CALIFORNIA ATTORNEY'S FEES

Family Law: Denials Of Contempt Proceeding For Alleged Visitation Order Disobedience And Needs-Based Fees Request, Adverse To Ex-Husband, Were Proper

Trial Judge Denied Fees Request Without Prejudice, So It Could Be Renewed.

            In Jordan v. Binford, Case No. F075265 (5^th 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 Oct. 5, 2018) (unpublished), ex-husband lost a contempt proceeding in which he alleged that ex-wife willfully disobeyed a custody and visitation order.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.

Family Law: Family Law Commissioner Did Not Err In Denying Most Of Ex-Wife’s 2030/271 Fee Or Sanctions Request Based On DissoMaster Showing Equal Net Spendable Income And Both Sides’ “Grossly Over-Litigated” Stances

No Abuse Of Discretion Shown.

            In Marriage of Elgin and Yenyk, Case No. B285857 (2d Dist., Div. 1 Oct. 2, 2018) (unpublished), the family law commissioner—except for one missed appearance by ex-husband’s attorney—did not award anywhere close to the needs-based fees or Family Code section 271 sanctions to ex-wife as she requested. The commissioner used the DissoMaster to show that each party had roughly the same net spendable income and observed that the case had been “grossly over-litigated” with “fault in both directions.”

            Ex-wife’s challenges on appeal could not overcome the abuse of discretion standard, given she had the burden of proof on both the fee and sanctions grounds. The DissoMaster showing was good enough alone, but ex-wife’s “trial tactics” could not go ignored—even though both parties were at fault in over-litigating the matter.

Family Law: Family Code Section 2030(a) Requires Explicit Needs-Based Findings And A Mandatory Fee Recovery If The Findings Show Disparity In Financial Resources/Ability To Pay

Here, Appellate Court Determined Record Showed Financial Gulf Such That Fee Recovery Was Mandatory, Remanding To Determine Amount Of Fees To Be Awarded To Ex-Wife.

            In Marriage of Morton, Case Nos. F073689/F074243 (5^th Dist. Sept. 26, 2018; reposted for corrected version on Oct. 1, 2018) (partially published; fee discussion published), the Fifth District concluded that amendments to Family Code section 2030, the “needs-based” fee provision, require lower court to make explicit findings on the need factors set forth in section 2030(a)(2) and then require a mandatory fee recovery if those factors show a financial disparity or inability to pay by the moving dissolution litigant. The findings can be in writing or made orally on the record. In this instance, the findings were not made, so that left the remedy on appeal—either a remand to make the findings or remand to determine the amount of fees to be awarded to ex-wife. The Court of Appeal concluded that the record clearly showed disparity/lack of an ability to pay, so that the remand was made to determine the amount of fees to ex-wife plus any fees for winning the appeal as determined in the discretion of the lower court.

Family Law: Trial Judge Properly Denied Ex-Husband’s Request That Ex-Wife Pay $35,000 Of His Fees Under “Needs-Based” Family Code Section 2030

Neither Side Enjoyed A Substantial Financial Advantage Over The Other, Plus Ex-Husband’s Emails Showing He Intended To Make The Case “A Battle Of Attrition,” Justified Denial Of The Fee Request.

             Family Code section 2030 is a needs-based fee shifting provision which allows a family law judge to “level the playing field” by ordering one side to pay the other side’s attorney’s fees where the circumstances show a financial advantage by one side and other circumstances justify such a shifting of fees.

             Ex-husband, in Marriage of Papageorges, Case No. G054776 (4^th Dist., Div. 3 Sept. 24, 2018) (unpublished), brought a 2030 request for ex-wife to pay $35,000 out of $58,000 in attorney’s fees which he incurred. Ex-husband also criticized the work of one of his former divorce attorneys. Ex-wife had incurred about $25,000 in fees, with ex-husband sending some improvident emails indicating he was going to make the dissolution matter a “very long, long battle of attrition,” threatening to involve the media, and observing that he was going to “start the meter and spend her money.” The trial judge denied the fee request, finding that discrepancy on what was spent was inexplicable and that ex-husband had driven up the costs based on his “battle of attrition” mentality.

             The Fourth District, Division 3, in an opinion authored by Justice Goethals, affirmed. No abuse of discretion was shown in denying fees, given that (1) ex-husband provided no justification for the substantial difference in fees he incurred versus what his ex-wife incurred, (2) neither party enjoyed a substantial financial advantage over the other as far as assets and marital income, and (3) ex-husband’s emails showed that his own conduct had contributed to the fees for which he requested 2030 fee shifting. We definitely believe that ex-husband’s emails hurt his cause before both the lower and appellate courts, which signals to litigants that they need to be careful about what they say in emails—they can and will be used against you!

Family Law: Lower Court Erred In Failing To Award Needs-Based Fees To Ex-Wife After She Prevailed On Appeal

Family Law Judge Did Not Consider Husband’s Ability to Pay, And Wife Was Not Required To Make A Separate Request For Fees On Appeal When She Had Already Requested Them.

            Marriage of McCallon, Case No. G054567 (4^th Dist., Div. 3 Aug. 20, 2018) (unpublished) is an interesting case in which an ex-wife gets a remand opportunity to recoup fees for winning a previous appeal on other proceedings.  A number of procedural and substantive issues were decided in this one, so strap up for the “judicial ride.”

            What happened, boiled down, was this: wife prevailed on appeal from an order terminating spousal support, then seeking fees under a marital settlement agreement, Family Code section 271 (sanctions), and Family Code sections 2030/2032 (needs-based fees statute). The lower court denied fees on any of these bases, prompting an appeal. Wife did get relief in the form of a remand to determine fees under the needs-based fees statutes.

            Appealability was the first issue. The interim order being appealed from was not a final order such that it was not appealable. It also did not qualify as a collateral final order given that wife was not directed to pay any money to husband.

            The lower court did get it right as to no fee entitlement under the marital settlement agreement and section 271. With respect to the MSA, the language was not a prevailing party clause but simply reserved the right to apply for future fees under sections 271 or 2030/2032—this reservation language was not akin to a fees entitlement clause on a stand-alone basis. The section 271 sanctions request was correctly denied because ex-husband’s modification request was not frivolous and simply did not confer fee entitlement because it was reversed on appeal.

