CALIFORNIA ATTORNEY'S FEES

Family Law: Family Code Sections 271 And 2030 Fee Awards To Two Ex-Wives, Though Substantial, Were No Abuse Of Discretion

271 Fees Of $400,000 And 2030 Fees Of $60,000 Affirmed On Appeal.

            Ex-husband in Marriage of Regalbuto, Case Nos. B310897/B310917 (2d Dist., Div. 3 Sept. 16, 2022) (unpublished) got a “double whammy” in a consolidated domestic violence restraining order (DVRO) trial against two ex-wives.  He lost the trial and, during the way and afterwards, the family law trial judge granted ex-wife Lotte $400,000 in Family Code section 271 fees out of a requested $462,000 (payable $80,000 yearly, with ex-husband missing the first installment) and granted ex-wife Susan $60,000 in Family Code section 2030 fees (out of a requested $130,000), diminishing the requested amounts after finding some “contributory negligence” by the two ex-wives.

            Husband appealed, claiming principally that he did not have the ability to pay and that loans/gifts from his parents should not be counted in the ability to pay analysis.  After invoking its discretion to not dismiss the appeal under the disentitlement doctrine for failing to make the first $80,000 payment to Lotte and allegedly not making child support payments (the latter being contested), the 2/3 DCA disagreed that ex-husband not have the ability to pay despite recognizing that the two fee awards were substantial in nature.  It found that the loans/gifts could be counted, as well as monthly trust distributions to ex-husband by his parents and his living rent free in his parents’ Santa Monica condominium transferred to them completely with no real explanation.  (In re Marriage of Smith, 242 Cal.App.4^th 529, 531-535 (2015).)  Susan was a freelance makeup artist, so there was a disparity in access to funds.  As far as the bottom-line math, ex-husband received about $140,000 in employment and parent funding and had yearly expenses for fees and child support of $180,000.  However, given the help from parents, the awards—though high—were no abuse of discretion in the end.

Family Law: Failure To Rule On Pendente Lite Family Code Section 2030 Early In A Proceeding Resulted In A Reversal Of Reserved Issues Where Self-Represented Wife Bungled Key Trial Issue

Failure To Rule Was Prejudicial, Leading To A Reversal.

            Marriage of Knox, Case No. F081092 (5^th Dist. Sept. 9, 2022) (published) is a blockbuster decision where a lower court’s failure to promptly rule on a self-represented ex-wife’s request for pendente lite Family Code section 2030 led to reversal on reserved issues when she bungled a key trial transmutation issue.  Based on the record, the failure to rule on a request for representation was prejudicial given that counsel would not have bungled the issue.  Quite a turnaround with a reversal on reserved issue and remand to rule on the section 2030 request.

            Here is the crux of the appellate court’s holding: “Section 2030 provides that family courts ‘shall ensure that each party has access to legal representation, including access early in the proceedings,’ by awarding pendente lite attorney fees when certain statutory conditions are met. (§ 2030, subd. (a)(1), italics added.) We interpret the phrase ‘shall ensure’ to mean family courts have a mandatory obligation to order a party to pay attorney fees of the other party when the circumstances specified in the statute exist. In addition, the reference to ‘access early in the proceedings’ and other statutory text means family courts must not unreasonably delay their ruling on a request for pendente lite attorney fees.”

Family Law: Section 271 Sanctions Request Must Be Timely Made, But Section 2030 Request Reversed Where It Appeared Ex-Husband Could Bear Fees For Both Sides

Trial Transcript Records Are Key In This Area.

            In Marriage of Jensen, Case No. H04948 (6^th Dist. Aug. 17, 2022) (unpublished), we picked up on these takeaways: (1) Family Code section 271 sanctions need to be timely requested during family law proceedings; and (2) Family Code section 2030 “needs” based awards need to comply with a three-prong express finding statutory requirement.  In this situation, the lower court did not properly indicate why ex-husband could not afford both parties’ fees—the third prong—so that the matter was reversed.  It was unclear whether it was outright reversed or remanded.

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.

Family Law: Marriage of Nakamoto and Hsu Now Published

Section 2030 Needs-Based Trial and Appellate Fees Denied To Husband.

            On May 7, 2022, we posted on the then unpublished decision of Marriage of Nakamoto and Hsu, Case No. G059102 (4^th Dist., Div. 3 May 4, 2022).  It decided to deny some further section 2020 trial fees and appellate fees to husband for overlitigating the case and filing appellate briefing which was conclusory in nature.  We can now report that the opinion was certified for publication on June 2, 2022. 

Family Law: Sixth District Finds No Abuse Of Discretion In Trial Court’s Imposition Of $10,000 In Family Code Section 271 Sanctions Against Wife For Failure To Comply With Court Orders

The Record “Unerringly” Demonstrated That Wife’s Refusal To Obey Court Orders Over A More Than Seven-Year Period Was Unreasonable And Unnecessarily Prolonged And Increased The Cost Of The Litigation.

            In Marriage of Butler, Case No. H049004 (6^th Dist., May 9, 2022) (unpublished), husband and wife entered into a stipulation which was entered as a court order in 2012 while their dissolution action was pending.  Pursuant to the stipulation, husband quitclaimed the parties’ residence to wife, but if wife failed to remove husband’s name from the loan on the residence, she was to quitclaim it back to the community for the sale of the residence.  Wife failed to comply with this stipulation and order, and failed to comply with new orders issued in 2016 that required her to deed the property back to the community and required that the residence be sold.  Finally, in 2021, after additional litigation, the trial court sanctioned wife $10,000 under Family Code section 271 for her “willful failure to comply” with orders, appointed the clerk of the court to sign the deed back to the community, and ordered the property sold. 

            With regard to the sanctions, wife argued on appeal that the trial court failed to consider the parties’ income, assets, and liabilities in imposing the sanctions against her, that her due process rights had been violated, and that the sanctions were not supported by evidence that she had unreasonably failed to comply with the trial court’s orders.  The Sixth District found no abuse of discretion and affirmed.  Family Code section 271 allows the trial court to impose sanctions as long as the award does not impose an unreasonable financial burden.  Here, the trial court ordered that the sanctions be paid out of the proceeds from the sale of the residence – which it reasonably could have concluded would not impose an unreasonable financial burden on wife.  The panel further found no basis to wife’s claim of due process violations as she had received adequate notice of husband’s sanctions request and had an opportunity to be heard on the issue.  Finally, as to wife’s claim that the sanctions were not supported by evidence, the Sixth District found the record “unerringly” demonstrated that wife’s refusal to obey court orders over a more than seven-year period was unreasonable and unnecessarily prolonged and increased the cost of the litigation.

