CALIFORNIA ATTORNEY'S FEES

Family Law: $10,000 271 Sanctions Award Affirmed On Appeal

Ex-Husband Filed Lots Of Motions And Did Not Provide Record Citations To Generate Traction On Appeal, Plus Ad Hominem Found Abhorrent.

            Marriage of Bulmer, Case No. B277266 (2d Dist., Div. 6 Sept. 18, 2017) (unpublished) may seem routine (and it somewhat is), but does contain some good guidance for any litigant trying to gain traction on appeal.  One message is not to make ad hominem attacks.

            Ex-husband lost a Family Code section 271 sanctions award to the tune of $10,000.  The bad part of the facts is that he attempted to modify certain pre-trial orders by filing 13 motions, all of which were denied.  On appeal, he challenged the 217 sanctions order.  The problem is that ex-husband provided no citation to the record, which was fatal to the appeal.  However, just as important, his ad hominem attacks on his ex-wife and her counsel were not viewed well, with the appellate court rejecting these attacks by quoting from a 2002 decision:  “Ad hominem arguments, of course, constitute one of the most common errors in logic:  Trying to win an argument by calling your opponent names . . . only shows the paucity of your own reasoning.”  (Huntington Beach City Council v. Superior Court, 94 Cal.App.4^th 1417, 1430 (2002).)  Huntington Beach was authored by former Presiding Justice David Sills of the 4/3 DCA. 

Family Law, Special Fee Shifting Statute: Lower Court Abused Its Discretion In Not Considering Two Fee Entitlement Statutes In Denying Domestic Violence Protection Act TRO Prevailing Party

 

Matter Remanded To Consider Fees Request Under Two Statutes.

    In Christner v. Sweeney, Case No. H040736 (6th Dist. June 19, 2015) (unpublished), an ex-boyfriend defendant defeated a TRO brought by plaintiff ex-girlfriend from a personal/business relationship under the Domestic Violence Protection Act.  The lower court then denied defendant’s request for fees of $49,812.10 under two potential fee-shifting statutes, Family Code sections 6344 and 271.

    The appellate court reversed.  The lower court did not believe statutory fee entitlement predicates had been presented, but defendant had done so in Judicial Council form responsive papers.  The matter had to be remanded for the trial judge to consider whether fees were proper under either or both statutes.

Family Law: Denial Of Attorney’s Fees To Ex-Wife Under Uniform Parentage Act Was No Abuse Of Discretion

 

Mother’s Trial Tactics And Income Weighted in Properly Denying Fees.

     Wood v. Fard, Case No. G048418 (4^th Dist., Div. 3 May 30, 2014), authored by Justice Aronson on behalf of a 3-0 panel, contains a nice discussion of the standards to be used in awarding attorney’s fees in child custody disputes under the Uniform Parentage Act, Fam. Code, §§ 7640, 7605. In essence, this is a discretionary fee-granting statute, containing many of the sample principles underlying needs-based fees under sections 2030/2032. (Kevin Q. v. Lauren W., 195 Cal.App.4^th633, 642-645 (2011) [4^th Dist., Div. 3].) Even a litigant’s trial tactics can be considered in the mix. Here, boiled down, mother was found to have taken unreasonable actions in disputes over the medical care for the child and she had enough income to fund legal efforts given that ex-husband was ordered to/did pay some prior fees towards her cause. Based on that, the lower court’s decision to deny a fee request at later stages was found to be no abuse of discretion under the Uniform Parentage Act.

Family Law Two-Fer: Trial Court Has Discretion To Terminate Pendente Lite Fee Order And Evidentiary Hearing On Fee Sanctions Request Can Be Decided On Written Declarations/Submissions

 

Marriage of Csupo, Case No. B227959 (2d Dist., Div. 1 Mar. 27, 2012) (unpub).

