First District, Division 3 Makes These Points In Affirmance and Reversal of Rulings Below.
Marriage of Polony, Case No. A123954 (1st Dist., Div. 3 Nov. 30, 2009) (unpublished) underscores two points among many that we have discussed previously on our blog.
Point #1 is make sure you timely appeal a fees order—and do not bank on a motion for reconsideration as extending the time. Husband appealed a prior $3,000 attorney’s fees award, but failed to appeal 60 days from the date of the “notice of entry” order from the superior court clerk. At best, a motion for reconsideration extends the time to appeal until 90 days after the first motion to reconsideration is filed, Cal. Rules of Court, rule 8.108(e)(2), but Husband was still untimely in appealing even if this CRC applied.
Point #2 is make sure the trial court specifies the grounds for his fee award, even if no statement of decision or detailed oral ruling is obtained. Here, an additional $1,000 fee award to Wife was reversed because no basis at all was specified. Given that Husband obtained a downward spousal support adjustment below, the award could not be sustained as a sanction under Family Code section 271. Aside from this problem, Husband never received any warning that he would be sanctioned under this section—a due process problem not lost on the reviewing court. The $1,000 additional fees award could not be upheld as a “needs” based award under Family Code section 2030 because the lower court made no factual findings to support such an award. Result: additional award reversed.
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