Family Law: 4/3 DCA Affirms Trial Court’s Denial Of Husband’s Needs-Based Section 2030 Fees For $50,000 In Fees Incurred And $30,000 For Appellate Fees From Third-Parties Husband Claimed Owed A Community Asset Of $4 Million

Husband Incurred Attorney Fees Over And Above The Trial Court’s Previous Awards To Him Totaling $150,000 By Overlitigating The Case, And Failed To Provide The Trial Court With Reasonable Grounds For Appeal.

            Husband litigated a claim that his siblings and family-owned business entities owed him $4 million through the proceeding for dissolution of his marriage.  According to a transmutation agreement signed by husband on the couple’s wedding day, the $4 million was a community asset. On the final day of trial, husband and wife each moved for Family Code section 2030 needs-based attorney fees to be paid by siblings/entities.  The trial court had previously awarded husband a total of $150,000 in fees, but he sought another $50,000 for fees incurred over and above the $150,000.  Likewise, wife had previously been awarded a total of $125,000 in fees, but sought another $293,934.80 for incurred fees.  Additionally, husband and wife each sought fees to pursue appeals of the trial court’s ruling - $30,000 and $100,000 respectively.  The trial court denied their requests – finding each had failed to show their requests for recovery of incurred fees was reasonable.  Rather, the trial court found that the fees it had already awarded them were sufficient to fairly litigate the claim for the $4 million, but that husband and wife had overlitigated the case. As to the appellate fees, the trial court found each spouse had failed to show reasonable grounds for appeal.  Alternatively, the trial court also found that the indemnity provision in husband’s contract with siblings/entities, wherein husband’s agreement to indemnify siblings/entities included “all costs incurred and/or related to this action,” barred husband/wife from seeking the requested fees.  Husband appealed in Marriage of Nakamoto and Hsu, Case No. G059108 (4^th Dist., Div. 3 May 4, 2022) (unpublished).  Wife did not.

            The 4/3 DCA affirmed. In discussing section 2030 and its purpose, the panel cited Alan S. v. Superior Court, 172 Cal.App.4th 238, 251-252 (2009). “[T]he purpose of section 2030 is not the redistribution of money from the greater income party to the lesser income party. Its purpose is parity: a fair hearing with two sides equally represented. The idea is that both sides should have the opportunity to retain counsel, not just . . . the party with greater financial strength.”  Here, substantial evidence supported the trial court’s finding that husband had been awarded fees sufficient to fairly litigate the case, and had incurred additional fees by overlitigating the case. As such, the trial court’s denial of husband’s request to recover $50,000 in incurred fees was not arbitrary or capricious.  As to the trial court’s denial of appellate fees, the 4/3DCA found no abuse of discretion.  Husband’s grounds for appeal were conclusory and ignored evidence not favorable to his claims.  Finally, it was unnecessary for the panel to address the trial court’s alternative indemnity ruling based on its analysis of the trial court’s fee ruling.

BLOG UPDATE: We can now report that this opinion was certified for publication on June 2, 2022.

Family Law: No Abuse Of Discretion In Trial Court’s Denial Of Fees And Costs For Appeal Of Companion Case To Mother In Parentage Action Who Earned Significantly Less Than Father, But Remand Was In Order For Denial Of Needs-Based Fees For DVPA Action

Family Code Section 7605 Allows For Needs-Based Fee And Costs Awards In Parentage Proceedings, But Can Apply To Separate Domestic Violence Prevention Act Proceedings Where They Involve The Same Or Similar Subject Matter.

            The mother of a 12-year-old boy, who has been involved in a contested parentage action with the boy’s father for roughly the last 12 years, sought an award from father of $60,000 in attorney fees and $5,000 in costs.  Specifically, Mother sought $50,000 to retain counsel to appeal a companion case, $10,000 to retain counsel to prosecute Father for her claims under the Domestic Violence Prevention Act (“DVPA”) relating to his alleged hacking of her laptop, and $5,000 in costs for computer forensics work and subpoenas to support Mother’s accusations regarding her laptop.  When the trial court denied her requests – under Family Code §§ 2030, 7605, and 6344 – she appealed.

            The 4/3 DCA agreed with the trial court and affirmed with regard to Family Code §§ 2030 and 6344 in Douglas S. v. Jennifer E., Case No. G059942 (4^th Dist., Div. 3 April 29, 2022) (unpublished).  Although the trial court had previously determined Father made significantly more money than Mother, section 2030 was inapplicable as it allows for needs-based fee awards in actions for dissolution of marriage or legal separation, and neither the companion appellate case nor the DVPA case involved divorce or separation.  As to section 6344, which allows prevailing party fees and costs in domestic violence restraining order and protective order actions, Mother provided no proof that she had prevailed in a domestic violence restraining or protective order action except for the one addressed in the companion case for which she had already been awarded attorney fees.  Additionally, as to the $50,000 sought by Mother for the companion appeal, the trial court – in its broad discretion – determined that Father did not have the ability to pay that amount to Mother, and in such cases, appellate courts will not reverse absent a showing that no judge could reasonably have made the order. (In re Marriage of Falcone & Fyke, 203 Cal.App.4th 964, 975 (2012); In re Marriage of Winternitz, 235 Cal.App.4th 644, 657 (2015).)

            However, the 4/3 DCA reversed and remanded for further proceedings as to the fees and costs Mother sought in the DVPA proceeding as the panel found the trial court’s interpretation of section 7605 too restrictive.  The trial court had denied the DVPA proceeding fees and costs under section 7605 because the statute allows for a needs-based award of attorney fees and costs in a parentage proceeding, and a DVPA proceeding is not a parentage proceeding.  However, as set forth in C.T. v. K.W., 71 Cal.App.5th 679, 685 (2021) and N.S. v. D.M., 21 Cal.App.5th 1040, 1055 (2018), section 7605 can apply to separate DVPA proceedings that, as here, are “related” to the parentage action, where they “involve the same or similar subject matter.”

