and was filed within 20 days of the opinion’s filing.26 The transfer order would re-*588vest COCA with jurisdiction over the motion. I would accordingly direct that, before proceeding to consider the fee quest, COCA refer the controversy to the trial judge, to sit as a special master,27 to hold a hearing on the issue whether Mother is entitled by the terms of § 112(D)(2) to a counsel-fee award and, if that query be answered in the affirmative, to determine the amount to be allowed for services rendered in the appellate court. At the conclusion of the proceeding the special master should be directed to prepare a report with findings of fact, conclusions of law and a recommended disposition that would be subject to COCA’s review by a de novo standard.28

B.

Mother’s Motion For Post-Appeal Relief Should Be Treated As The Functional Equivalent Of A Timely Rehearing Petition

¶ 18 In the alternative, I would declare Mother’s motion for an appeal-related attorney’s fee, which was brought within 20 days of the opinion’s filing,29 as a functional equivalent of her petition for rehearing and make a nunc pro tunc transfer to the COCA division whence the case came.30 The jurisdiction over the appeal would remain vested in that COCA division until the timely rehearing’s disposition.31 Father’s petition for certiorari, which was brought one day earlier than the fee quest, should be treated as prematurely filed, but considered refiled by operation of law as of the time rehearing decision is reached.

¶ 19 In sum, because this court has no cognizance to entertain an enlargement of Mother’s appellate recovery sans her own timely certiorari petition and her quest for relief can be viewed as either a timely rehearing petition or motion for postdeci-sional relief from COCA, fairness requires that by a nunc pro tunc transfer Mother’s motion be referred for disposition by COCA.

Ill

THE DISSENTER’S RESPONSE TO THE COURT’S CRITIQUE

¶ 20 Appearing in a somewhat attenuated footnote form, the court’s attribution of in*589consistency between my dissent here and my concurrence in certain cited cases of yore is hollow in analytical profundity. Instead of attacking the dissenter’s message the critique obliquely targets the messenger’s voting pattern it views as discordant. This approach represents nowadays a dissent-chilling technique of choice.32 It aims to bring discredit upon the daring herald of disagreeable thought. Though indeed an effective weapon, the device nonetheless robs the court of that intellectual richness which nourishes jurisprudence fed by a variety of insights. If the author of the court’s opinion took the time to digest the authority on which reliance is placed, she would have doubtless discovered that the “inconsistent cases” are clearly distinguishable in procedural posture. All of them are free of the infirmities the dissent finds present in this case. In none of them was this court confronted, as it is here, by the absence of a timely-filed jurisdiction-conferring cer-tiorari petition that is of critical moment in this proceeding.

IY

SUMMARY

¶ 21 Because Mother’s counsel-fee quest seeks an enlarged supplemental recovery— rather than de cursu costs by a mere addendum to an already affirmed nisi prius or COCA fee award — this court has no power to declare here that she is entitled to an appeal-related attorney’s fee as prevailing party (in COCA) under the terms of § 112(D)(2) without being invested with certiorari cognizance by Mother’s own timely petition.

¶ 22 The invoked statute for imposition of counsel fee requires fact findings to be made upon an adversarial evidentiary inquiry which this court cannot make initially. Due process mandates that Father be heard in a forum in which an adversarial evidentia-ry hearing may be conducted.

¶23 There are two procedural alternatives to denial of Mother’s fee quest for want of her timely certiorari petition. These are not only inherently fair but also would preserve due process to both parties. Her post-opinion counsel-fee quest can (a) be retrans-ferred to COCA for disposition with directions to refer the factual dispute to the trial judge to sit as a special master for a decision on law and fact issues which would then be reviewed (by COCA) by a de novo standard or (b) be declared the functional equivalent of a rehearing petition for disposition by the COCA division before which the case stood on appeal.

. For the pertinent terms of 43 O.S.Supp.2003 § 112(D)(2), see infra note 14.

. Thomas v. Cumberland Operating Co., 1977 OK 164, 569 P.2d 974, 976-77.

. A timely petition for certiorari is one that has been filed with the Supreme Court Clerk within 20 days of the filing of the Court of Civil Appeals’ opinion. The pertinent terms of Rule 1.179(e), Supreme Court Rules, 12 O.S.2001, App. 1, are:

(e) Time to File Petition.
When no party seeks rehearing in the Court of Civil Appeals a petition will be deemed timely if filed with the clerk of the Supreme Court within twenty (20) days of the date the opin*584ion was filed by the Court of Civil Appeals. When a party sought rehearing a petition for certiorari will be deemed timely if filed with the clerk of the Supreme Court within twenty (20) days of the date the order of the Court of Civil Appeals is filed that has denied all timely filed rehearing petitions. The time to file petition for certiorari shall not be extended. A petition for certiorari will be deemed filed when mailed if it complies with Rule 1.4(c) and (e).

