Family Law: Ex-Husband’s Challenge To Denial Of $150,000 In Need-Based Fees Affirmed On Appeal

Both Sides Spent A Ton; Both Sides Had Income to Fight; Both Sides Got What They Got After Seven Years Of Litigation.

            Needs-based fees under Family Code sections 2030 and 2032 have to be based on a consideration of the total circumstances.  Some litigants ignore this basic reality, but Ettenger v. Ettenger, Case No. H044184 (6^th Dist. Jan. 13, 2010) (unpublished) reminds us that this is the reality in most situations.

            In this one, ex-husband spent $340,000 in the dissolution action (owing another $17,000), while ex-wife spent $400,000 (and owed another $18,000).  Yikes!  Ex-wife had the better cash-flow income, with ex-husband seeking another $150,000 in needs-based fees, a request denied by the lower court.

            That determination was affirmed by the Sixth District.  It sustained the lower court’s conclusions that (1) neither side lacked access to funds based on distributions made earlier in the case, (2) ex-wife did not unilaterally drive up the costs of litigation; and (3) both parties had contributed to the cost of the litigation.  The appellate court found nothing wrong in the denial of fees to ex-husband, independently finding that ex-husband had plenty of liquid of funds to engage counsel to fight in the dissolution—something he did, maybe not something which was prudent in the long run.  Finally, the lower court was not obligated to issue a statement of decision in ruling on a needs-based fee request or a Family Code section 271 sanctions request.  (In re Marriage of Fong, 193 Cal.App.4^th 278, 296 (2011) [section 271]); In re Marriage of Askmo, 85 Cal.App.4^th 1032, 1040 (2000) [pendente lite attorney’s fees].)