Family Law, Sanctions: No Abuse Of Discretion In Trial Court’s $37,500 Attorney Fees Award, Which Included A $7,500 Deduction Based On Wife’s Conduct, Against Husband In The Form Of Section 271 Sanctions

Trial Court Had Ensured Against Financial Burden On Husband By Ordering Payment Of The Sanctions Through $200 Monthly Increments, And Its Statement Of Decision Made Clear That The Trial Court Had Considered The Behavior Of Both Parties.

            Family Code section 271(a) – the purpose of which is to promote settlement and encourage cooperation – authorizes a trial court to “base an award of attorney’s fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.”  These attorneys’ fees and costs are imposed as a sanction under the broad discretion afforded the trial court.

            In Marriage of Bonner, Case No. D078148 (4^th Dist., Div. 1 April 22, 2022) (unpublished), husband appealed the $37,500 attorney fees award issued against him as a § 271 sanction, as well as the trial court’s ruling on his own dueling request for § 271 sanctions against wife. 

            Husband’s attempt to relitigate on appeal the issue of whether his conduct warranted sanctions, his claim that some of the $73,000 in attorney fees wife claimed to have incurred were unnecessary, and his claim that the sanctions order placed an unreasonable financial burden on him all proved unsuccessful.  Determination as to husband’s conduct fell within the trial court’s broad discretion and was not subject to reversal absent a showing that the trial court exceeded the bounds of reason. (In re Marriage of Rosevear, 65 Cal.App.4th 673, 682 (1998).)  Additionally, section 271 does not limit the trial court’s sanctions award by the type of attorney fees incurred by the other party (In re Marriage of Corona, 172 Cal.App.4th 1205, 1226 (2009)), and the trial court awarded wife considerably less than the $73,000 she claimed.  Finally, there was no merit to husband’s financial burden claim as the trial court ensured against such burden by ordering the sanctions to be paid in monthly increments of $250. 

            The trial court declined to issue $12,000 in section 271 sanctions against wife, but, based on wife’s conduct, did reduce by $7,500 the sanctions amount it would have otherwise awarded wife. Husband argued he was entitled to a higher amount, but the trial court’s Statement of Decision made clear that the trial court had considered the behavior of both parties.  Additionally, husband failed to demonstrate the reasonableness of the attorney fees he sought, and was not entitled to costs – such as travel costs – incurred during the litigation for which he was mostly self-represented. A self-represented litigant attorney is not entitled to fees recovery under § 271 because sanctions must be tethered to attorney fees and costs (In re Marriage of Erndt and Terhorst, 59 Cal.App.5th 898, 904 (2021) [discussed in our January 13, 2021 post), and a party’s travel costs are not attorney fees or costs that may be awarded under § 271 (Menezes v. McDaniel, 44 Cal.App.5th 340, 351 (2019) [discussed in our January 16, 2020 post].

            The 4/1 DCA did remand for recalculation, however, as the trial court had reduced the $37,500 sanctions award by $19,016.30 to account for an equalization payment the trial court determined wife owed to husband, but the record did not support the $19,016.30 calculation. 

Family Law: Appellate Court Affirms 80/20 Total Fee Division Between Husband And Wife Where Husband Had A Disparate Net Worth Variance

What Caught Our Eye On This One—Total Fees And Court Costs Were $7.5 Million Altogether!

            Marriage of Zucker, Case Nos. B281051 et al. (2d Dist., Div. 4 Mar. 3, 2022, modified Apr. 1, 2022) (partially published on invalidity of spousal support provision; fee discussion unpublished) involved a dissolution proceeding where the husband had a much more substantial net worth position than wife, who was unfortunately plagued by psychological problems before and during their marriage.  The trial judge’s determinations, which were for the most part affirmed except for a math correction, are not that glaring, but what caught our eye was the amount that can be spent in a contentious divorce case.  But, first, we do the technical discussion of the opinion.

            What happened here is that the trial court found a premarital agreement (PMA) was valid (a husband win), but it did invalidate the spousal support provision (a wife win).  Although there was a prevailing party PMA fees clause, the trial judge found there was no prevailing party given the mixed result, a determination affirmed by the appellate court. 

            The divorce action was intensively and exhaustively litigated by both sides, such that Family Code section 271 sanctions requests by both sides were properly denied.

            Based on wife’s financial disparity in net worth and net spendable income, it was not error to decide that an 80/20 division of fees was proper, with husband bearing the higher brunt of the load.

            What really caught our eye was this:  each side spent about $3.6 million in attorney’s fees and another $300,000 in court costs were altogether expended – a total of $7.5 million.  Wowzer!

Family Law: Family Code Section 2020 Denial Of Fees To Ex-Wife Was No Abuse Of Discretion Given The Record Created By Ex-Husband

2030 Fee Orders Are Guided By An Abuse Of Discretion Standard With Respect To The Parties’ Ability To Pay.

            Ex-wife, in Marriage of Ian W. and Margot H., Case No. A160486 (1^st Dist., Div. 4 Mar. 21, 2022) (unpublished), was under the misapprehension that Family Code section 2030 fees were mandatory in any event.  That notion was cleared up on appeal.  Although there was some disparity in financial resources, ex-husband showed he was tapped out via prior orders and expending $600,000 in dissolution fees.  The trial court denied ex-wife’s 2020 fee request without prejudice.  Her appeal was unsuccessful.  Ex-husband showed that he paid some substantial child support and ex-wife litigation expenses already, which justified the denial of fees—given that ex-husband went into debt to defend himself in the divorce proceedings. The fee denial, under the circumstances, was no abuse of discretion. 

Family Law: $33,500 Family Code Section 6344 Fee Award Was Properly Imposed

Due Process Was Provided, And Ability To Pay Did Not Need To Be Considered.

            In Khuwaja v. Ladak, Case No. B306355 (2d Dist., Div. 2 Mar. 15, 2022) (unpublished), a litigant was hit with a $33,500 fee award under Family Code section 6344(a), which allows a discretionary award of fees and costs to a prevailing party in a petition for a domestic violence restraining order (DVRO).  The other side appealed based on due process and ability to pay grounds.  The appellate court affirmed.  The fee request was set for a noticed hearing, and the aggrieved party opposed, so no due process problem existed.  Section 6344(a), unlike subdivision (b), does not contain any ability to pay consideration, only that the litigant prevail—even though the trial court has discretion to grant in the first instance.  Ability to pay was not a factor here, even though it was not properly raised in the opposition anyway.

