Majority So Holds, But Dissent Argues Contention Forfeited and Section 1101(g) Needs Revision By the Legislature.
Here is an interesting one in the family law area, drawing a dissent by a former family law jurist that now sits on the appellate court.
In Marriage of Fossum, Case No. B214824 (2d Dist., Div. 1 Jan. 28, 2011) (certified for publication), a family law judge determined wife breached her statutory duty to her spouse under Family Code section 721(b) by taking a $24,000 cash advance on a credit card without disclosing the transaction to husband. The trial court refused to award husband fees under Family Code section 1101(g), which has mandatory "shall" language indicating that remedies do include "attorney's fees and court costs."
Husband successfully appealed the fee denial.
The mandatory "shall" language left no room for discretion, the majority held in reversing the refusal to award fees. The matter was remanded to determine the fees awardable due to wife's violation of section 721.
In dissent, Acting Presiding Justice Rothschild—who we believe used to be on the family law panel for some time in Los Angeles County Superior Court—opined that the section 1101(g) fee request had been forfeited. Aside from that, she had some interesting observations about the "anomalous" nature of section 1101(g). They were: (1) no other Family Code provisions had any mandatory fee shifting provisions; (2) it was unusual that wholly innocent violations of section 721 gave rise to mandatory fees when actions that were fraudulent, oppressive, or malicious only gave rise to discretionary fee awards; and (3) it was unlikely the Legislature intended to mandate fees for violations that were "merely technical and wholly innocent" in nature. She called for the Legislature to amend the statute to state that fee awards were discretionary for section 721 breaches.
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