            That took the appellate court to the critical needs-based fees request, which took ex-wife to the promised land as far as a reversal was concerned. The main problem is that the lower court denied fees without recognizing that the appellate court’s earlier reversal was one for the entire post-judgment order inclusive of the decision on attorney’s fees. Ex-wife was entitled to fees on remand for successful appellate work. Ex-wife also did not have to request fees somehow again until an appeal was concluded to be entitled to them—after all, a litigant like wife does not have to be clairvoyant in predicting whether an appeal would be won. Finally, on the merits, the trial court failed to consider husband’s ability to pay versus just basing a fees denial based on wife’s ability to pay. So, both parties’ relative circumstances had to considered on remand as it related to all of the germane fee motions denied below.

            Acting Justice Fybel authored the 3-0 panel decision in favor of ex-wife.

Family Law: Section 271 Sanctions Award Of $50,000 Against Ex-Husband Reversed On Due Process Grounds

None Of Ex-Wife’s Papers Before A Critical Hearing Specifically Referenced Section 271, Requiring A Reversal Without Prejudice.

            This next case, Marriage of Bauer, Case No. H041338 (6^th Dist. Aug. 10, 2018) (unpublished), teaches an important due process lesson in family law cases: if you are going after fees as Family Code section 271 sections (not being cooperative or trying to resolve the case), make sure your papers or briefs cite the section specifically.

            What basically happened was that ex-wife failed to cite section 271 in her latter requests for order or trial briefs, despite doing it in prior hearings at which the requests were denied for the time being. Ex-husband raised the argument he did have notice or opportunity to be heard, with the appellate court agreeing and reversing the trial judge’s $50,000 sanctions award without prejudice. The reason was ex-wife’s failure to comply with Parker v. Harbert, 212 Cal.App.4^th 1172, 1178 (2012), which holds that due process requires that a notice for section 271 sanctions must specify the authority relied upon and must advise of the specific grounds/conduct on which sanctions are to be based.

Family Law: Bulk of Attorney’s Fees Rulings Contested By Ex-Wife Affirmed, Although One Award Denying Fees For Child Support Modification Was Reversed

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 (1^st 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.)”

Family Law: $2.5K Needs-Based Fee Award Of Req. $42K Was Abuse Of Discretion As Ex-Wife Did Attach Sufficient Fin. Info., Notice Not Given That Blanks In Jud. Council Forms Would Result In Denial, And Judge Excluded Her Ltd. Appearance Counsel’s Fees

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.”

Family Law: Court-Appointed Expert Award Against Ex-Husband Reversed Because No Hearing Held To Determine If Request Was Reasonable

Evidence Code Section 730 Makes Reasonableness A Requirement.

            In Marriage of Aresh, Case No. G054062 (4^th Dist., Div. 3 July 25, 2018) (unpublished), an ex-husband was saddled with a $179,561 award to a court-appointed forensic accountant in a dissolution matter. He appealed and was awarded by doing so. The problem was that Evidence Code section 730 determines that such an award must be reasonable in nature, and the lower court held no hearing to determine if that was the case. So, it was reversed and remanded for an evidentiary hearing. Justice Aronson authored the 3-0 opinion.

Family Law: In Fletcher Jones, Jr. Dissolution, $5.8M Fee Award Of Requested $9.5M To Ex-Wife For CA Litigation Not Abuse Of Discretion, But Remanded To See If Ex-Wife Entitled To More Than $375K For NV Litigation Where She Failed To Invalidate Agrmnts.

Remand Necessary In Nevada Litigation Because California Family Law Judge Improperly Took Judicial Notice Of Factual Finding By Nevada Court In Denying A Request For A Reimbursement Of Additional Fees.

       

        Admittedly, the Fletcher (Ted) Jones, Jr. dissolution case was going to be messy—after all, the couple lived a lavish lifestyle based on lucrative luxury car dealerships/ leasing businesses. The dissolution took on litigation in both California and Nevada, with California dealing with standard issues (status, parenting schedules, and child/spousal support) while Nevada dealt with the issue of whether the three prenuptial/postmarital agreements were valid/enforceable.

        The family law judge ordered Ted to pay Kimberly $375,000 in attorney’s fees so that she could do war in the Nevada litigation. After a 23-day trial in California, the family law judge ordered Ted to pay Kimberly $120,000 per month in child support for three children, $245,000 per month in spousal support, and $5.8 million in attorney’s fees (just for the California litigation). What he refused to do was order Ted to pay another $3.7 million in fees requested by Kimberly, which would have totaled about $9.5 million in fees altogether.

       Kimberly did not do well in Nevada. After a 31-day trial, she lost the attempts to invalidate the three agreements, with the Nevada court ordering her to reimburse Ted $4 million for his attorney’s fees and costs.

        Kimberly requested the California judge to award her more than the $375,000 in fees for Nevada work, but he refused after taking judicial notice of the Nevada judgment and factual findings associated therewith.

        Kimberly appealed, partially losing but gaining a shot again at the Nevada fee reimbursement request (although one wonders how successful this will be), in an unpublished opinion authored by Justice Moore in Marriage of Jones, Case No. G053394 (4^th Dist., Div. 3 July 18, 2018) (unpublished).

        The appellate court agreed that the $5.8 million California fee award was no abuse of discretion. It found that the California litigation involved standard issues and was over-litigated on Kimberly’s side.

        However, it did find that the trial court incorrectly determined that it was legally precluded from ordering Ted to reimburse Kimberly for fees related to the Nevada litigation, given an earlier appellate decision finding that “related” proceedings could allow a California judge discretion to award for work in them. (See our post of May 14, 2015 on the earlier decision.) The family law judge decided he had no fee adjudication powers with respect to the Nevada action, with exclusive jurisdiction being in that court such that the judgment there was binding under res judicata/collateral estoppel principles. The 4/3 DCA panel disagreed because the Nevada action involved the three agreements versus the more standard issues which were germane in California. However, the appellate court was uncertain that Kimberly was prejudiced, but gave her the benefit of the doubt given the California family judge took judicial notice of “toxic findings” in the Nevada judgment about her Nevada-based litigation behavior—which might have tainted things. So, the matter goes back for a remand on the Nevada fee issue.

