Equitable Estoppel Supported Affirming What Happened in Unique Facts Involving a False Claims Act Wrinkle.
Family Code section 3153 directs that counsel’s fees for a minor are to be paid either by the parties or by the county when it comes to compensating counsel appointed to represent a minor child. (In re Marriage of Lisi, 39 Cal.App.4th 1573, 1576 (1995).) So, does the trial court have discretion to reallocate fees during the course of the family law proceeding even if it impairs the father’s claim in a separate qui tam proceeding?
You betcha, said the Fifth District in a decision involving convoluted facts, Smith v. Karabinus, Case No, F068796 (5th Dist. Oct. 9, 2014) (unpublished).
A lower court initially specified that mother, not the superior court, should pay fees for appointed minor’s counsel. However, the appointed attorney billed the superior court, which paid rather than mother. Father, learning of the error, filed a False Claims Act case against counsel on behalf of California. Counsel filed a motion to correct the fee order to make it payable by superior court, a request that was granted after father intervened in the family law proceedings because such an order might undermine an element of his False Claims Act lawsuit.
The fee modification order was affirmed based on the Family Code statutory scheme that had no provision constituting a ban on reconsideration or modification of prior orders based on changed circumstances. Beyond that, equitable estoppel was at play, because a court clerk had led counsel to believe that the fees order would be revised to show payment would come from the superior court.