Equivocal Reasoning That Wife “Might Prevail In A 2030 Argument, But Certainly Not Prevail Under A 271 Argument” Was Too Cryptic An Explanation.
In order to level the dissolution playing field where one spouse has a greater access to financial resources (so as to pay attorneys and forensic accountants), Family Code section 2030 allows a trial judge to order the more financially set spouse to pay attorney’s fees for the other spouse’s counsel during the course of a dissolution proceeding. When ruling on such a request, a family law judge must make three specific findings: (1) whether an award of fees and costs is appropriate; (2) whether there is a disparity in access to funds to retain counsel; and (3) whether one side is able to pay for legal representation of both parties. (§ 2030, subd. (a)(2); see also In re Marriage of Morton, 27 Cal.App.5th 1025, 1050 (2018).) The findings “must be explicit”; they may not be implicit. (Morton, 27 Cal.App.5th at 1050.)
In re Marriage of Nevai & Klemunes, Case No. C086584 (3d Dist. Dec. 29, 2020) (published) involved a situation where, when married, husband and wife enjoyed a high standard of living, owning several properties with high mortgages due to husband’s spending during the marriage. Husband had a good job, while wife quit work in 2005 to raise their child and never went back to work. After the dissolution proceeding was filed, husband made almost $16,000-18,000 per month (exclusive of bonuses) and lived with a girlfriend with a good job who contributed to household expenses, while wife claimed she had $10,000 in monthly expenses. Prior to trial, ex-husband agreed to pay $25,000 to ex-wife with respect to her attorney fee bill. Ex-wife forecasted spending $80,000 in divorce fees, requesting that husband pay half—another $25,000 in addition to the previous $15,000. Ex-husband did his own counter-salvo by requesting $24,000 in need-based fees and $4,000 for a forensic accountant, as well as seeking $10,000 in Family Code section 271 sanctions against ex-wife based on her litigation stances. The lower court ordered both sides to pay their own fees, expressly stating that wife “might prevail in a 2030 argument, but certainly not prevail under a 271 argument.”
The Third District reversed and remanded.
The family law judge’s cryptic remarks did show that there was an absence of the required findings or there was no proper weighing of the 2030 factors; “more was required,” the Third District decided in a 3-0 opinion authored by Justice Krause.
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