        BLOG OBSERVATION—The California appellate court awarded Ted his costs on appeal. While we do not know the fees spent on this appeal (or the additional fees being expended in Nevada by the parties), we can tell you that the ex-couple at a minimum likely spent $10 million apiece, if not more, between the California and Nevada cases if our math is anywhere close to correct by the time this decision was issued.

 

      

Family Law: Section 271 Sanctions For Attempted Sale Of Property, Even Though No Attorney’s Fees Incurred, Had To Be Reversed

Sixth District Follows First District’s Lead As Far As Section 271 Sanctions Limitations.

            In Marriage of Henley & Jackson, Case No. H043753 (6^th Dist. June 29, 2018) (unpublished), a family law judge imposed Family Code section 271 sanctions of $25,000 against husband for his efforts to sell a community asset without notice to wife, even though she incurred no attorney’s fees and costs in the process. That, among other issues, were reversed and remanded on appeal, by husband. The Sixth District adopted the reasoning of the First District in Sagonowsky v. Kekoa, 6 Cal.App.5^th 1142, 1144, 1157 (2016), which held that misconduct over beyond fees/costs actually incurred was not within the reach of section 271.

Family Code: $114,522.50 In Section 270 Sanctions Against Husband In Contentious Dissolution Affirmed On Appeal

Attorneys Did Seek Sanctions On Behalf Of Wife And Failure To Include Income/Expense Declaration On Appeal Failed To Support Husband’s Financial Burden Argument.

            In Marriage of Sokol & Avidor, Case No. B280783 (2d Dist., Div. 5 June 20, 2018) (unpublished), husband was ordered to pay a total of $114,522.50 in Family Code section 270 based on failing to cooperate and driving up expenses during the course of a dissolution proceeding. Of that, $14,552.50 was awarded to one of wife’s former attorneys, and $100,000 went to wife’s then-current attorney based on five instances of sanctionable conduct. (By the way, husband did not have to pay needs-based fees to wife.)

            The 2/5 DCA affirmed the sanctions awards.

            Husband argued that the family law judge erred by ordering him to pay wife’s attorneys directly, in contravention of Webb v. Webb, 12 Cal.App.5^th 876, 883 (2017) [which held that section 270 “contemplates that only a party may move for an award of sanctions”]. The reviewing court found Webb distinguishable because the record indicated that the sanctions were imposed for wife’s benefit, not just the attorneys’ benefit such that they would be credited to her fee obligations. With respect to the argument that the awards were financially crushing for husband, he failed to include a filed copy of an income/expense declaration with the appellate record (despite being submitted before the lower court), such that the appellate court presumed that the declaration supported the court’s conclusion that sanctions would not impose an unreasonable financial burden.  

Discovery, Family Law, Sanctions: $5,500 Discovery Sanctions Award Against Ex-Client Attorney Reversed Where Attorney Not Given Notice She Was A “Sanctions Target”

Due Process Violation Was Reason For Reversal.

             In Marriage of Mehta & Grover, Case No. A146919 (1^st Dist., Div. 4 June 19, 2018) (unpublished), a $5,500 discovery sanction against an ex-attorney for wife was reversed on due process grounds. What happened was that before the discovery sanctions motion was decided, attorney was relieved as wife’s attorney, with nothing in the papers indicating she was the target of a discovery sanctions request (with only her client wife indicated as a target). The subsequent $5,500 sanctions order against ex-attorney was reversed on due process grounds, given the attorney had no notice that she was personally the subject of the sanctions request. Here is what the appellate court had to say on a broader basis with respect to sanctions request in moving or opposing papers: “To interpret [Code of Civil Procedure] section 2023.040 as imposing a notice obligation only on those who elect to include a sanctions motion in moving papers (i.e., in a discovery motion or in a separate sanctions motion), and not on those who include a sanctions motion in opposition papers, would defeat the obvious purpose of the statute and would lead to absurd consequences.” (Slip Op., p. 9.)

Appealability, Family Law: Litigant’s Failures To Specify Fee Order As Subject Of Notice Of Appeal And As Appeal Subject In Civil Information Statement Were Fatal In Nature

Although Notices Of Appeal Are Construed Liberally, The Order Under Appeal Still Must Be Specified With Some Precision.

            Marriage of Schoenfeld, Case No. B281835 (2d Dist., Div. 7 June 18, 2018) (unpublished) is a reminder to appellants that some precision must be made in both the notice of appeal and the appellate civil information statement in order to demonstrate that a particular order is truly the subject of review. (For litigants unaware of this last requirement, a civil information statement must be filed with California appellate courts within 15 days of notification by the clerk about the appeal being filed. It requests pointed questions about the orders being appealed from, their dates, and the bases for the appeal.)

            In this one, the litigant did not specify that it was appealing from a pendente lite fee order, although such an order is appealable. (In re Marriage of Tharp, 188 Cal.App.4^th 1295, 1311 (2010).) Appellant compounded his problems by not mentioning the fee order in the civil information statement filed with the Court of Appeal. The result was that the appellate court dismissed the appeal, given that appellant did not specify he was challenging the fee order.

Family Law: Section 271 Sanctions Award Against Ex-Wife And Section 2030/2032 Denial Of Needs-Based Award To Ex-Wife Both Reversed On Appeal

Both Sides Had Paid Or Owed A Cumulative $1.841 Million In Dissolution Proceedings.

            We are not sure that the appellate court was happy with any of the parties in this case that we now report on.   After all, in the dissolution saga, ex-husband had paid attorneys $900,000, still owing $70,000, while ex-wife had paid $241,000, but owed her current attorney about $530,000. However, given this tremendous expenditure of about $1.841 million if our math is correct, looks like the appellate court kept its objectivity intact.