Family Law: Trial Court’s Denial Of Additional Attorney Fees Award To Husband Affirmed Despite Failure To Make Explicit Findings Under Section 2030

Failure To Make Required Findings Under Family Code Section 2030 Requires Reversal Only Where A Reasonable Probability Exists That A More Favorable Result To The Appealing Party Would Have Been Reached If Explicit Findings Were Made

            In Marriage of Callas, Case No. C093353 (3^rd Dist., March 8, 2022) (unpublished), husband who had been awarded Family Code § 2030 fees sought reversal of the trial court’s decision to deny him an additional attorney’s fees award because the trial court failed to make the required findings as to financial disparity and whether an award of fees is appropriate. 

            The Third District affirmed.  Based on the earlier fees award to husband, the trial court impliedly found a financial disparity between husband and wife even though it failed to make explicit findings under section 2030.  That implied finding was not challenged by either party, and husband did not claim the earlier award was unjust or unreasonable at the time it was awarded – nor did he do so on appeal.  Additionally, husband failed to show that a reasonable probability exists that he would have been awarded additional fees if the trial court had made explicit findings under section 2030. (In re Marriage of Morton, 27 Cal.App.5^th 1025, 1051 (2018).)

Family Law: Trial Court’s Award Of $28,000 In Attorney Fees And $2,000 For Court Reporter Costs As Sanctions Against Wife For Breach Of Fiduciary Duty Affirmed On Appeal Even Though Husband’s Moving Papers Did Not Address The Breach

Exceptions To The General Rule That A Court May Consider Only The Grounds For Relief Specified In A Notice Of Motion, Or Request For Order, Applied In This Case.

            In Marriage of Torres, Case No. D078469 (4^th Dist., Div. 1 February 25, 2022) (unpublished), wife appealed the trial court’s order awarding husband $28,000 in attorney fees and $2,000 for court reporter costs as sanctions for breach of fiduciary duty – arguing that her right to due process was violated by the trial court’s order because husband did not request the fees/costs, and had not pled breach of fiduciary duty in his moving papers.  The 4/1 DCA disagreed and affirmed the trial court’s order.

            This case fell within two exceptions to the general rule that a court may consider only the grounds for relief specified in a notice of motion (or request for order in family court) – that failure to include a ground in the notice does not preclude relief if that ground was specified in the supporting papers or was raised without objection at the hearing on the motion. (Fredrickson v. Superior Court, 38 Cal.2d 593, 598 (1952); Lohman v. Lohman, 29 Cal.2d 144, 151 (1946); Kinda v. Carpenter, 247 Cal.App.4th 1268, 1277 (2016); Luri v. Greenwald, 107 Cal.App.4th 1119, 1126-1127 (2003).)  Husband addressed wife’s breach of fiduciary duty in a supplemental declaration and memorandum when he became aware of it – which the trial court deemed as serving as the “functional equivalent” of amending the request for order.  Additionally, husband’s attorney raised the issue of wife’s breach of fiduciary duty in an opening statement and questioned her extensively on the issue – with no objection from wife’s attorney.

Family Law: No Abuse Of Discretion In Trial Court’s Award Of One-Half Of Wife’s Requested Needs-Based Attorney Fees, And Wife Failed To Show Prejudice Regarding The Trial Court’s Failure To Make Express Findings Under § 2030

“Just For Right Now” Award Meant Wife Could Ask For More Down The Road, And Wife Had Burden Of Demonstrating She Was Prejudiced By Trial Court’s Failure To Make Express Findings.

            In Marriage of Davda and Tejeda, Case No. B310091 (2d Dist., Div. 6 February 23, 2022) (unpublished), Wife appealed trial court’s order awarding her with one-half of the $10,000 she requested in Fam. Code § 2030 attorney’s fees to challenge limitations in a premarital agreement – arguing that the $5,000 award did not create parity in the parties’ financial abilities to obtain legal representation, and that the trial court had failed to make the required express findings, under  Fam. Code § 2030(a)(2), regarding the parties’ respective finances and needs.

            The 2/6 DCA affirmed.  As to the amount of the trial court’s award, there was no abuse of discretion.  The panel found the award reasonable given that discovery was ongoing and the trial court stated that Wife may “ask for more” as the award was “just for right now.” As to the express findings, Wife did not meet her burden of demonstrating prejudice regarding the lack of express findings.  (In re Marriage of Morton, 27 Cal.App.5th 1025, 1051 (2018) [harmless error test where express findings not made pursuant to section 2030].)

Family Law, Fee Clause Interpretation: Fee Clauses In Dissolution Proceeding Did Not Preclude Ex-Wife’s Recovery Of Fees In Subsequent Domestic Violence Prevention Act Proceeding

Case Remanded On Ex-Wife’s Request For $337,236 In Fees For DVPA Proceeding.

            Where a litigant is involved with classic contractual interpretation of a fees clause without any conflicting extrinsic evidence, the result can be a de novo review shocker as revealed in Marriage of Fischer, Case No. A160179 (1^st Dist., Div. 2 February 8, 2022) (unpublished). 

            In this one, ex-wife prevailed in a DVPA proceeding against ex-husband despite the existence of an earlier dissolution agreement with allocation of how attorney’s fees were to be resolved.  However, nothing in the agreement or hearings specified that the dissolution agreement applied to the subsequent DVPA proceeding where wife prevailed and sought $337,236 in attorney’s fees.  The lower court denied fees, but the appellate court reversed after scouring the record and determining that the distinct DVPA proceeding was not encompassed within the dissolution agreement provisions with respect to fees.  So, the matter was remanded with a potential bright upside for ex-wife given the lack of conflicting extrinsic parol evidence.

Family Law, Sanctions: Sixth District Affirms Trial Court’s Imposition Of $2,520 In Section 271 Sanctions Against Husband And Denial Of Husband’s Request For $100 Million In Sanctions Against Wife And Her Attorney

Husband’s Conclusory Assertions Of Trial Court Error With No Record On Appeal, No Supporting Argument Nor Legal Authority, And His Failure To Have Followed Statutory Procedure In The Lower Court Doomed His Appeal.

