Trial Judge Denied Fees Request Without Prejudice, So It Could Be Renewed.
In Jordan v. Binford, Case No. F075265 (5th Dist. Oct. 5, 2018) (unpublished), ex-husband lost a contempt proceeding in which he alleged that ex-wife willfully disobeyed a custody and visitation order. Ex-husband also sought to recover attorney’s fees from his ex-wife. The lower court observed that usually a successful party in a contempt proceeding could obtain fee recovery (Code Civ. Proc., § 1218(a), but that situation was not present. However, the lower court asked ex-husband if he was seeking a needs-based award, to which he affirmatively responded. But ex-wife objected because no income and expense declaration had been filed. The lower court denied the needs-based fees request without prejudice, indicating it could be refiled complete with an income and expense declaration. Ex-husband appealed.
The Fifth District affirmed. The contempt order appeal had to be dismissed because the contempt ruling could only be reviewed by a writ of habeas corpus, given that the proceeding is quasi-criminal in nature. With respect to the fee order, there was no abuse of discretion because no financial evidence was presented so that the lower court could properly rule on the needs-based fees request and the lower court did not foreclose ex-husband from renewing the request with proper financial data. No costs were awarded on appeal, given that ex-wife did not even file a respondent’s brief.