            In Marriage of Stupp & Schilders, Case Nos. A146301/A148051 and A148382 (1^st Dist., Div. 2 May 30, 2018) (all unpublished), the appellate court principally was reviewing discovery sanctions and Family Code section 271 sanctions against ex-wife and the denial of Family Code section 2030/2032 needs-based fee request by ex-wife. (The discovery sanctions against ex-wife totaled $8,971 [either in favor of ex-husband or his attorney] and $2,500 section 271 sanctions in favor of ex-husband). On the separate needs-based request, ex-wife sought $370,000 in fees from ex-husband, but the trial judge denied the request finding the parties were essentially in the same financial position.

            The section 271 sanctions and denial of needs-based fees, with respect to ex-wife, were both reversed on appeal.

            Section 271 sanctions. The discovery sanctions did get affirmed against ex-wife. However, the section 271 sanctions were overturned because the appellate court believed that this was a “double dip” award which was unfair given that the pain already was inflicted and ameliorated through the discovery sanctions award.

            Needs-Based request by ex-wife. This one got reversed based on the record showing that the disposable monthly income was not “close” in nature. Ex-husband did have much more resources, such that he had much more of a “war chest” such that a restudy by the family judge law was required, although the appellate court astutely did not pass on what should be awarded—if anything—on remand.

Family Law: Ex-Husband Receives Full $138,000 Of Fee Request Against Ex-Wife For Modifying Support Order And Ex-Wife Only Received $10,627 In Fees Out Of Requested $159,783 Fee Request Against Ex-Husband Under Family Code Section 271 Sanctions Provision.

Ex-Husband Obtained A Lopsided Win, With Both Parties Expending $1 Million In Litigation Costs Since Separation.

           Attorney’s fees awards in family law setting are extremely discretionary and the end rest of litigation costs for both parties along the way, even with some reimbursement awards allowed, can certainly make destitute or bankrupt any party. This is well illustrated by what occurred in Marriage of Turnbaugh, Case Nos. A1496157/A1510805 (1^st Dist., Div. 1 May 24, 2018) (unpublished).

            In this situation, both sides had expended $1 million in litigation costs since separation. (Yep, this is no typo.) Ex-husband sought $138,000 from ex-wife under Family Code section 3652, which allows the court to award fees and costs to a prevailing party for obtaining an order modifying, terminating, or setting side a prior support order. He did obtain a reduction in support and did not have to pay private school tuition for his two boys based on a declining financial condition. That fee request was granted in full.   Ex-wife obtained $10,627 out of a requested $159,783 in fees under Family Code section 271’s provision against ex-husband.

            Ex-wife appealed the Family Code section 3652 award to ex-husband.

            The appellate court affirmed. Although there is no definition of “prevailing party” in section 3652, courts in other situations use a practical approach, which was adopted as the standard by the reviewing panel in this cause. Here, the outcome was lopsided in ex-husband’s favor such that no abuse of discretion occurred in granting the “full boat” fee request.

Family Law: $20,000 Section 271 Sanctions Award And $5,000 Breach of Fiduciary Duty Sanctions Award Affirmed By 4/3 DCA Against Ex-Wife

But No Appellate Fees Awarded To Ex-Husband.

            In Marriage of Reed, Case No. G050666 (4^th Dist., Div. 3 May 15, 2018) (unpublished), ex-wife was assessed with $20,000 in sanctions under Family Code section 271 and another $5,000 in sanctions for breach of fiduciary duty for failure to disclose the existence of a community property pension, both in favor of ex-husband. Wife’s appeal failed to surmount the deferential abuse of discretion standard. The many continuances, delays, and no-shows by ex-wife meant that ex-husband had to repeatedly submit income and expense declarations and his counsel had to go to court unnecessarily, justifying the section 271 sanctions. Three Family Code provisions—section 1101(g), section 2107(c), and section 271(a)—collectively give the court authority to order sanctions and pay attorney’s fees for breach of a party’s fiduciary duty of disclosure, which would encompass failure to disclose the existence of ex-wife’s retirement plan and with the appellate court observing that the lower court was lenient in only imposing $5,000 in sanctions. Ex-husband asked for an award of fees on appeal, but that was denied because ex-husband failed to provide any financial information of ex-wife so as to justify an award under Family Code section 2030 and because the reviewing court on its own raised the key jurisdictional issue such that section 271 appellate sanctions were unwarranted.

            Justice Fybel authored this 3-0 panel opinion.

Family Law: $30,000 271 Sanctions Against Ex-Husband Not Reviewable For Lack Of Adequate Record Including Family Hearings Which Led To The Sanctions Order

Also, Disentitlement Doctrine Might Prevent Further Appeals By Ex-Husband.

            Ex-husband in Marriage of Volovik & Parchin, Case No. B280980 (2d Dist., Div. 5 Apr. 18, 2018) (unpublished) was disgruntled when the lower court imposed a Family Code section 271 sanction award of $30,000 against him, although the result could have been worse given the 271 request for $70,964.  The sanctions order was affirmed because ex-husband failed to provide an adequate record in the form of reporter’s transcripts of family law hearings which would have allowed the appellate court to see if there was a true abuse of discretion.

            The appellate court, in a footnote, also indicated that it might not entertain future appeals by ex-husband under the disentitlement doctrine.   It was alleged that ex-husband only paid $197 of the $30,000 sanctions award, such that the reviewing court can dismiss an appeal for a litigant’s failure to comply with trial court orders, in this case the $30,000 sanctions order which was sustained after this particular appeal.

Family Law/Record: Ex-Wife’s 271 Sanctions Request Properly Denied

Failure to Include Reporter’s Transcript Of Fee Proceedings Was Fatal On Appeal.

            In a growing trend among California intermediate appellate courts, the 4/3 DCA in Marriage of Watts, Case No. G053304 (4^th Dist., Div. 3 Apr. 11, 2018) (unpublished), affirmed the denial of Family Code section 217 sanctions to the tune of $37,000 as requested by ex-wife based on a failure to provide a reporter’s transcript of a hearing on appeal.   Given that the lower court’s ruling was governed by an abuse of discretion standard, the appellate court found that the appellant’s failure to provide a reporter’s transcript of the fee proceeding cemented the presumption that adequate evidence and argument was presented to support the lower court’s decision to deny 271 sanctions.  Acting Presiding Justice Bedsworth authored this 3-0 panel decision.

