No Exception to the Written Application Rule Applied Because Request Made At Non-Merits Hearing
The lower court in Marriage of Erb and White, Case No. D060486 (4th Dist., Div. 1 Jan. 14, 2013) (unpublished) properly rebuffed mother’s oral request for a needs-based fees award at a procedural motion proceeding to set a future hearing. Family Code section 2031(b)(1) allows for oral motions for fees, but only where they are made at the time of hearing on the merits of a matter--a situation not presented because it was only a procedural, non-merits hearing on whether to maintain to a scheduled hearing date. Beyond that, the lower court did give her time to file a written fee application, something she never did. Finally, mother presented no evidence in support of a needs-based award, failing to file current income and expense declarations mandated by California Rules of Court rules 5.92(a)(5) and 5.128. No abuse of discretion in failing to entertain the oral fees request.