Family Law: $5,700 Family Code Section 2030 Borson Award To Ex-Wife Was No Abuse Of Discretion

Borson Challenge Rejected, With Record Showing Disparity In Assets Between Former Spouses.

            In Marriage of Swain, Case No. G058117 (4^th Dist., Div. 3 Aug. 3, 2020) (unpublished), ex-wife’s attorney was awarded $5,700 in Family Code section 2030 fees, payable by ex-husband to ex-wife, after her current attorney filed a request but was substituted out before the fee award was made.  Ex-husband appealed, but the 2030 order was affirmed.  First up was ex-husband’s argument that the family law judge had no jurisdiction to hear a Borson (In re Marriage of Borson, 37 Cal.App.3d 632 (1974)) request, which is one where a client-discharged attorney—with the client’s consent—may file a motion for an award of fees to attorney while the attorney is still of record, with the family court having discretion to set the amount of fees and deciding whether they are to be paid by the client or the opposing party.  That argument failed because the attorney substitution was filed after the Borson request was made such that the lower court had jurisdiction to hear it.  (In re Marriage of Erickson & Simpson, 141 Cal.App.4^th 707, 713-714 (2006).)  Although some information on Judicial Council forms was wrongly checked or omitted, there was no prejudice because the declarations and income/expense statements left no doubt about what was at issue.  Finally, the record did show that the lower court reviewed the billing statements, unlike the deliberate failure to review requiring a reversal under different facts in In re Marriage of Tharp, 188 Cal.App.4^th 1295, 1314-1315 (2010).  Justice Fybel authored the 3-0 panel opinion.