Appellate Court Found These Combined Errors To Require A “Relook” At the RFO.
Family law is certainly a specialty, where a lot gets done through a Request for Order (RFO) for support, provisional attorney’s fees, visitation, and other matters in a dissolution action. A lot of activity is governed by Judicial Council forms, with civil detailed legal memorandum not seen very much unless there is a complex issue or maybe in a trial brief in a complicated case. The next illustrates how a family law judge was reversed for not giving a little more leeway under the RFO process.
In Marriage of Bazar & Shorr, Case No. B275808 (2d Dist., Div. 7 July 31, 2018) (unpublished), ex-wife sought need-based Family Code section 2032 attorney’s fees and costs to have a limited appearance attorney defend her (she was mainly acting in pro per in the dissolution action) in ex-husband’s motion to declare her a vexatious litigant. The family law judge, after several hearings on RFOs from ex-wife, only awarded her $2,500 in fees out of a requested $42,341 in fees and costs. The appellate court reversed after ex-wife appealed.
It found several errors.
First, the family law judge incorrectly refused to consider one RFO because ex-wife did not attach Judicial Council FL-158 (“Supporting Declaration For Attorney’s Fee and Costs”) and FL-157 (”Spousal or Partner Support Declaration Attachment”). In doing so, it distinguished how the process goes: “We acknowledge it is preferable from the court’s perspective to have all necessary information relating to the requesting party’s needs and the responding party’s ability to pay the other side’s attorney fees in the moving papers. But as Bazar’s counsel emphasized at the hearing on the first request for fees, the court’s reasoning creates a Catch-22 for a self- represented litigant in family court where, as here, that party must respond under a deadline to a request for order filed by his or her former spouse: The self-represented party cannot request an order for pendente lite attorney fees without first conducting discovery about his or her former spouse’s current financial situation; but without first filing a request for order for fees, discovery regarding the former spouse’s financial situation is not authorized. Moreover, without an order awarding fees, the self- represented litigant generally cannot afford an attorney to conduct discovery, to respond to the request that triggered the new proceedings or even to seek to continue the substantive matters until the fee issues, as well as any discovery disputes, have been resolved.” (Slip Op., pp. 13-14.) The reviewing court also noted that there was no prejudice to ex-husband, because was able to provide a meaningful response to the RFO.
Second, the family law judge erroneously failed to consider ex-wife’s Income and Expense Declaration (FL-150) because she left certain items blank rather than putting zeroes in the form, which was in derogation of a Los Angeles County Superior Court Local Rule. The appellate court viewed the refusal to consider as tantamount to a terminating sanctions order, which was not justified given ex-wife’s substantial compliance and the fact that an OSC notice of not considering the Declaration due to these defects should have been given to her.
Third, in light of the previous flaws, the family law judge erred in not considering the fees and costs that ex-wife paid to her limited appearance attorney when adjudicating her RFO.
The $2,500 award was reversed for a remand “relook.”