Scholarly Review of Amendments to Family Code Section 2030 Undertaken in Opinion.
Marriage of Foglar, Case No. H037573 (6th Dist. Aug. 16, 2012) (unpublished) caught our eye because of its discussion of the legislative amendments to Family Code section 2030, the “needs based” fee authorization in family law matters whose purpose is to make sure both sides can get a fair hearing through equal representation. The decision was authored by Justice Elia on behalf of a 3-0 panel.
The appellate court observed that the current version of section 2030 reinforces the Legislature’s priority on parity of access to legal representation during dissolution proceedings. Before 2005, the statute only stated that the court “may” award reasonable fees to accomplish access to legal representation, but the 2004 amendment conveyed a strengthened resolve by revising it to say “shall.” The 2010 amendment added the language “including access early in the proceedings.” In both versions, the family law judge still retains discretion because the award must be determined to be “necessary” and “appropriate.” Also in 2010, the Legislature amended section 2030(a)(2) requiring the court to make express findings on the parties’ financial needs and abilities to secure legal representation--overturning the prior law that these factors only needed to be “considered.” (BLOG OBSERVATION--Justice Ikola, on behalf of a Fourth District, Division 3 panel, also discussed the 2010 amendments requiring express findings in Marriage of Bader, Case No. G044876 (2011), discussed in our December 22, 2011 post.)
In Foglar, there was a lot of conflicting and missing evidence on financial needs by both sides, although husband was an orthopedic surgeon and wife was unemployed/disabled and husband was making (and ordered to make) hefty monthly family support payments of $20,000--even though he claimed an offset for wife’s obligations to pay her part of tax liabilities and he further alleged she had shopaholic tendencies which should be a mitigating factor. Based on the proof problems, the family law judge made two assumptions--husband continued to owe wife for $20,000 in monthly support payments and wife’s accountant had accurately calculated husband’s income to be $36,305 a month. Based on this, the lower court concluded that wife received about 55% of the net spendable income of the family and should pay her own attorney’s fees for the relevant period, notwithstanding that husband should pay for $4,500 of fees and $10,000 of wife’s accountant previously ordered.
Wife, on appeal, basically argued the lower court abused its discretion, but the record showed thoughtfulness in the assumptions motivating the award which indeed were supported by substantial evidence. The family law judge also made the express findings required under section 2030(a)(2). Beyond that, the order denying wife’s fees was tentative/conditional, expressly subject to revision based upon presentation of additional, more complete evidence. (Fam. Code, § 2030(c).) Fee order affirmed.
BLOG UNDERVIEW--Husband had incurred (and mainly paid) $118-127,000 in fees roughly, while wife had incurred about $77,000 in fees.