(emphasis added).

This court is duty-bound to inquire sua sponte into its own jurisdiction over any pending matter. Stites v. DUIT Const. Co., Inc., 1995 OK 69, 903 P.2d 293, 297 n. 10; State ex rel. Oklahoma Bar Ass'n v. Smolen, 1992 OK 116, 837 P.2d 894, 903 (Opala, C.J., concurring); Cate v. Archon Oil Co., Inc., 1985 OK 15, 695 P.2d 1352, 1356; Spain v. Kemell, 1983 OK 105, 672 P.2d 1162, 1164-1165; Pointer v. Hill, 1975 OK 73, 536 P.2d 358, 361.

. 1993 OK 112, 867 P.2d 438.

. Id. at ¶ 18, at 446.

. The law has never permitted one who has not timely appealed, counter- or cross-appealed, to advance for review any reversible error. State v. County Beverage License No. ABL-78-145, 1982 OK 114, ¶¶ 12-13, 652 P.2d 292, 294-95; May v. May, 1979 OK 82, ¶ 12, 596 P.2d 536, 540; Woolfolk v. Semrod, 1960 OK 98, ¶ 12, 351 P.2d 742, 745 (a successful party may, without a counter- or cross-appeal, argue before an appellate court only those errors which, if rectified, would support the correctness of the trial court's judgment); Holshouser v. Holshouser, 1933 OK 554, ¶ 0 syl.2, 166 Okl. 45, 26 P.2d 189 (parties who fail to appeal "can demand no relief from the appellate tribunal”); Sharum v. City of Muskogee, 1914 OK 191, ¶ 0 syl.1, 43 Okl. 22, 141 P. 22. As far back as 1915 we distinguished between relief that can be granted by motion and relief that must be sought by a counter-appeal. Bruner v. Eaton, 1926 OK 655, ¶ 0 syl., 121 Okl. 209, 249 P. 734; Spaulding v. Beidleman, 1915 OK 774, ¶ 0 syl., 49 Okl. 197, 152 P. 367.

. Father's motion for modification and Mother’s answer both requested an attorney's fee. The parties did not press for this recovery at the 14 January 2003 and 28 March 2003 hearings.

. Jurisdiction of an appellate tribunal is conferred either by timely petition in error or timely certiorari petition. Woolfolk, supra note 6 at 745.

. See, e.g., State ex rel. Dept. of Transportation v. Little, 2004 OK 74, ¶ 26, 100 P.3d 707, 721. In Little the trial court awarded relocation expenses to the landowners/condemnees. COCA remanded the cause for reduction of moving expenses in the nisi prius award. Although this court held that the reduction was improper, because landowners failed to file a timely certiorari petition, their recovery was reduced to the amount erroneously declared by COCA.

. The term "addendum” is defined as "a thing that is added or is to be added." WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 24 (1961). According to BLACK'S the term means "[s]omething to be added, esp. to a document; a supplement.” BLACK'S LAW DICTIONARY 38 (7th ed.1999).

. Where, as here, there is statutory authority to allow an attorney’s fee at the trial level, additional fees may be assessed for legal services rendered in an appellate court. Hough v. Hough, 2004 OK 45, ¶ 13, 92 P.3d 695, 702; Baptist Medical Center of Oklahoma, Inc. v. Aguirre, 1996 OK 133, ¶ 13, 930 P.2d 213, 219-20; Sisney v. Smalley, 1984 OK 70, ¶ 20, 690 P.2d 1048, 1051; Moses v. Hoebel, 1982 OK 26, ¶ 5, 646 P.2d 601, 603 (under the American rule that is followed in Oklahoma, attorney’s fees are not ordinarily allowed unless their recovery is authorized by statute or contract).

. For a discussion of the procedural alternatives to certiorari, see Part II infra.

. McDaneld v. Lynn Hickey Dodge, Inc., 1999 OK 30, ¶ 12, 979 P.2d 252, 257. Judicial policy determines whether, and to what extent, a new rule will operate retroactively. Griggs v. State ex rel. Oklahoma Dept. of Transp., 1985 OK 51, ¶ 11, 702 P.2d 1017, 1020. For extant jurisprudence giving purely prospective effect to the court’s pronouncement, see Hale v. Bd. of Cty. Com'rs of Seminole County, 1979 OK 158, ¶ 4, 603 P.2d 761, 764; Isbell v. State, Etc., 1979 OK 156, ¶ 1, 603 P.2d 758, 760-61 (Opala, J., concurring); Poafpybitty v. Skelly Oil Company, 1964 OK 162, ¶ 19, 394 P.2d 515, 520 (the court applied prospectively its pronouncement on whether errors of law may be saved for review by their inclusion in an unnecessary motion for new trial).