Appeal Sanctions/Family Law: $25,000 Family Code Section 271 Sanction Affirmed On Appeal

Appeal By Ex-Wife Found Frivolous, Which Carried $10,000 More In Sanctions.

            Marriage of Wintermute and Soltan, Case No. G052397 (4^th Dist., Div. 3 Apr. 9, 2018) (unpublished) was a situation where ex-wife appealed a Family Code section 271 sanction of $25,000 after an earlier appellate opinion disagreed with a critical assertion of ex-wife that a settlement was not global in nature, a ruling which became law of the case.  The section 271 sanction was for ex-wife’s failure to do a tardy dismissal as was promised to be done.  (The lower court actually disallowed $4,000 of the original sanctions request because the other side failed to file acceptable declarations during a few prior go-arounds.)  The appellate court affirmed the sanctions award based on the abuse of discretion standard, finding that ex-wife “was lucky to get away with the modesty penalty of $25,000.”  The other side moved to recoup fees for a frivolous appeal, with the 4/3 DCA panel—in an opinion authored by Acting Presiding Justice Bedsworth—ordering ex-wife and her counsel to pay $5,000 to the other side and to pay $5,000 to the clerk of the court for some of the expenses for internal court time in working up the appeal. 

Family Law Post: Family Code Section 271 Sanctions Can Be Deducted From The Variable Component Of A Spousal Support Order

Spousal Support Is Income For Purposes Of Interpreting Section 271.

            In Marriage of Pearson, Case No. D070360 (4^th Dist., Div. 1 Mar. 12, 2018 partially published; fee discussion published; other parts of opinion modified Mar. 27, 2018), the 4/1 DCA decided that a trial judge did not err in ordering that Family Code section 271 sanctions against an ex-wife could be paid for by ex-husband’s deduction of the sanctions from the variable component of his spousal support obligations (in this case, future bonus payments). 

Family Law: Ex-Wife’s Appeal Of “Needs Fees” Denial Was Not Successful

Family Law Judge Basically Found Both Parties Could Bear Expenses And Ex-Wife Overlitigated The Case.

            Marriage of Vu and Fearn, Case No. G054234 (4^th Dist., Div. 3 Feb. 8, 2018) (unpublished) was a situation where the family law judge awarded $15,000 in Family Code section 271 sanctions against both former spouses but also denied ex-wife’s request for $50,000 in “needs-based” fees under Family Code sections 2030/2032.   Ex-wife was confounded, choosing to appeal—but to no avail on the “needs-based” issue.  The record below showed no abuse of discretion given the financial situation of each party (including gifts, use of credit card by a friend, and fee rent by parents) and given ex-wife’s “over litigation” of the case through multiple attorneys. 

            Justice Fybel authored the 3-0 panel decision. 

Family Law: Court Of Appeal Affirms 2030/2032 Attorney Fee Award Of $60,000 To Ex-Wife And 271 Sanctions Award Of $3,000 Against Ex-Wife

Husband Had Sought $37,000 Sanctions Award.

            Ex-husband, who had spent $165,000 in fees on his own dissolution attorney and had paid ex-wife $119,650 through previous pendent lite attorney’s fees, was frustrated when the trial judge ordered him to pay yet an additional $60,000 in 2030/2032 fees to wife and only sanctioned her $3,000 under section 271 for three instances of misconduct (rather than the $37,000 he requested).

            In his subsequent appeal in Marriage of Blas and Rivera, Case No. D066720 (4^th Dist., Div. 2 Jan. 25, 2018) (unpublished), he was unable to obtain a reversal based on not being able to surmount the deferential abuse of discretion standard of review.  Ex-wife certainly had more limited resources from a financial perspective, and the lower court believed that even the $3,000 sanctions award would be a stretch for her given that she only had $3,000 cash in the bank.

            The 3-0 opinion was authored by Justice Richard T. Fields, who was confirmed to the 4/2 DCA in February 2017.

Family Law: $20,000 271 Sanctions Award Affirmed On Appeal

No Abuse Of Discretion Demonstrated.

            In re Marriage of Rafipoor, Case Nos. G053243/G053665 (4^th Dist., Div. 3 Jan. 18, 2018) (unpublished) involved a situation where ex-husband was assessed with Family Code section 271 sanctions in the amount of $20,000.  Among other things, the record suggested that husband made a motion with his finger across his throat while certain witnesses were testifying in court.  The appellate court agreed that harassment of witnesses is bad faith conduct hampering cooperation between parties and attorneys for section 271 sanctions purposes.  271 sanctions award was affirmed here based on failure to show the award was an abuse of discretion.  Presiding Justice O’Leary authored the 3-0 panel decision.

Family Law: $2,000 Needs-Based Fees Award To Ex-Wife Sustained On Appeal

Record Did Show Disparity In Income Between Spouses.

            In Marriage of Cueva, Case No. D071913 (4^th Dist., Div. 1 Jan. 9, 2018) (unpublished), the family law judge awarded ex-wife Family Code section 2030 needs-based fees of $2,000 after a 9 ½ year marriage involving five children.  Father’s challenges to the award were unavailing on appeal.  Mother was a “stay at home” mom, father made much more income as a truck driver (even after an interim unsuccessful stint as an insurance agent/financial advisor), and mother had to pay for basic living expenses.  Not to mention, the award only had to paid off at $50 per month. 

Family Law, Lien For Attorney Fees, Probate: Wife Had Authority Under Family Law Equal Management Principles To Engage Attorney For Personal Injuries Incurred By Incapacitated Husband

Also, In Contested Probate Proceedings, An Evidentiary Hearing Is Required Unless Parties Stipulate To Using Affidavits Or Declarations.

            Maldonado v. Giblin, Case No. H041417 (6^th Dist. Dec. 27, 2017) (unpublished) is a prime example showing how appellate jurists are attuned to gender equality issues and legislative changes aimed at promoting such equality in the family law/probate context.

