Family Law: Fees On Appeal Are A Matter For Trial Court’s Consideration First

 

Remand to Trial Court Under CRC 3.1702(c) and 8.278(c)(1).

     In Bardales v. Duarte, Case No. D048239 (4^th Dist., Div. 1 Feb. 8, 2010) (certified for publication), the Court of Appeal affirmed a trial court determination that it had the power to dismiss a petition seeking return of children under the Hague Convention on the Civil Aspects of International Child Abduction because of petitioner’s delay in prosecuting it and then proceeding to decide custody and related matters under state law.

     Respondent then sought fees on appeal for prevailing under Family Code section 271. However, in a good primer on how this type of request is generally treated, the appellate panel indicated it should be addressed to the trial court first, remanding for consideration of entitlement of appellate fees. That gives a good illustration of how most appellate courts deal with fee issues, given that they are not set up to address the many contested issues that may arise in this area of the law.

  Peace Palace, The Hague.