            In Marriage of Joe and Lee, Case No. H047392 (6^th Dist., January 7, 2022) (unpublished), the trial court awarded wife $2,520 in Family Code § 271 sanctions for attorney fees she incurred in defending against a set-aside motion brought by husband – finding husband’s set-aside motion was submitted without supporting factual or legal basis. Additionally, the trial court denied husband’s request for section 271 and Code Civ. Proc. § 128.5 sanctions against wife and her attorney due to husband’s failure to satisfy procedural prerequisites and to substantiate his claims.  Husband appealed, but the Sixth District affirmed.

            As to the § 271 sanctions awarded to wife, the panel found no abuse of discretion. Husband failed not only to provide meaningful argument or legal authority to support his claims of trial court error, but also failed to provide the panel with a record on appeal that would allow review of the chain of events underlying his claim of error by not including the set-aside motion nor the documentation for the underlying fees and costs order he sought to set aside. As the panel explained, “a conclusory assertion of error is inadequate to satisfy the appellant’s burden to establish prejudicial error warranting reversal and will not prevail on appeal.” (Jameson v. Desta, 5 Cal.5th 594, 608–609 (2018); Ewald v. Nationstar Mortgage, LLC, 13 Cal.App.5th 947, 948 (2017).)

            With regard to the $100 million husband sought in sanctions, plus another $5 million in punitive damages, against wife and her attorney for bad faith behaviors, perjury, forgery, and libeling and defaming husband, the appellate panel found the trial court’s decision was “amply” supported by the record. Husband’s sanctions request, embedded in a responsive declaration to wife’s motion for sanctions failed to comply with the “safe-harbor” Code Civ. Proc. § 128.7(c)(1) provision, and exhibits attached to his responsive declaration did not support his allegations.

Family Law: Stipulated Judgment Not Mentioning Pending Sanctions Issues Did Not Deprive Family Law Judge Of Ability To Issue Family Code Section 271 Sanctions

Sanctions and Vexatious Litigant Issues Not Foreclosed By A Settlement Or Dismissal Via Settlement/Judgment.

            In Marriage of Patel and Bhatia, Case No. B307926 (2d Dist., Div. 3 Dec. 14, 2021) (unpublished), an ex-husband was sanctioned for $5,000 under Family Code section 271 [designed to penalize litigants not trying to settle or multiplying proceedings in a dissolution case] and declared to be a vexatious litigant.  Ex-husband had reached a stipulated judgment with ex-wife, with nothing mentioning the pending sanctions/vexatious litigant motions.  He appealed, arguing that the stipulated judgment/settlement deprived the lower court of ability to rule on the other pending requests, including the 271 sanctions motion.  The 2/3 DCA disagreed.  Adopting analogous reasoning from Pittman v. Beck Park Apartments Ltd., 20 Cal.App.5^th 1009 (2d Dist., Div. 7 2018), the appellate court determined that these post-dismissal issues could be entertained by the lower court, including the sanctions order.

            BLOB OBSERVATION—We now observe that a different division of the Second District has now endorsed the reasoning in Pittman.  We will note that the First District, Division 3, did so, earlier this year, in a published decision.  (Manhan v. Gallagher, 62 Cal.App.5^th 504, 510 (2021) [reviewed in our March 29, 2021 post].)

Family Law: Celebrity Chef Cat Cora Had To Pay Attorney’s Fees Of $444,000 To Her Ex-Wife

Lower Court Did Not Abuse Its Discretion In Appointing A Receiver To Help Enforce Spousal And Child Support Issues.

            Any fans of HGTV likely know of Catherine (Cat) Cora, a well-known celebrity chef.  In 2017, her marriage to Jennifer Cora was dissolved, with the lower court ordering Cat to pay $8,118 in monthly child support for four children, $9,500 in spousal support to Jennifer (who stayed at home with the children while Cat worked outside the house), and $440,000 to Jennifer’s divorce attorney.  Cat eventually paid the $444k fee award, but she claimed not being able to afford the support in light of the pandemic.  The lower court appointed a receiver in order to assist in the collection of the support awards, results all affirmed on appeal in Cora v. Cora, Case No. B308834 (2d Dist., Div. 6 Dec. 14, 2021) (unpublished). 

Family Law: Lower Court Properly Denied Respondent Prevailing Party Attorney’s Fees Under Family Code Section 6344(a) Because Petitioner Obtained Relief In A Separate Criminal Case

Section 6334(a) Fees Are Discretionary Even If Respondent Was A Prevailing Party.

            In Bennett v. Rivers, Case No. B301211 (2d Dist., Div. 3 Oct. 6, 2021) (unpublished), a respondent did prevail (although the lower court technically erred in concluding otherwise) when petitioner dismissed a domestic violence restraining order petition after she obtained a criminal protective order against respondent in a separate criminal proceeding.  The lower court denied respondent’s request for prevailing party attorney’s fees under Family Code section 6344(a). 

            The appellate court affirmed, determining that it was harmless error to not declare the respondent a prevailing party because the fee request was properly denied anyway.  Section 6344(a) fee requests are a discretionary call for the trial judge, with he or she having the ability to deny on any reasonable ground deemed to be just.  In contrast, section 6344(b) is a mandatory fee-shifting statute requiring reasonable fees to be granted to a prevailing petitioner.  Here, there was no abuse of discretion because petitioner obtained her relief in a criminal forum such that denying fees was an appropriate exercise of discretion. 

Appealability, Deadlines, Family Law: Ex-Husband’s Appeals Of Postjudgment Fee Orders Doomed By Untimeliness Of Appeal On One Order And Lack of Merit On The Other Two.

Pay Attention to Appellate Deadlines, If You Want To Preserve Challenges.

            In Marriage of Mhanna and Hage, Case Nos. H045078 et al. (6^th Dist. Sept. 24, 2021) (unpublished), ex-husband challenged three attorney fees orders: (1) a first order awarding fees to ex-wife under Family Code section 271 and 2030 to the tune of $80,000; (2) a second order denying his motion to set aside the fee order; and (3) an order to enforce the fee order through a QDRO procedure.  He did not win any of his challenges.  With respect to the first order, the 271 sanctions order was appealable, and he blew the longest 180-day deadline in which to appeal. He argued that the appeal was extended based on the denied set aside motion, but no authorities were provided to support that motion and, even if it was proper, he blew the 90-day deadline after that motion was denied.  On the second order, husband provided no adequate record for review, and he was given enough time to prosecute for due process purposes.  On the third order, the QDRO request was ultimately denied such that he was not aggrieved from what happened before.

