Even Under Abuse of Discretion Standard, Family Fee Awards Must Be Based on Consideration of Proper Set of Facts.
We have frequently discussed how deferential the abuse of discretion standard is in most fee awards, which is the governing standard for awarding attorney’s fees in marital proceedings. (In re Marriage of Cheriton, 92 Cal.App.4th 269, 314 (2001).) However, the lower court’s discretion still “must be based on proper matter.” (Robbins v. Alibrandi, 127 Cal.App.4th 438, 452 (2005).) The next case exemplifies a situation in which two fee awards were reversed and remanded for improper timing and financial need considerations possibly used by the family law judge in awarding fees to wife on a “need” basis under Family Code section 2030.
A need-based award of attorney’s fees and costs under the Family Code focuses on the relative circumstances of the respective parties. (Section 2030(a).) The key considerations are the recipient’s need for the award and the obligor’s ability to pay (section 2030(a)(2)), with ability to pay generally focusing on assets and earning capacity. (In re Marriage of Drake, 53 Cal.App.4th 1139, 1167 (1997); Fam. Code, secs. 2032(b), 4320(a), (e).)
In Marriage of Trivers & Quirk, Case No. H030848 (6th Dist. Oct. 17, 2008) (unpublished), the Sixth District determined that the family law judge may have focused on improper timing circumstances or failed to assess financial need correctly because of conceded errors in monetary calculations. This was considered an abuse of discretion in awarding fees, because improper matters should not enter into the adjudicative equation.
The specifics of the reversals and remands were:
· Timing issue—The lower court’s statements indicated that he may not have considered the parties’ financial situations back in April 2004, but used a much later time period that was nongermane. This required a remand. However, the Sixth District did not buy husband’s argument that wife’s child support payments and repayment of a purchase money loan from non-recurring sale proceeds count on the income side of the equation. (See, e.g., In re Marriage of Corman, 59 Cal.App.4th 1492, 1499 (1997); In re Marriage of Scheppers, 86 Cal.App.4th 646, 650 (2001).)
· Child support miscalculations—Husband pointed to evidence that the lower court may have overstated his mortgage interest deduction (by more than $11,500 per month) and admittedly made mathematical errors in calculating child support (which may have overstated his income by as much as $14,000 per month). Based on these errors or miscalculations, the relative financial circumstances of the parties might be different, so a remand was in order.
The key lesson from this case is to create a clean appellate court record of circumstances showing that the trial court’s perception was influenced by flawed factors. In this way, a reversal and remand can be obtained, usually with appellate directives on what circumstances should be properly considered.