Family Law Awards: Court Of Appeal Reverses Family Code Section 2030 Award Against Husband Based On Consideration Of Erroneous Factors

Fourth District, Division 2 Finds Family Law Judge Relied on Inappropriate Factors.

     Here is one, even in this category, that we do not see often. A family law judge is reversed for considering inappropriate factors in awarding attorney’s fees to a wife under Family Code section 2030, the “needs” oriented fee-shifting statute. The lesson seems to be that where both spouses are equiposed in income and there is an error in factoring in expenses or other factors, a reversal may follow.

     In Marriage of Rue-Las, Case No. E045425 (4^th Dist., Div. 2 May 28, 2009) (unpublished), husband was ordered to pay wife $21,361.50 as his share of wife’s attorney’s fees under Family Code section 2030. Although reviewed under an abuse of discretion standard (In re Marriage of Cheriton, 92 Cal.App.4^th 269, 314 (2001)), the appellate panel reversed the fee award for two reasons.

     First, the fee award was based on the flawed “timeshare factor” used in a child support award. Husband had visited 28-30% of the time, not the 20% factor used by the family law judge.

     Second, husband did run an independent martial arts business, but it was “a labor of love.” The family law judge counted the revenue he received from this business, but did not take into account husband’s business expenses—costs which did not make it a very lucrative venture.

     These two factors, when combined, led to a reversal, especially because the record showed that spouses where both sheriff’s deputies and had roughly the same income/expenses. Given that both sides would have equal difficulty paying their own attorney’s fees, let alone the other party’s fees, a remand was necessary to make sure a “needs” award was justified under section 2030.