.The terms of 43 O.S.Supp.2003 § 112(D)(2) are:

D. 1. Except for good cause shown, a pattern of failure to allow court-ordered visitation may be determined to be contrary to the best interests of the child and as such may be grounds for modification of the child custody order.
2. For any action brought pursuant to the provisions of this section which the court determines to be contrary to the best interests of the child, the prevailing party shall be entitled to recover court costs, attorney fees and any other reasonable costs and expenses incurred with the action.

(emphasis added).

. It is not the function of this court to make first-instance determinations of fact or legal questions which have been properly presented to the trial court but left unresolved or which have been neither raised nor assessed at nisi prius. Evers v. FSF Overtake Associates, 2003 OK 53, ¶ 18, 77 P.3d 581, 587; Salazar v. City of Okla. City, 1999 OK 20, ¶ 15, 976 P.2d 1056, 1062; Bivins v. State of Okla. ex rel. Okla. Memorial Hosp., 1996 OK 5, ¶ 19, 917 P.2d 456, 464; Dyke v. St. Francis Hosp., Inc., 1993 OK 114, ¶ 11, 861 P.2d 295, 300; Davis v. Gwaltney, 1955 OK 362, ¶ 13, 291 P.2d 820, 824.

It is a familiar rule of the common law, respected in the Anglo-American system, that appellate courts will not make initial (original) findings of fact by a de novo review of factual matters that were before the trial court. Ohio v. Wyandotte Chems. Corp., 401 U.S. 493, 498, 91 S.Ct. 1005, 1009, 28 L.Ed.2d 256 (1971). Initial appellate factfinding deprives the process of a critical common-law ingredient which calls for judicial fact-findings to be drawn from living (viva voce) testimony. A trial judge has that opportunity but it is not available to an appellate court (from an examination of a cold record). The former may observe the demeanor and conduct of the witnesses as an invaluable aid for assessment of their credibility. In re Estate of Holcomb, 2002 OK 90, ¶ 8, 63 P.3d 9, 13.

. When necessary findings of fact and conclusions of law are absent from a record, the case must be remanded with directions that they be made by the trial court. Toxic Waste Impact Group, Inc. v. Leavitt, 1994 OK 148, ¶ 15, 890 P.2d 906, 913; Dyke, supra note 15 at ¶ 11 n. 13, at 300; Matter of Estate of Pope, 1990 OK 125, ¶ 2 n. 6, 808 P.2d 640, 642; Robert L. Wheeler, Inc. v. Scott, 1989 OK 106, ¶ 21, 777 P.2d 394, 399; Davis, supra note 15, at ¶ 13, at 824. There is some federal circuit jurisprudence which is criticized for transgressing that borderline. See, e.g., Pullman-Standard v. Swint, 456 U.S. 273, 291-92, 102 S.Ct. 1781, 1792, 72 L.Ed.2d 66 (1982), and Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714, 106 S.Ct. 1527, 1530, 89 L.Ed.2d 739 (1986), where the Court chided the circuit court for making its own factfindings on matters not reached by the district court rather than remanding the cause for further factfinding at first instance. In Pullman-Standard, the Court observed that:

"When an appellate court discerns that a district court has failed to make a finding because of an erroneous view of the law, the usual rule is that there should be a remand for further proceedings to permit the trial court to make the missing findings:
"[F]actfinding is the basic responsibility of district courts, rather than appellate courts, and ... the Court of Appeals should not have resolved in the first instance this factual dispute which had not been considered by the District Court.” DeMarco v. United States, 415 U.S. 449, 450, n., 94 S.Ct. 1185, 1186, n., 39 L.Ed.2d 501 (1974)

Id. at 291-92, at 1792.

. See supra notes 15 and 16.

. Federal constitutional jurisprudence teaches that an opportunity to be heard is an essential element of due process. Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 798, 103 S.Ct. 2706, 2711, 77 L.Ed.2d 180 (1983). As the Constitution inexorably commands, no one's rights may be adversely affected in the absence of due and timely notice that affords a full and fair opportunity to defend. Id.; Booth v. McKnight, 2003 OK 49, ¶¶ 18, 20, 70 P.3d 855, 862-63; Shamblin v. Beasley, 1998 OK 88, ¶ 12, 967 P.2d 1200, 1209.