     In this one, the trial court terminated the husband’s obligation to continue paying attorney’s fees under a pendente lite order, a determination affirmed on appeal after husband paid $30,000 under the earlier $180,000 fee mandate, after wife apparently fired her prior attorneys, stipulated to a termination of the prior fee order, and drew the rancor of her prior counsel which were the ones to appeal the termination of the fee order. The problem here was that former attorneys had no vested right to pendente lite attorney’s fees. They relied on Family Code section 272(a)-(b), but that only dealt with enforcement of fee awards via execution procedures--something not in play given the fee termination order. Also, the lower court did have authority to reduce the award given that the firm substituted out of the case. (Schwartz v. Schwartz, 173 Cal.App.2d 455, 457 (1959).)

Lesso v. Andrzejewski, Case No. B225538 (2d Dist., Div. 5 Mar. 27, 2012) (unpub).

     The second opinion involved a husband appealing an order imposing $300,000 in monetary sanctions against him for discovery abuse, failure to comply with family law mandatory disclosure requirements, and Family Code section 271 sanctions. Interestingly enough, husband sought to seize the day by saying wife’s appeal should be dismissed under the disentitlement doctrine (maybe archane, but one that says an appeal can be dismissed discretionarily if a party fails to comply with lower courts), with the appellate court refusing to exercise its discretion as husband wanted based on the circumstances of record. Husband’s main challenge on appeal was that a live evidentiary hearing--such as ones in the T.V. shows we all see-- was mandated. Nope, because adjudication on written submissions is quite proper in these type of family law proceedings (In re Marriage of Falcone and Fyke, 203 Cal.App.4th 964 (2012)) and because husband also failed to comply with California Rules of Court requiring him to file a written statement specifying the nature/extent of the evidence proposed to be introduced as well as a reasonable time estimate for the hearing (Rule 3.1306(b)). Fee orders affirmed.

Family Law Two-Fer: Failure To Make Needs-Based Findings Was Not Reversible Error On Fee Award And Substantial Fee Award To Wife Under Premarital Settlement Agreement Was No Fluke

 

Marriage of Bader, Case No. G044876 (4^th Dist., Div. 3 Dec. 21, 2011) (Unpublished).

     In this one, husband appealed a $20,000 needs-based attorney's fees award to wife (out of a requested $25,000) under Family Code sections 2030/2032. Husband claimed that the award had to be reversed because no express findings were made on financial situation issues as required under these sections. The appellate court did agree that section 2030(a)(2), effective January 1, 2011, was amended to require express findings on the financial disparity between both sides in order to award fees. Although this was not done, the failure to do so was harmless in nature—after all, husband was a physician and wife was a hair stylist, with the proof below showing the economic disparity between the parties. Justice Ikola was the author of the 3-0 opinion reminding family practitioners and jurists of the requirement to now make express findings under these statutory provisions.

Marriage of Gehr, Case No. B226755 (2d Dist., Div. 2 Dec. 21, 2011) (Unpublished).

     Here, wife was awarded 80% of her requested attorney's fees primarily under a premarital settlement agreement, totaling about $239,000 through the course of trial work. Both sides appealed, husband saying too much and wife saying too little. Enough, said the unanimous appellate panel. The trial judge generously awarded fees under two fairly narrow provisions of a premarital settlement agreement, so no more was needed to be awarded. Wife also appeared to present conflicting financial information, so holding her responsible for 20% of her own fees was no error.

Family Law: Marital Settlement Agreement Fees Clause Trumped Needs-Based Fee Request

 

Contractual Bargain Resulted in a Waiver and Enforced.

     Marriage of Guilardi, Case No. H035037 (6th Dist. Nov. 7, 2011) (certified for publication) pitted the fees clause in a marital settlement agreement (MSA) against the Family Code section 2030 needs-based statutory scheme. The contractual bargain in the MSA won out.

     The MSA addressed property division and child custody issues following a 16 year marriage, including two other significant features: (a) the prevailing party in any post-MSA dispute was entitled to reasonable attorney’s fees and costs; and (b) each party relinquished any and all past, present, and future claims against the property or estate of the other party.

     Wife unsuccessfully attempted to set aisde the MSA, then moving for $157,650 in fees for attorney’s prior work and her efforts to set aside the MSA. The trial court determined that the broad MSA language was an implicit waiver of any claims and that it would be unjust to award fees where she unsuccessfully litigated an action to set aside the MSA.

