Wife’s Requests For Award Of Attorney Fees Under Family Code Sections 271 and 2030 Were Denied As Husband’s Conduct Did Not Warrant Sanctions Under Section 271, And No Disparity In Access To Funds Existed Between The Parties Under Section 2030.
In Marriage of Whooley, Case No. B277145 (2d Dist., Div. 3 February 26, 2019) (unpublished), Husband and Wife entered into a partial settlement agreement to divide certain property and bank accounts. The trial court then divided remaining assets/community property, with consideration to Husband’s employment as an attorney and Wife’s lack of employment that was not likely to change considering the substantial care she provided for the parties’ autistic son, and additionally ordered Husband to pay Wife child and spousal support.
In her trial brief, Wife requested attorney fees under Family Code sections 271 and 2030. Section 271 allows the trial court to impose fees and costs ‘in the nature of a sanction’ based on the conduct of a party or attorney who frustrates the policy of the law to promote settlement of litigation, and thereby reduce the cost of litigation, and does not require a showing of financial need. Wife claimed that Husband had escalated the litigation by disputing certain facts, but the trial court disagreed and denied her request for fees under section 271.
Under her needs-based section 2030 request for fees, Wife claimed that Husband would end up with substantially greater assets. In reaching a decision on her requested fees under this section, the trial court considered the parties’ income and need assessments, stipulated income and expense declarations, declarations and exhibits submitted regarding the fee request, reasonable living expenses and the division of property, and took into account that Wife would receive more than half of Husband’s income in child and spousal support and 25% of his bonus income. It determined that there was ‘no disparity between the parties in access to funds.’
In a later hearing, Wife made an additional request for $30,000 in future appellate fees and costs to retain another attorney. Six days before that hearing, Wife filed a late supplemental request for $230,080.90 in fees. The request for $30,000 was denied as Wife had not identified how her situation had changed to her detriment, and the supplemental request was disregarded due to the late filing.
On appeal, the 2/3 DCA agreed with the trial court’s findings and affirmed.
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