. Id.

. First, he argues that it is the nisi prius court that has the authority to award counsel fees based on the statutory "best interests of the child” standard. Next, he claims that the terms of the invoked statute do not apply to him.

. While generally the right to a counsel-fee award presents an issue of law (see in this connection Hawzipta v. Ind. School Dist. No. 1-004 of Noble Co., 2000 OK CIV APP 113, ¶ 26, 13 P.3d 98), when critical facts are disputed and a hearing sought, an adversarial inquiry is the party’s due.

. Oliver's Sports Center, Inc. v. Nat’l Standard Ins. Co., 1980 OK 120, ¶ 8, 615 P.2d 291, 295; State ex rel. Burk v. City of Oklahoma City, 1979 OK 115, ¶ 20, 598 P.2d 659, 663.

. Chamberlin v. Chamberlin, 1986 OK 30, ¶ 11, 720 P.2d 721, 726.

. 12 O.S.2001 § 978; Chamberlin, supra note 23, at ¶ 11, at 726.

. Sunrizon Homes, Inc. v. American Guar. Inv. Corp., 1988 OK 145, ¶ 3, 782 P.2d 103, 109 (Memorandum Opinion on Motion for Costs).

. This approach is not inconsistent with Supreme Court Rule 1.184, infra, which deals with quests for post-appeal relief. Its terms state that a motion for an appeal-related attorney’s fee “which remains pending at the time a petition for certiorari is filed shall be addressed" by this court "unless the Supreme Court direct otherwise.” Rule 1.184, infra (emphasis added). This court should hence refer to COCA Mother’s fee quest filed after an earlier timely certiorari petition of Father but within 20 days of the opinion’s filing.

The pertinent terms of Rule 1.184, Oklahoma Supreme Court Rules, 12 O.S., App. 1, are:

Requests for post-decisional relief including but without limitation motions for appeal-related attorney's fees, motions for judgment on the supersedeas bond and motions to tax costs *588(See Rules 1.14 and 1.15) shall be considered by the division of the Court of Civil Appeals which addressed the merits of the case; provided, that if a timely petition for certiorari be filed as provided in Rules 1.178 and 1.179, any motion for post-decisional relief which remains pending at the time the petition for certiorari is filed shall be addressed by the Supreme Court, unless the Supreme Court direct otherwise. Chamberlin v. Chamberlin, 720 P.2d 721 (Okl.1986); Riffe Petroleum Company v. Great National Corp., Inc., 614 P.2d 576 (Okl.1980).

(emphasis added).

. See in this connection A-Plus Janitorial & Carpet Cleaning v. The Employers' Workers' Compensation Ass’n, 1997 OK 37, ¶ 8, 936 P.2d 916, 922; Huff v. Huff, 1984 OK 51, ¶ 5, 687 P.2d 130, 132; McCullough v. Safeway Stores, Inc., 1981 OK 38, ¶ 5, 626 P.2d 1332, 1334.

. A special master's findings are reviewable in this court by a de novo standard. McCullough, supra note 27, at ¶ 5, at 1334; Werfelman v. Miller, 1937 OK 732, 180 Okla. 267, 68 P.2d 819, 820.

. The COCA opinion was filed on 28 May 2004. The motion for an attorney's fee (directed to COCA) was filed 17 June 2004.

. There would be no need for a nunc pro tunc transfer if the clerk would consider a fee quest brought within 20 days of the COCA opinion's filing in the nature of a rehearing petition. The timely quest would automatically extend COCA's power over the appeal until the rehearing's disposition.

. A timely rehearing petition is one that is brought within 20 days of the opinion’s filing. See Rules 1.177 and 1.13, Oklahoma Supreme Court Rules, 12 O.S.2001, App. 1. After a petition for rehearing is denied by the Court of Civil Appeals, that court loses jurisdiction of the case, but the Supreme Court may grant post-decisional relief.

The pertinent terms of Rule 1.177 are:

... The time for filing a petition for rehearing shall be the same as that prescribed by filing a petition for a rehearing in the Supreme Court. See Rule 1.13. The time shall run from the date the opinion is filed....

(emphasis supplied)

The pertinent terms of Rule 1.13(a) are:

Applications for a rehearing and a brief in support thereof, unless otherwise ordered by the Court, shall be made by petition to the Court, signed by counsel, and filed with the Clerk within twenty (20) days from the date on which the opinion in the cause is filed....

(emphasis added)

. See In re Death of Gray, 2004 OK 63, ¶ 23, 100 P.3d 691, 697.