     On appeal, the Sixth District affirmed. After noting a divergence in judicial authority of whether statutory counsel fees are available to the party unsuccessfully challenging an MSA, the appellate court determined that the broad MSA language precluded a fee award to wife, with no exception being allowed in the waiver of claims clause. Wife knowingly signed the MSA containing the waiver of her right to statutory fees such that there was no conflict between Family Code section 2030 and the agreement between the parties.

Family Law Awards: $25,000 Fee Award To Wife Affirmed Because Husband’s Noncompliance With Prior Orders Left Wife Without Resources

 

Needs Based Award to Wife Justified.

     In Marriage of Shannahan, Case No. D057453 (4th Dist., Div. 1 July 18, 2011) (unpublished), husband was ordered to pay $25,000 in attorney’s fees based on need to ex-wife’s counsel. Husband, after all, was an attorney, and appealed a previous fee award to wife without posting a bond--leaving wife without resources. Husband appealed the order, but was unsuccessful. The reason? You know you guessed it (or came close). Trial tactics employed by the parties may be addressed in a fee motion, In re Marriage of Drake, 53 Cal.App.4th 1139, 1167 (1997), and the tactics leaving wife without resources was properly weighted in the equation by the lower court when it came to fashioning the fee award. Beyond that, there was evidence of the parties’ financial disparity so as justify a needs award under Family Code section 2032.

Family Law: Needs-Based Attorney’s Fees Award Reversed For Failure To Explain Basis For Award

 

Alan S. Was the Anchor Here, Meaning that Some Record of Relevant Factor Analysis Is Necessary in Family Law Cases.

     Although unpublished, the next case seems to portend the importance of Alan S. v. Superior Court, 172 Cal.App.4th 238 (2009), a decision authored by (just retired) Justice Sills of the Fourth District, Division 3.

     The Third District in In re Marriage of Shurr, Case No. C063677 (3d Dist. June 28, 2011) (unpublished) reversed an award of over $18,000 in attorney’s fees under Family Code section 2030 to ex-wife. The reason? There was no explanation for the fee award or analysis of the relevant needs-based factors, as required under Alan S.

     BLOG UNDERVIEW--Alan S. did stress that no particular language is needed, although we can certainly argue that a mini-statement of decision or articulation of weighing needs-based factors is necessary. Clearly, something more than a simple grant or denial is necessary in family law cases, suggesting that the “no statement of decision” analysis is yielding to something less precise, but more than just a terse “grant or deny.” We will have to see how this plays out in this area. It will be interesting to see if Alan S. is complied with by a family law judge indicating that the needs-based factors were weighed, but no real analysis other than this statement. Stay tuned, our readers.

         Tuning Fork.  Wikipedia.

Family Law Awards: Recent Unpublished Decision Reviews Deadlines For Claiming Section 271 Fee Recovery

 

Second District, Division 6 Does So While Affirming $75,000 Sanctions Award.

     In Marriage of Lancashire, Case No. B217022 (2d Dist., Div. 6 May 23, 2011) (unpublished), the Second District, Division 6 discussed deadlines for bringing attorney’s fees motions based on sanctionable conduct of family law litigants under Family Code section 271 before it affirmed a $75,000 sanctions fee award to husband.

     Here is what the court had to say in a 3-0 opinion by Justice Yegan:

     *A 271 motion for attorney’s fees on appeal in affirming a prior sanctions award must be filed no later than 40 days after issuance of the remittitur (In re Marriage of Freeman, 132 Cal.App.4th 1, 7 (2005));

     *In a case involving false accusations of child abuse, 271 sanctions request must be filed within 60 days after service of notice of a judgment exonerating the litigant seeking sanctions or 180 days if no notice is sent (Robert J. v. Catherine D., 171 Cal.App.4th 1500, 1504 (2009)); and

     *A motion for pre-judgment fees for sanctionable conduct must be filed within the deadlines for filing a notice of appeal from the sanctions judgment order at issue pursuant to Cal.Rules of Court, rule 3.1702(b).

