Error In Not Requiring Updated Financial Declarations Deemed Harmless In Recent Fourth District, Division One Decision.
Under our category "Cases: Family Law Awards," we have reviewed numerous attorney's fees awards under Family Code section 271 and other related provisions. Section 271 is in the nature of a sanctions in family law cases, authorizing an award of fees and costs where a party or attorney frustrates settlement efforts or fails to reduce the costs of litigation through cooperative conduct. Section 3557(a)(1)(A) authorizes a fees award to a custodial parent who brings an action to enforce an existing child support order. Both statutes and court rules require that income and expense declarations be filed to assess fee award requests. (See, e.g., Cal. Rules of Court, rule 5.128.)
In Marriage of Parker, Case No. D052580 (4th Dist., Div. 1 Dec. 23, 2008) (unpublished), former husband challenged fee awards under sections 271 and 3557 on the basis that the family law judge did not consider recent income/expense declarations when determining whether it should award fees against husband.
On appeal, the Fourth District, Division 1 determined that the error was harmless. (For those of you new to appellate practice in California, most errors need to be prejudicial in nature in order to warrant reversal upon review.) Because the trial court had the benefit of prior income/expense declarations dating back a year earlier and husband did not suggest there was any substantial change in financial circumstances, no prejudice was shown from the lower court deciding not to require updated financial information in proceedings below.
BLOG OBSERVATION--This decision does serve as a reminder that inclusion of updated financial information may well diffuse an appellate challenge in this area of the law once the matter gets to the next level of review.