Family Law, Fee Clause Interpretation: Wife Properly Allowed Section 217 Sanctions Against Husband For Divorce Decree Enforcement Purposes

However, Lower Court Properly Denied Her Fees On Husband’s Prior Efforts To Set Aside The Martial Settlement Agreement.

            In Marriage of Mirza, Case Nos. G057613 et seq. (4^th Dist., Div. 3 Sept. 1, 2021) (unpublished), husband and wife entered into a marital settlement agreement and divorce decree based upon the agreement.  Husband then attempted to set aside the MSA and decree, but he was ultimately unsuccessful.  The lower court denied wife’s fees relating to husband’s efforts to set aside the divorce decree, but the court did grant wife sanctions of $100,000 under Family Code section 271 to enforce the divorce decree after the set aside effort did not resonate.  The 4/3 DCA, in an opinion authored by Justice Goethals, affirmed.  A nice “line” was drawn by the family law judge, with the set aside efforts not clearly falling within the MSA and with husband’s set aside attempt to rescind being a discretionary call on how to adjust the equities.  However, wife’s subsequent efforts relating to the divorce decree were justified such that the $100,000 award was sustained on appeal.

Family Law: Section 271 Sanction Of $85,000 Reversed And Remanded For Determination Of Whether Imposition Of Sanction Would Constitute An Unreasonable Financial Burden

Before Issuing Sanctions Under Family Code § 271, A Trial Court Is Required To Consider The Parties’ Incomes, Assets And Liabilities, And Cannot Impose Sanctions That Constitute An Unreasonable Financial Burden On The Sanctioned Party.

            In Marriage of Luu and Avritch, Case No. A161935 (1^st Dist., Div. 1 June 29, 2021) (unpublished), the trial court sanctioned ex-wife $85,000 under § 271(a) after repeatedly warning her that the relief she sought was beyond that required under the terms of the parties’ dissolution judgment, that had been entered about two years earlier, and that it would impose sanctions.

            The 1/1 DCA reversed.  Section 271(a) allows the trial court to award attorney fees and costs, in the form of a sanction, against a party frustrating the policy of the law to promote settlement and reduce the cost of litigation.  However, while the imposition of sanctions under § 271 is left to the discretion of the trial court, § 271(a) requires the trial court to “take into consideration all evidence concerning the parties’ incomes, assets, and liabilities.”  Additionally, the trial court is not permitted to impose a sanction under § 271 that would impose an unreasonable financial burden on the sanctioned party.  Because evidence presented at the trial court hearing indicated that ex-wife was unable to pay the imposed sanction based on her current financial situation, and because the trial court had no evidence regarding ex-wife’s current income and assets, a remand was in order with directions that the trial court determine whether the sanction would impose an unreasonable financial burden on ex-wife.

Family Law: Increase Of Monthly Child Support From $989 To $10,658 And $20,000 Attorney Fees Award To Wife Reversed On Appeal

Trial Court Adopted Wife’s DissoMaster Report To Calculate Awards, But It Reflected Wife’s Income At A Level Contradicted By Attachments To Her Incomplete Income And Expense Declaration And Lacked Supporting Documentation.

            In Marriage of Behrend, Case No. B305380 (2d Dist., Div. 3 June 22, 2021) (unpublished), the trial court granted wife’s request for a modification to monthly child support payments – increasing them from $989 to $10,658 – and ordered $20,000 of wife’s attorney fees to be paid by husband.  Husband appealed.

            The 2/4 DCA reversed without prejudice – finding no substantial evidence to support the DissoMaster’s input data that wife’s monthly income was only $2,625 where evidence showed her income at a minimum to be an average of $9,500 per month.  On remand, the panel instructed that the trial court could not proceed on wife’s instant Request for Order, but that wife was free to file a new RFO for child support modification based upon current data, with an accurate and complete Income and Expense Declaration and supporting documentation.

            Because an award of attorney fees, pursuant to Family Code § 2030, is related to the parties’ respective financial circumstances, the fees award was also reversed.  However, the panel also noted that the trial court failed to make express findings as required by § 2030(a)(2) – providing a separate basis for reversal of the fees award.  The panel instructed that the trial court may reconsider the fees issue on remand – after redetermining the child support issue based on a new RFO being filed by wife.

Family Law, Probate, Sanctions: Lower Court Properly Sanctioned Putative Spouse’s Attorney $3,617.50 Under CCP § 128.7 For Filing A Frivolous Putative Spouse Petition

Putative Spouse Failed To Show She Had A Legal Marriage With The Respondent Under Indian Law, Based On A Res Judicata Finding In A Prior Conservatorship Petition Proceeding.

            The problem for putative spouse and her attorney in Nijjar v. Nijjar, Case No. F078265 (5^th Dist. June 10, 2021) (unpublished) is that they earlier lost a conservatorship position by which she claimed to be the lawful spouse of the proposed conservatee under Indian law.  In the earlier proceeding, there were various inconsistencies in her and other witnesses’ testimony such that the trial judge found no competent evidence that a legal marriage took place between the two.  Losing putative conservator then filed a putative spouse petition, which triggered respondent (the winning putative conservatee in the previous proceeding) to send a Code of Civil Procedure section 128.7 motion.  The safe harbor period expired such that respondent filed the 128.7 motion, including a request for sanctions against petitioner’s attorney, and a request for dismissal of the putative spouse petition.  The lower court granted the 128.7 motion, dismissed the petition, and imposed monetary sanctions on petitioner’s attorney in the amount of $3,617.50.

            Even though no appeal was taken from the judgment of dismissal (given that the sanctions were below the $5,000 appealability threshold of CCP § 904(a)(11), (12)), the Fifth District went ahead as treating the appeal from the judgment of dismissal given that everyone briefed the merits and respondent did not move to dismiss the appeal.  Also, even though better practice was for the aggrieved attorney to appeal, notices of appeal are to be liberally construed to include the attorney who filed the appeal on behalf of a party.