            What happened in this case was that husband became incapacitated following a personal injury accident, leading wife to engage an initial attorney to represent husband and with the retainer agreement containing an attorney’s lien provision.  Initial attorney did some work and obtained a preliminary settlement offer from the tortfeasor defendant’s  insurance carrier.  Later, wife retained discharged first attorney and engaged a second attorney filing litigation which resulted in a $1 million settlement with the insurance carrier.  However, in a contested probate proceeding arising out of wife’s appointment as temporary co-conservator with husband’s son, the lower court approved the settlement (including fees to the second attorney) but denied first attorney’s request for fees based on the attorney’s lien and quantum meruit recovery.  The primary basis for rejecting first attorney’s claims was that the wife did not have agency authority for husband to enter into a retainer agreement with first attorney.

            The trial court’s conclusions were reversed on appeal so that first attorney gets another shot at compensation for his prior services.

            First attorney did have a reasonable expectation of compensation because wife, just like husband, had equal management powers when another spouse becomes incapacitated as far as entering into a client-attorney relationship to redress personal injuries to the other spouse.  It found that 1975 family legislative amendments gave husband and wives equal management abilities, such that older cases only recognizing male supremacy were antiquated in nature, establishing the basis for an attorney’s lien by first attorney.

            There also was a procedural issue addressed by the appellate court in order to provide assistance on remand.  First of all, the attorney’s lien dispute could be raised in the probate proceeding (unlike the situation where a separate action is necessary in a civil litigation context) because of the lower court’s unique position to approve a settlement entered into by a guardian or a conservator (the situation here).  Next, it was error for the lower court to decide the contested probate dispute on the basis of just declarations, without an evidentiary hearing under Probate Code section 1022 unless the parties stipulate otherwise. 

Homeowners Association, Family Law, Prevailing Party: Appellate Courts Deal With Trifecta Of Fees Issues In Unpublished November 9 Opinions

Homeowners Association—Anaheim Hills Planned Community Assn. v. Chen, Case No. G053128 (4^th Dist., Div. 3 Nov. 9, 2017) (Unpublished).

            In this first one, homeowner appealed a trial court’s award of appellate fees to HOA in a CC&R dispute under both a prior settlement agreement and the Davis-Stirling Act.  The appellate fee award of $36,830.50 was affirmed.   An action to enforce a settlement agreement does permit a fee award under the Davis-Stirling Act.  (Rancho Mirage Country Club Homeowners Assn. v. Hazelbaker, 2 Cal.App.5^th 252, 259-260 (2016).)  HOA also did prevail, given that it forced the homeowner to remedy the CC&R violations—its primary litigation objective.  Justice Moore authored the decision on behalf of a 3-0 panel.

Family Law—Marriage of Aubry, Case No. E066624 (4^th Dist., Div. 2 Nov. 9, 2017) (Unpublished).

            The second one involved an ex-wife’s appeal of a needs-based $10,000 fees award to ex-husband under Family Code sections 2030 and 2032.  The award was reversed because the trial judge was unaware of a capped $6,000 fee arrangement between ex-wife and her counsel, it was unclear if consideration was given to any net income received by husband from assets, and it was unclear if the trial court considered wife’s monthly income.  These vagaries required a reverse and re-do by the court below.

Prevailing Party—Law Offices of Mark B. Plummer PC v. Bayuk, Case No. G053836 (4^th Dist., Div. 3 Nov. 9, 2017) (Unpublished).

            The last opinion in the trifecta reviewed here involved a battle between attorneys representing a client in various proceedings, with the appellant suing for more compensation before finally admitting at trial that he basically received what was owed, leading the trial judge to enter judgment in favor of the opposing attorneys.  Opposing attorneys were granted fees under a contractual fees clause in an operative settlement agreement between some of the parties (although the provision could encompass even another non-party attorney to the settlement agreement).  The trial judge’s entry of an actual judgment precluded appellant’s argument that it really voluntarily the dismissed the matter so as to rise to the Santisas bar to fee recovery.  Appellant argued that attorneys represented themselves in defense, but the record showed that one co-defendant represented another defendant attorney and that another attorney had independent representation (both completely proper), dashing hopes that a Trope v. Katz defense would apply.  Justice Moore also authored this one on behalf of the 4/3 panel.   

Family Law: Ex-Wife Properly Denied Attorney’s Fees Under Settlement Stipulation Fees Clause And Family Code Provisions

Contract Provision Was Discretionary, And Ex-Husband Lacked Ability To Pay Under Family Code Provisions.

            Ex-wife obviously was frustrated in Marriage of Rice, Case No. G053287 (4^th Dist., Div. 3 Sept. 29, 2017) (unpublished) because she did seek attorney’s fees from ex-husband for child/spousal support issues but was denied them after multiple hearings before family law judges.  The most recent fee denial was affirmed on appeal.  She relied on a dissolution settlement provision providing that the court may award costs and fees relating to obligation issues; however, the 4/3 DCA panel observed the word “may” is permissive, quoting from a prior decision indicating that this word means “you can do if you want, but you aren’t being forced to.”  (Woolls v. Superior Court, 127 Cal.App.4^th 197, 208 (2005).)  She also asked for awards of fees under Family Code section 3557 (fee shifting in child support disputes) and section 271 (fees as sanctions for not trying to resolve the dissolution case), but the trial judge’s determination that ex-husband could not pay—a mandatory factor for consideration under both provisions—was no abuse of discretion.  Justice Moore was the author of this decision. 

Family Law: 2030/2032 Fee Award To Ex-Husband Reversed Because Based On Ex-Wife’s Assumed Ability To Obtain A Loan To Pay Award To Ex-Husband

Award Must Be Based On Actual Income And Assets.

            Although unpublished, Marriage of Aquino, Case No. B279406 (2d Dist., Div. 5 Sept. 29, 2017) (unpublished) dealt with the issue of whether a trial judge could order a needs-based fee award under Family Code sections 2030/2032 based on the perception that one ex-spouse could obtain a loan to fund the fee award. 

