Fourth District, Division 3 Also Has Some Comments on Systemic Problems Plaguing Family Law Courts in Orange County.
The next case is not only interesting for the legal issues discussed, but equally poignant in the way its weaves in a discussion of problems plaguing family law dockets in Orange County (and likely other California counties as well). Presiding Justice Sills, who steers administration of the Fourth District, Division 3, authored the decision in Alan T.S., Jr. v. Superior Court (Mary T.), Case No. GH041034 (4th Dist., Div. 3 Mar. 18, 2009) (certified for publication).
The case boiled down to the family judge’s determination to assess a fee award of $9,000 against an in pro per husband (out of a requested $35,000 fee request) and her striking about $3,000 (out of a requested $6,000 appellate costs request) from husband’s costs bill submitted after winning a prior appellate court reversal of a child custody order, with wife only having to pay the $3,000 costs award through $150 monthly installments. Both orders were reversed in a very detailed opinion written by Justice Sills on behalf of the 4/3 panel.
As to the $9,000 fee order, the Court of Appeal determined that the family law judge ignored some critical “need’ factors required under Family Code sections 2030 and 2032—with these provisions having been extensively examined in posts under our home page category “Family Law.” After observing that section 2030’s purpose is to ensure parity through a fair hearing with two sides equally represented (rather than just a redistribution of money from the greater income party), Justice Sills found that the lower court failed to consider the husband’s “need” factors, such as his own need to retain counsel or the expense side of his financial situation. (In re Marriage of Keech, 75 Cal.App.4th 860, 868 (1999); Fam. Code, sec. 2032(b).) In this particular case, the family law judge took a truncated approach rather than a “big picture” nuanced perspective in awarding fees—she ignored these circumstances found potentially important by the appellate court: (1) husband’s negative monthly cash flow of about $800; (2) the respective amounts of property owned by each side (wife had horses; no indication of equity in respective residences); (3) husband’s $1,800 monthly child support commitment; (4) contributions from new mates or partners to the respective households; and (5) wife’s incurrence of certain fees of a nature not reasonably necessary for the litigation (e.g., she had a large firm rack up a $35,000 fee request that included work on a lengthy informal writ reply and four hardship deduction hearings).
In fact, the appellate panel made law on one aspect of its discussion of the overturned $9,000 fee award. Under the right circumstances, Justice Sills indicated that family pendente lite fee requests might well justify the use of oral testimony rather than reliance on written papers alone, extending the rule of Elkins v. Superior Court, 41 Cal.4th 1337 (2007) [oral testimony should be allowable in family law trials] to pendente lite fee requests if the circumstances are right.
That brought the Court of Appeal to the decision halving husband’s appellate costs request. Because wife had relied on Code of Civil Procedure provisions in striking costs, the appellate panel clarified that appellate cost strike procedure is governed by California Rules of Court, rule 3.1700 (rather than Code of Civil Procedure section 1033.5). However, wife was granted penance because she did file some timely “objections” which the appellate court treated as the proper motion to tax/strike appellate costs for purposes of review. Wife’s sole objection was that husband failed to attach substantiation for his claimed appellate costs, but Justice Sills observed this is not required under Bach v. County of Butte, 215 Cal.App.3d 294, 308 (1989). However, this challenge could be entertained with respect to the veracity of husband’s costs memorandum. However, two legal errors still existed with respect to wife’s challenge: (1) the assertion of lack of substantiation was made in a subsequent pleading that was beyond the 15 day period for challenging the costs memorandum; and (2) wife relied on Code of Civil Procedure section 1033.5 in making her challenge, instead of the correct rule—California Rules of Court, rule 8.278(d)(2) [challenges to appellate costs, which must be presented to the appellate court in many instances]. Lastly, Justice Sills found no basis to sustain the family law judge’s order that wife could pay the appellate costs to husband in installments—costs on appeal are treated as a monetary judgment, with no authority allowing them to be paid off in incremental installments.
Justice Sills’ conclusion is very poignant: “There is a Dickensian quality to the litigation between Alan and Mary, but, alas, the facts are no more horrendous than those confronted by our Supreme Court in Elkins: Both cases involve pro pers thrashing around in an alien environment, where a local court had, as Elkins put it, elevated ‘efficiency and conservation of judicial resources’ over ‘the countervailing interests of litigants as well as the interest of the public in being afforded access to justice.’ [Citation omitted.] In each case, unfortunately, the motto ‘justice for all’ has come perilously close to ‘justice for those who can afford it.’” (Slip Opn., at pp. 26-27.) (BLOG OBSERVATION—Although the Family Code has some fee leveling provisions, this passage underscores our Mission Statement that the results of fee shifting, one way or the other, are what make or ruin litigants in many actions.)
BLOG UNDERVIEW—Justice Sills also quotes extensively from bold comments made by Orange County Superior Judge Francisco Firmat, current supervising judge of the Orange County Superior Court family law panel. Judge Firmat has indicated that (1) family law matters are protracted and made more expensive because dissolution trials are done in piecemeal matter over a period of weeks or months due to resource issues, and (2) family law matters are frequently tried by judges with little or no experience in the family law experience circle.
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