Appealability, Family Law: Trial Court’s Denial of Wife’s § 2030 Appellate Attorney Fees Reversed And Remanded For Consideration, But Appeal Of Denial Of Her Requested § 271 Sanctions For Appellate Attorney Fees Dismissed

Trial Court Abused Its Discretion By Denying Wife’s Need-Based Fees Request Until Completion Of Litigation, Where Such Request Requires Decision Within 15 Days Of The Hearing That Reflects Consideration Of Statutory Factors, But Trial Court’s Denial Of Requested Sanctions Until Completion Of Litigation Within Its Discretion.

            In Marriage of Franecke and Melkonian, Case No. A159776 (1^st Dist., Div. 4 October 30, 2020) (unpublished), wife sought § 271 sanctions and § 2030 needs-based attorney fees for fees she incurred in husband’s appeal stemming from the trial court’s judgment on reserved issues.  The judgment was partially reversed and remanded for determination as to whether husband met his burden of proof on separate property contribution claims – with the trial court determining husband had not met his burden on remand, and issuing an “Order After Hearing on Remand,” but not entering a new judgment. 

            The trial court denied wife’s § 271 sanctions and § 2030 needs-based request for appellate attorney fees without prejudice – finding the appeal was not over as the remanded issue was not finalized, and stating, “[t]he court will deal with the issue of fees in connection with that appeal when it is over.”  Wife appealed.

            As to denial of her needs-based fees request, wife argued that the trial court failed to consider the required statutory factors in its denial.  The 1/4 DCA agreed – finding the trial court had abused its discretion by denying wife’s needs-based request based on its policy of not awarding fees until the conclusion of litigation.  The trial court was required to consider the statutory factors and render a decision on the request within 15 days of the hearing (§ 2031(a)(2)) – with the decision reflecting consideration of the appropriate factors.  On remand, the appellate panel instructed the trial court to exercise its discretion considering the factors under §§ 2030 and 2032.

            However, the appellate panel dismissed wife’s appeal of the trial court’s denial without prejudice of her requested § 271 sanctions.  Unlike the trial court’s denial of wife’s § 2030 fees, which constituted an appealable collateral order, denial of a motion for sanctions is not a judgment, nor an appealable interlocutory order.  Pursuant to Code Civ. Proc., § 904.1(a)(1) and (2), there must first be an appealable judgment before one can take an appeal from an order made after an appealable judgment.  Here, the appellate court had previously partially reversed and remanded the trial court’s judgment – leaving no final judgment disposing of all the reserved issues between the parties, and requiring the entry of a new judgment which the trial court had not entered.  Additionally, the timing of a sanctions award is left to the trial court’s discretion to be awarded during or at the conclusion of the litigation.  No final determination had been made on wife’s request for sanctions – with the trial court indicating such determination would be made at the conclusion of the litigation.