            The facts of the case are that ex-wife had no income stream and substantial monthly expenses based on opening up her own investment company, but the trial court believed she could obtain a loan and ordered her to pay 2030/2032 fees to ex-husband.  The 2/5 DCA reversed, finding that the award needed to be based on actual income and/or assets, with the panel observing it could locate no published California decision basing a 2030/2032 fee award on a spouse’s assumed ability to obtain a loan.

Family Law: Ex-Husband’s Request For Section 271 Sanctions Correctly Denied Under Abuse Of Discretion Standard

Ex-Husband Was Contentious And Ex-Wife Had Already Contributed Significant Moneys To Level The Playing Field.

            With respect to Family Code section 271 sanctions, equities often determine who wins or loses on these requests.  Marriage of Madigan, Case No. G052559 (4^th Dist., Div. 3 Sept. 20, 2017) (unpublished) illustrates this well, a 3-0 panel decision authored by Acting Presiding Justice Moore.

            In this one, ex-wife certainly had better financial resources than ex-husband, based on a thirteen marriage producing three minor children.  However, both sides collectively spent $600,000 in divorce attorney’s fees, with ex-wife previously contributing $90,500 toward some of ex-husband’s attorney’s fees.  Eventually, the family law judge denied ex-husband’s and ex-wife’s requests for sanctions under Family Code section 271.  Ex-wife’s conduct did not meet the sanctions standard; while ex-husband’s conduct did, his financial condition did not allow for an award (given that financial conditions are considered in a 271 sanctions award).  Ex-husband appealed the sanctions denial.

            The 4/3 DCA affirmed.  Even though ex-husband had much less personal resources, his conduct was found to have shown “inflexibility and confrontation”, at odds with granting a 271 sanctions award in his favor.  One further reason supporting a sanctions denial was ex-wife’s earlier significant contribution to his fees (with the trial judge believing a big chunk of this being enough to resolve the entire dissolution proceeding if handled correctly).  

Family Law: Failure To Award Attorney’s Fees For Breach Of Fiduciary Duty Determination Under Family Code Section 1101(g) Required Remand

Wife Had Been Found To Violate Family Law Restraining Order By Selling Sale Of Assets After Separatio

            In Marriage of Bracken and Gibson, Case No. A145337 (1^st Dist., Div. 4 Sept. 7, 2017) (unpublished), wife was found to violate the family law restraining order which occurs when a dissolution petition is served by selling certain stock options after separation from husband and without court consent.  The family law judge awarded husband $1,353 for this breach of fiduciary duty, but did not award attorney’s fees associated with the recovery of this additional amount.   That was error under Family Code section 1101(g), because the court lacks discretion and must award an appropriate amount of fees in such a context.  The remedy was a remand for the family court to fix the fees for this breach of fiduciary duty.

Family Law: Wife’s “Self Help” Withdrawal Of $7.1 Million From Joint Bank Accounts Justified Family Code Section 271 Sanctions Of $50,000

Wife Was Provided Adequate Notice Of Sanctions Request, Even Though Section 271 Provides No Specificity On Type/Timing Of Notice

                This post on Youssefyeh v. Melamed, Case No. B269371 (2d Dist., Div. 3 July 27, 2017) (unpublished) falls in the category that “you cannot make this stuff up.”

                Here, wife used “self help” by withdrawing $7.1 million from joint bank accounts based on her fear that she would be left without financial resources, even though this withdrawal was in violation of the automatic temporary restraining order contained in the family law summons and a domestic violence restraining order obtained by husband.  Husband gave notice of seeking Family Code section 271 sanctions in ex parte papers submitted in late September 2015, which request was set for a hearing later in November 2015—a hearing at which wife appeared and argued against sanctions.  The trial judge ordered 271 sanctions of $50,000 against wife, payable in 45 days.

                Wife’s appeal was unsuccessful.  Although section 271 does not specify the form of notice nor the amount of notice that must be provided, wife certainly had adequate notice of the sanctions request and appeared to challenge it—due process was satisfied.  With respect to the merits of the award, the “self help” by wife did not impress the appellate court either, with wife conceding her actions caused husband to incur not insignificant litigation costs.  Section 271 sanctions were justified under these circumstances.

Family Law: Section 271 Sanctions Not Awardable To Non-Parties To Family Law Litigation, Such As An Attorney For A Party

 

$88,000 Sanctions Award To A Party’s Former Attorney Reversed On Appeal.

     In Webb v. Webb, Case No. B269311 (2d Dist., Div. 8 June 13, 2017) (published), the Second District, Division 8 held that Family Code section 271 sanctions only applies to parties in a family law litigation case, not allowing for awards to non-parties—reversing an $88,000 sanctions award to a party’s former counsel (a non-party).

Family Law: $250,000 271 Sanction Affirmed In Contentious Divorce Case Between Two High Profile Attorneys

 

Abuse Of Discretion Standard Not Overcome By Appealing Ex-Wife.

     Marriage of Gregora and Feldman, Case No. B269587 (2d Dist., Div. 8 May 8, 2017) (unpublished) was a high profile divorce case involving Los Angeles attorneys, where ex-wife lost a key breach of fiduciary claim, prompting the trial court to impose a sanction against her to the tune of $250,000 under Family Code section 271 (the sanctions was an award of partial attorney’s fees incurred by ex-husband). Ex-wife appealed, but to no avail. The appellate court observed that the sanctions award was no abuse of discretion given that (1) ex-wife issued 450 subpoenas on third parties yielding over 100,000 pages of documents; (2) she deposed ex-husband’s ex-wife, several partners in his firm, and numerous accountants; (3) ex-wife spent $3.6 million on the case and ex-husband spent $2.1 million; and (3) ex-wife lost on the breach of fiduciary claim.

Family Law: $5,000 Needs-Based Fee Award Reversed For Failure To Consider Proper Factors

 

Bad Litigation Tactics Alone Will Not Support 2030/2032 Award.