            That brought the appellate court to the merits of the 128.7 sanctions order.  The principal problem was that the “no legal marriage” finding in the conservatorship proceeding had res judicata effect in the putative spouse petition proceeding.  But there was more.  Petitioner’s good faith belief in the validity of the marriage was not supported and, even under the “good faith” test of Family Code section 377.60(b), the evidence was not there, especially given the findings in the conservatorship proceeding.  With respect to showing improper purpose prong of section 128.7, documents showed that petitioner had a history of filing repetitive pleadings to reargue positions she had lost earlier.  The sanctions order was affirmed.

BLOG OBSERVATION—This unpublished opinion also had some instructive points on what should and should not be included in an appellant’s appendix, not to mention some formatting requirements.  (We would remind readers that e-filing is now mandatory in the DCAs, and you have to benchmark items in the appendix—which requires extra work and attention.)

Family Law: $4,500 Attorney’s Fees Award Reversed, Without Prejudice For Renewal, Based On Claiming On A Different Section Than Section 271

Litigant Will Get Another Shot At It.

            In In re Marriage of Orr and Traina, Case No. H046090 (6^th Dist. June 1, 2021) (unpublished), a litigant won a $4,500 attorney’s fees award as a sanction under Family Code section 271 against the other side.  That was reversed and remanded, without prejudice, because litigant only claimed the fees under CCP § 128.7.  Litigant got another shot at it upon remand.

Family Law, Probate: Husband Of Spendthrift Trust’s Beneficiary, Successfully Joining Trustee To Dissolution Proceeding, Potentially Entitled To Needs-Based Fees Even If No Bad Faith Demonstrated Against Trustee

Collision Between Family Law And Probate Principles Came Out In Favor Of Section 2030.

            In Marriage of Wendt and Pullen, Case No. C084083 (3d Dist. Apr. 28, 2021) (published), the Third District encountered the intersection of Family Code section 2030’s need-based fees award statute with Probate Code/spendthrift provisions relating to trust administration practices (including that fees are frequently not awarded unless bad faith is demonstrated against a trustee).  What happened in this case is that Mr. Pullen, the former husband of a wife who was the trust beneficiary, successfully moved to join the trust and trustee to the dissolution action based on certain child and spousal support claims.  He did ask for section 2030 needs-based fees, which was denied because the family law judge believed that bad faith of the trustee was a necessary requirement.  The Third District reversed, finding that section 2030 prevailed over probate principles given that no bad faith by the trustee is required to obtain 2030 fees.  Beyond that, Indiana law (the choice of law for trust administration issues) and California law were not different in concluding that spendthrift trusts can be ordered to pay routine trust administration costs, including 2030 fee requests.  Lower court’s 2030 fee request reversed, but the appellate court remanded to engage in the classic needs-based analysis.

Family Law: Grandfather In Custody Battle With Grandson’s Father Loses Appeal Of Trial Court’s Orders That He Pay Needs-Based Attorney Fees Of $66,820 For Father’s Attorney, Plus An Additional $137,010 For Grandson’s Court-Appointed Attorney

Grandfather, Who Paid Almost $500,000 To His Own Attorneys, Stipulated That He Could Afford To Pay Any Reasonable Amount Of Attorney Fees – Even Into The Hundreds Of Thousands Of Dollars – While Father’s Income & Expense Declarations Indicated A Monthly Income Of Only About $2,100.

            After his daughter’s health deteriorated, grandfather stepped in her place in a highly contentious custody battle against grandson’s father – with grandfather seeking nonparent custody of grandson in Robert I. v. Alisa B., Case No. A157943 (1^st Dist., Div. 2 March 29, 2021) (unpublished).  Trial did not go grandfather’s way and the trial court awarded custody to grandson’s father.  On appeal, however, grandfather contested only the trial court’s orders on attorneys’ fees.

            The trial court, before trial, had ordered grandfather to advance $10,000 in attorney fees to father under the provisions of the Uniform Parentage Act (Family Code § 7600, et. seq.), plus another $25,000 through a later interim order, due to the disparity between grandfather’s and father’s ability to retain counsel.  Finally, in its statement of decision, the trial court ordered grandfather to pay father’s attorney fees of $31,820 and granted grandson’s court-appointed counsel’s motion for an order requiring grandfather to pay his fees – to the tune of another $137,010.

            As to the fee awards to father, grandfather argued that the trial court lacked authority to award the initial $10,000 because father had not requested fees and had also failed to file a current Income and Expense Declaration at that point.  Grandfather also argued that the trial court abused its discretion in ordering the interim award, and the final award at the conclusion of trial because the Income and Expense Declarations filed by father at those times were deficient. 

            Moving to his challenges to the fee award to grandson’s court-appointed counsel, grandfather argued that the trial court had acted in excess of its jurisdiction by awarding the fees without complying with statutory requirements, and had erred by failing to analyze the parties’ financial circumstances in making the award.

            The 1/2 DCA affirmed.  The trial court had properly issued an order to show cause (Fam. Code § 7605(e)) and considered the sworn testimony of father regarding his income before making the initial order.  As to the remaining awards to father, grandfather cited no authority suggesting legal error to award attorney fees in the absence of a perfect Income and Expense Declaration.  As to the fees awarded to grandson’s counsel, the panel found that it would have been preferable for the trial court to have determined reasonable compensation sooner, but that California Rules of Court, Rule 5.241(a)(1)(B) allowed the trial court to make that determination at the time it determined the parties’ ability to pay.

            In the end, father’s monthly income was approximately $2,100, while grandfather had stipulated that that he could pay any reasonable amount of fees, even into the hundreds of thousands of dollars, and had paid his own attorneys just shy of $500,000.  With the purpose behind an award of attorney’s fees, pursuant to the Uniform Parentage Act, being to level the playing field and insure each party has access to legal representation, the panel found no error, nor abuse of discretion.

 

Family Law: $50,000 Section 271 Sanctions Award Against Ex-Husband Affirmed On Appeal

Zero Child Support Payments Did Not Excuse Other Conduct During The Family Law Case As Justification For Sanctions Award.

            In Marriage of Whiteaker, Case No. B303969 (2d Dist., Div. 6 Mar. 23, 2021) (unpublished), ex-husband was ordered to pay Family Code section 271 sanctions of $50,000 to ex-wife even though he had to pay zero child support payments based on certain past disputes.  Husband contended the section 271 award was unwarranted based on the “zero” child support ruling, but the 2/6 DCA disagreed.  The problem here was that husband had some suspicious business expenses suggesting that he did have the funds to pay the 271 sanctions, augmented by the lower court’s perception that he was a “combative co-parent” with respect to certain actions in the dissolution case.  Sanctions award affirmed, with this case showing that a broader view of litigation efforts in family law cases frequently drive, as well as justify, these types of awards. 