Family Law: Fourth District, Division Three Reverses Spousal Support Order While Affirming Award of Attorney’s Fees

The Court of Appeals Finds Trial Court’s Order “Puzzling”

     Husband and wife’s marriage dissolved in 1992.  In 2009, the now ex-husband filed an OSC to modify or terminate his spousal support obligation, because he planned to retire.  The trial court denied the OSC, while ordering the 66-year old ex-wife to make efforts to become self-supporting, and also ordering spousal support to be reduced after a period of one year.  The trial court also ordered ex-husband to pay $13,000 towards ex-wife’s attorney’s fees.  Ex-husband appealed, maintaining that the court’s order was an abuse of discretion, and that spousal support should have been terminated altogether.  In re Marriage of Horowitz, Case No. G043127  (4th Dist. Div. 3  4/4/11) (unpublished.)

Family Law: Non-Compliant Party Under Financial Disclosure Statutes Not Entitled To Award Of Fees As A Sanction

 

Second District, Division 3 Reverses $200,000 Award Under Family Code Section 2107(c), But Sustains $100,000 Fee Award Under Section 271.

     Facing a novel issue of statutory interpretation, the Second District, Division 3 in In re Marriage of Fong, Case No. B217038 (2d Dist., Div. 3 March 3, 2011) (certified for publication) decided that a wife who had not complied with her financial disclosure obligations could not seek an award of attorney’s fees as sanctions with noncompliant husband under Family Code section 2107(c). Even though section 2107(c) did not use the term “complying party” when mentioning who is entitled to fees, this limitation is implicit in the statute based on the prior references in section 2107(a), (b). In this regard, the appellate court accepted dicta from prior decisions indicating this was the correct interpretation of subdivision (c). This meant the trial court’s award of $200,000 in fees to wife under section 2107(c) had to be reversed.

Family Law: $5,000 Fee Award Under Family Code Section 271 Affirmed Under Deferential Abuse Of Discretion Standard

 

Lower Court Also Did Consider Wife’s Financial Condition in Rendering Award.

     Here is another Family Code section 271 award that was affirmed on appeal based on the abuse of discretion standard. This is a tough standard to surmount, as wife learned in challenging a $5,000 award to husband.

     In Marriage of Wolf, Case No. H035303 (6th Dist. Mar. 1, 2011) (unpublished), husband was awarded $5,000 (out of a requested $8,556 in incurred fees) under Family Code section 271, a provision designed to promote settlement and to encourage cooperation which will reduce the costs of litigation. Awards under this section are in the nature of a saction. (In re Marriage of Petropoulos, 91 Cal.App.4th 161, 177 (2001).) Wife appealed.

Family Law: $100,000 In Sanctions Under Family Code Section 271 Upheld On Appeal

 

Family Judge Does Not Have To Expressly State Whether Consideration Was Given to Financial Burdens.

     An ex-wife in In re Marriage of Loumena, Case Nos. H032608/H033027 (6th Dist. Feb. 8, 2011) (unpublished) was hit with a sanctions award of $100,000 (out of a requested $355,000, $250,000 of which comprised attorney’s fees) under Family Code section 271. This is the sanctions statute allowing imposition of fees and costs against a litigant in family law proceedings frustrating settlement, increasing litigation costs, and/or failing to cooperate, as long as the sanction does not impose an unreasonable financial burden on the sanctioned party. It was that last caveat that was at issue in Loumena.

     Wife did submit papers and proof that she was jobless, had no income, and had considerable debts. However, the trial court obviously rejected this because there were other indicia that she had received considerable sales proceeds from the sale of certain community property. Her main challenge was that the family law judge did not consider the financial burden factor because sanctions were imposed only upon the comment the judge “had considered” all of the briefing submitted by the parties. That sufficed, because “[w]ife cites no authority for the proposition that a sanctions order under Family Code section 271, subdivision (a) must expressly state that the court considered whether the award will impose an ‘unreasonable financial burden’ on the party against whom it is imposed.” (Slip Opn, at p. 17.)