Family Law Court Did Not Err In Considering Subsequent Income Disparity Information In Awarding Attorneys Fees Under Family Code Sections 2030 and 2032

Information Showing Less of an Income Disparity Properly Considering in Determining Amount of Fees Awardable to Mother For Prevailing in Prior Appeals.

            Under Family Code section 2030, the trial court has discretion to award attorney's fees in family law actions to ensure that each party has access to legal representation.  In determining whether one party should pay fees for another party, the family law court considers the respective incomes and needs of the parties and any factors affecting the parties' respective abilities to pay—including the parties' current incomes, assets, and abilities.  See Fam. Code, §§ 2030(a)(2), 2032(a) & (c).  Even if a party has the ability to pay, a disparity in respective circumstances may demonstrate relative need to shift the fee responsibility from one party to the other.  See In re Marriage of Drake, 53 Cal.App.4^th 1139, 1167 (1997).  However, as with most other fee awards, a trial court's determination under Family Code section 2030 is reviewed for abuse of discretion.  In re Marriage of Jovel, 49 Cal.App.4^th 575, 587 (1996).

            In In re Marriage of George (George III), Case No. A118205 (1^st Dist., Div. 5 Aug. 12, 2008) (unpublished), Mother had won two prior appeals, the first ordering Father to follow pay under child support guidelines and the second reversing a denial of attorney's fees to Mother for prevailing in both appeals.  On remand, the trial court awarded Mother $20,000 in attorney's fees (even though she had requested over $40,000).

            Mother appealed, and lost—the third time was not another charm.

            In fashioning the fee award, the trial court looked at 2006 income statements which showed a lower income disparity than the situation presented in prior income submissions made when the two appeals were prosecuted.  Mother argued that the trial court could only consider the pre-2006 income information. 

            "Mother is wrong," wrote Justice Simons, the author for a 3-0 panel (who has considerable family law experience in his past background).   "Our [prior George II] decision did not prohibit the trial court from considering updated income information on remand.  Mother presents no authority for the proposition that the trial court was required to consider any particular income information in awarding attorney fees.  Nor does she explain why the trial court abused its discretion in considering the 2006 income statements, other than to argue that the court did not comply with the remand instructions.  The trial court did not err."  (Slip Opn., at p. 6.)