Family Law: No Abuse of Discretion In Trial Court’s Denial Of Need-Based Fees To Mother Where Clear Disparity Existed Between The Parties’ Ability To Obtain Counsel

Family Code Section 2030 Is Controlled By Section 2032, And Financial Resources Are Only One Factor To Consider In Determining Whether An Award Under Section 2030 Would Be Just And Reasonable.

            The trial court denied a $33,000 need-based attorney fees and costs request made by mother in a child custody dispute where it found a clear disparity existed between mother’s and father’s access to legal representation – with father having greater ability to pay for representation.  Mother appealed in Marriage of Rogers, Case No. G059810 (4^th Dist., Div. 3 June 20, 2022) (unpublished) – claiming that once the trial court found a disparity between the parties’ access to funds to retain counsel, it was required under Fam. Code section 2030 to make an attorney fee award in her favor, and that the trial court was punishing her for her personal shortcomings and relying on improper factors – her conduct that led to an emergency change in custody, the fact that father was the prevailing party, and whether the parties acted in good faith.

            In a 3-0 opinion authored by Presiding Justice O’Leary, the 4/3 DCA affirmed.  While section 2030 aims to ensure parity between the parties in family law actions in their ability to obtain counsel, it does not mandate that a trial court simply redistribute funds of the party with greater financial resources.  As has always been the case, section 2030 is controlled by section 2032, and financial resources are not the only factor for a trial court to consider in determining whether to make a section 2030 award.  Section 2032 requires that a fees award under section 2030 be “just and reasonable under the relative circumstances of the respective parties.” 

            Here, the appellate panel found, the trial court properly considered the totality of the circumstances in denying mother’s fee request – including the nature of the litigation, which father pursued for the protection of the well-being of the parties’ minor children, mother’s lack of compliance with the trial court’s orders, and the expenses brought about as a result of the litigation.  Although mother had less financial resources than father, her financial resources combined with her new husband’s resources afforded her the ability to pay her own attorney fees. She was able to retain counsel and to have competent legal representation throughout the proceedings.  Additionally, father carried the greater financial burden in this litigation – paying for mother’s alcohol evaluator, partial child custody investigation, the children’s attorney fees and therapist, and the costs of the monitor for mother’s visitations in addition to his own attorney fees.