Large-Scale Dissolution Battle Was Involved, With Appellate Court Giving Great Explanation Of Abuse Of Discretion Standard Of Review—Likely a “Smell Test” At Best.
In Marriage of Vinhas and Krognes, Case No. A144387 (1st Dist., Div. 2 Aug. 9, 2018) (unpublished), a family law judge largely decided marital standard of living issues in favor of ex-husband where his earnings plunged to a quite modest level after a few years of large earnings before separation. This case involved a non-consummated Swiss divorce agreement and ex-wife moving to Paris to live with her boyfriend, and the couple finally signing a divorce agreement in San Francisco, among other interesting and diverse facts. Ex-wife wanted $71,700 per month in support, but the family law judge awarded closer to $12,000 per month after factoring in other transfers or retentions of substantial assets. The family law judge denied most of ex-wife’s request for late-in-the game attorney’s fees requests, including denial of fees relating to child and spousal support requests.
Ex-wife appealed, with ex-husband mainly winning but with a remand to revisit an award of fees for ex-wife’s successful child modification request. However, as we note in our BLOG OBSERVATION below, the opinion maybe has the most lucid, pragmatic definition of the appellate abuse of discretion standard—although some of our readers might think it too trite (even though we actually think it has some commonsense appeal).
In denying fees, the family law judge did observe that ex-wife incurred $472,107 in attorney’s and forensic accounting fees (yikes!); husband took the laboring oar with respect to a realistic financial analysis; and wife drove up the fees based on how she litigated and in not being candid in her financial disclosures. So, the appellate court found that her requests for additional prejudgment fees and appellate fees were properly denied given that she had substantial access to funds (she had received $3.1 million in separate property) and that she had received over $8,500 in monthly child/spousal support for a period of time—not to mention her request for relief was astronomical in nature. However, it was error to not award her some fees for modifying child support under the Family Code section 3652 fee-shifting provision. But, to the contrary, the family law judge did not err in denying fees for modification of spousal support request given that ex-wife purchased an $1.8 million house such that her plea of “liquid asset poverty” did not resonate with the reviewing court.
BLOG OBSERVATION—As we promised, here is what the appellate court had to say on the abuse of discretion standard, which we truncate (but with the full discussion being even more enlightening): “[O]ne commentator colorfully described a reversal for abuse of discretion as ‘the noise made by an appellate court while delivering a figurative blow to the trial judge’s solar plexus. It is a way of saying to the trial judge, “This one’s on you.” The term has no meaning or idea content that I have ever been able to discern. It is just a way of recording the delivery of a punch to the judicial midriff.’ (Rosenberg, Professor of Law, Columbia University, address to Federal Appellate Judges Seminar (May 13–16, 1975) Appellate Review of Trial Court Discretion.)”