Fourth District, Division One Denies Attorney’s Fees In a Divorce Action

Court of Appeal Sets Forth Factors to Be Weighed Under Family Code sections 2030 and 2032.

            In In re Marriage of Kline Jr., Case No. D051137 (4^th Dist., Div. 1 July 11, 2008) (unpublished), a panel of the San Diego-based appellate court reviewed the principles governing discretionary award of attorney’s fees in divorce proceedings.

            The Court of Appeal observed that, under Family Code sections 2030 and 2032, a trial court in a divorce proceeding may order payment of fees and costs as between the parties, based on their relative circumstances, to ensure parity of legal representation in an action.  This decision usually focuses “on a consideration of the parties’ respective incomes and needs and any factors affecting their respective abilities to pay.”  (Slip Opn., at p. 8.)  The appellate court reviews trial court fee rulings under these statutes through the deferential abuse of discretion prism.  (See In re Marriage of Sullivan, 37 Cal.3d 762, 768-769 (1984).) 

            In case one thinks that pocketbook alone is the sole factor being examined, the Fourth District, Division One put the kibosh on that notion.  Even though the primary factor in a fee determination is the relative circumstances of the parties, the trial court also examines a party’s conduct and litigation tactics for purposes of making a fee award.  (See, e.g., In re Marriage of Drake, 53 Cal.App.4^th 1139, 1167 (1997).) 

            Based on this deferential standard and the conflicting evidence presented in the case before it (including proof that suggested former wife was “hiding the ball” in some areas), the appellate court affirmed the trial court’s denial of fees to former wife under sections 2030 and 2032.