 

    Although the $5,000 fee award to husband may seem paltry based on the needs-based anchors of Family Code section 2030/2032, it was reversed in Marriage of Overstreet, Case No. B271522 (2d Dist., Div. 1 Mar. 28, 2017) (unpublished). The reason is that the family law judge did not consider all of the 2030/2032 factors, focusing myopically only on the litigation tactics of the other side. This alone will not justify such a needs-based fee award.

Family Law/Reasonableness Of Fees: Trial Judge Awarding Only $15,000 In Fees And Costs Based On Requested $77,067.50 In Fees And $17,459.77 In Costs Was No Abuse Of Discretion

 

Deferential Standard Of Review Not Hurdled In This One.

    In Zauner v. Defterios, Case No. B271922 (2d Dist., Div. 6 Mar. 21, 2017) (unpublished), appellant sought needs-based fees in a child custody modification proceeding. She requested $77,067.50 in fees and $17,459.77 in costs, but was only awarded $10,000 in fees and $5,000 in costs.

    Her appeal of the award did not succeed.

    The trial judge found that appellant was seeking duplicative recovery of fees already paid and for billed services which were inconsistent with requested amounts. Although she argued that failure to award 100% of the requested needs-based fees was an abuse of discretion, the appellate court swatted away that argument by noting that reasonableness is still a consideration in this area of fee recovery. (Alan S. v. Superior Court, 172 Cal.App.4^th 238, 255 (2009).) Affirmed based on the failure to show an abuse of discretion.

Family Law: $412,485 Needs Based Fee Award In Wife’s Favor Affirmed, But $318,510 Fiduciary Breach Fee Award Remanded In Light Of Partial Reversal In Husband’s Favor

 

Needs Based Award Was Less Than 30% Of Wife's Fee Request Under Section 2030.

 

    In Marriage of Schleich, Case Nos. H039870/H041234 (6^th Dist. Feb. 8, 2017) (published), ex-husband suffered two adverse awards which were favorable to his ex-wife: (1) a needs-based fee award under Family Code section 2030 to the tune of $412,485 (ex-wife had requested over $1.543 million); and (2) a sanctions award under Family Code sections 1101(g) and 2107(c) for fiduciary duty breaches relating to separate and community assets to the tune of $318,510, prompting an appeal by ex-husband.

 

    The needs-based award was affirmed, because husband had the ability to pay and the lower court awarded less than 30% of ex-wife's requested fees.

 

    However, after determining that separate property and pre-separation community income fiduciary breaches could not give rise to sanctions under Family Code section 1101 and reversing 4 of 16 listed fiduciary duty violations, the Sixth District determined that section 1101(g), a mandatory fee statute, could not support a fee award as far as the 4 reversed breaches were concerned. However, section 2107(c) was an independent basis for sanctions, but the appellate court remanded for a re-examination of fees under this statutory provision given the reversal on the four alleged violations.

Family Law: Interesting Appellate Decision Involving Senior Husband And Wife Results In A Mixed Bag On Whether Attorney’s Fees And Sanctions Owed, And Against What Assets

 

Just Goes To Show You That Dissolutions Proceedings Have A Lot Of Legal And Equitable Issues, No Matter When You Get A Divorce At Any Stage Of Life.

     Greene County, Georgia.  Old couple who receive old-age pension assistance.  Fall, 1941.  Jack Delano, photographer.  Library of Congress.

     Murdock v. Murdock, Case No. B259694 (2d Dist., Div. 3 Jan. 26, 2017) (unpublished) is an interesting unpublished decision based on the span of germane dissolution issues, especially considering the case involved a divorce between a husband and wife who were California State University educators apparently parting ways in their 70’s. The case did involve a CalPERS retirement account issue given the parties’ ages. Maybe some of you readers are too young for this case, but some of us are not (other readers and blog contributors—blog contributors getting there).

     What happened here is that ex-husband was hit with $17,500 for breach of fiduciary duty that he impaired community property interests, leading to an award of expenses under Family Code section 1101(a). Ex-wife was also awarded “needs based” fees to the tune of $35,000. Finally, ex-husband suffered a Family Code section 271 sanctions award, payable even from his exempt retirement accounts.

     The appellate court reversed the community property impairment award, finding insufficient evidence supported it given that husband was dealing with separate property assets. The other two awards were affirmed, the needs-based award because the husband had superior cash resources but the 271 sanctions were improperly ordered to be paid out of husband’s exempt accounts.

Family Law: Needs-Based Fee Award Can Be Based On Age Of Needy Party

 

Fact That Needy Party Is Retired Can Be Considered In Needs-Based Analysis.

 

    In Marriage of McLain, Case No. E062884 (4^th Dist., Div. 2 Jan. 6, 2017) (published), $5,500 in needs-based Family Code section 2030/2032 attorney's fees were awarded in favor of a wife based on the fact she was 65 of age and had retired. The appellate court affirmed, determining this was an appropriate factor to consider.

Family Law: $680,000 Component Of Section 271 $767,781.23 Sanctions Award Reversed As A Matter Of Law

 

This Component Was Not Tethered To Fees And Costs, So Not Recoverable.

 

    We predict that Marriage of Sagonowky and Kekoa, Case Nos. 142866/A143234 (1^st Dist., Div. 5 Dec. 21, 2016) (partially published; sanctions award discussion published) is going to generate quite a stir in the family law sanctions arena and might be a candidate for California Supreme Court review.

 

    In this one, ex-wife was sanctioned a total of $767,781.23 under Family Code section 271 for driving up the costs of litigation and frustrating settlement efforts, with ex-wife not really arguing on appeal that the "merits" bases for the award were not present. However, on appeal, she did argue that $500,000 for general culpable conduct and $180,000 for causing a reduction in the sales price of real property awarded to ex-husband were not properly awardable because they were not tethered to "attorney's fees and costs" recovery as limited under section 271.

 

    The 1/5 DCA agreed, reversing the $680,000 component as a matter of law. Section 271 was clear in its limitations such that the two pieces of the award were infirm because they were not tethered to fees and costs. In doing so, it distinguished cases such as Corona, Quay, Feldman, and Falcone and Fyke in the process, cases frequently cited as broadly allowing for imposition of section 271 sanctions.