Family Law, Seriously: $7,325 Sanctions Award Under Section 271 Affirmed Where Ex-Wife Failed To Sign Stipulated Judgment After Agreeing To Written Settlement Terms

Postjudgment Activities Are Covered Under Section 271.

            This next case, Marriage of Randazzo, Case No. E073891 (4^th Dist., Div. 2 Feb. 23, 2021) (unpublished), falls under our “SERIOUSLY” new category which we have added to our blog.

            What happened here, in brief, was that ex-wife moved to set aside a judgment entered after she refused to sign a stipulated judgment based on a written settlement agreement to which she agreed.  The family law judge was not impressed, sanctioning her $7,325 in Family Code section 271 fees for not attempting to resolve the dispute as required in dissolution matters.

            Nothing in section 271 makes it inapplicable to postjudgment proceedings unless the court previously reserved jurisdiction to award future sanctions in the judgment.  There was no such language in the judgment, such that the trial judge had jurisdiction to award sanctions. 

            Seriously ….

Family Law: No Abuse Of Discretion In Trial Court’s $50,000 Award To Husband In Interim Needs-Based Attorney Fees Where Wife Has A Permanent Restraining Order Against Husband And Claims Of Domestic Violence

Nothing In Family Code Section 2030 Absolutely Prohibits A Trial Court From Awarding Interim Attorney Fees Where There Is Documented Evidence Of A History Of Domestic Abuse.

            In Marriage of Sangha, Case No. D077062 (4^th Dist., Div. 1 February 22, 2021) (unpublished), wife was not happy when the trial court awarded her husband – against whom she had a permanent restraining order and claims of domestic violence - $50,000 out of a requested $70,000 in § 2030 interim attorney fees. 

            On appeal, wife did not challenge the trial court’s determination of need or ability to pay, but argued that the trial court erred in excluding her evidence of domestic violence, and that evidence of past domestic violence prohibited the trial court from awarding fees to husband.  The 4/1 DCA disagreed – affirming the award.

            Nothing in § 2030 prohibits a trial court from exercising its broad discretion and awarding interim attorney fees where there is documented evidence of a history of domestic abuse.  Substantial evidence concerning husband’s need and wife’s ability to pay supported the trial court’s determination that $50,000 in fees was warranted.  Indeed, the trial court had admitted some domestic violence evidence – taking judicial notice of wife’s restraining order against husband.  However, although considering evidence of domestic violence, the trial court gave it little weight in awarding the interim fees “to ensure each party has access to legal representation.”  This was no abuse of discretion.  And while the trial court found the domestic violence and restraining order had little impact on the needs-based fees request, it cautioned the parties that the evidence of domestic violence could play a greater role in later proceedings – such as a determination of spousal support.

Family Law: $75,000 Breach-Of-Fiduciary Duty Sanction Under Family Code Section 1101(g) Reversed Based On Lack Of Competent Evidence

Make Sure Your Supporting Evidence Gets Properly Admitted, With Judicial Notice Not Likely To Get The Job Done!

            The Fifth District in Marriage of Patterson, Case No. F076753 (5^th Dist. Feb. 9, 2021) (unpublished) reversed a Family Code section 1101(g) $75,000 sanctions award—mainly for attorney’s fees—in favor of ex-husband and against ex-wife.  The reason was simple:  lack of competent evidentiary support.  The declaration indicating ex-husband paid $75,000, the predicate of the award, was not admitted into evidence (even though filed in court, an act which does not automatically mean it was actually received into evidence) and not properly judicially noticed in the matter.  So, a remand was ordered, with nothing preventing the reintroduction of the income and expense declaration so as to provide an evidentiary foundation for any future sanctions award.

Family Law: $5,000 Sanctions Award Under Family Code Section 271 Affirmed On Appeal

No Abuse Of Discretion Based On Limited Record.

            In Rybolt v. Riley, Case No. C087877 (3d Dist. Jan. 26, 2021) (unpublished), ex-husband appealed a Family Code section 271 award of $5,000, payable in monthly $300 installments.  Because this was a limited judgment roll appeal, nothing showed that the lower court failed to review relative financial resources.  End of the matter, affirmed, based on the limited record presented upon review.

Family Law, Sanctions: Trial Court’s Award To Attorney Husband Of $800 In Attorney Fees In The Nature Of Sanctions Under Section 271 Reversed As A Matter Of Law

Self-Represented Attorney Husband Incurred No Fees To Which The Section 271 Sanctions Must Be Tethered.

            Family Code § 271, subdivision (a), provides that “the court may base an award of attorney’s fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. An award of attorney’s fees and costs pursuant to this section is in the nature of a sanction.”  However, as the 1/3 DCA concluded in the next case, “section 271 mandates that sanctions be ‘tethered’ to attorney fees and costs.”

            In Marriage of Erndt & Terhorst, Case No. A157876 (1^st Dist., Div. 3 January 11, 2021) (partially published – fees as sanctions discussion published), the trial court directed husband to prepare a stipulated judgment based on the settlement entered into between husband and wife as recited in open court.  The settlement agreement included an equal division of the community portion of wife’s retirement plan.  However, wife had omitted her retirement plan’s survivor benefits – believing that if the survivor benefit were not mentioned, husband’s right to it would terminate upon entry of the judgment of dissolution.  When husband learned of the omission, he included it as an omitted asset under Family Code § 2556 – awarding each party survivor benefits in relation to their share of the awarded community interest.  Wife refused to sign, so husband, who was now self-represented, went back to the trial court seeking a survivor benefit award – with the trial court granting husband’s request and directing the stipulated judgment to include the award. 

            When wife continued to refuse to sign the stipulated judgment, husband returned to the trial court seeking to have the stipulated judgment signed by the trial court elisor, $6,102 in attorney fees, $180 in costs, and § 271 sanctions against wife for her repeated refusal to follow court orders and sign the stipulated judgment.  Wife finally complied with the court’s direction and signed the stipulated judgment in open court.  The trial court then awarded husband sanctions of $180 in costs and $800 in reasonable attorney fees for husband’s preparation for and attendance at that day’s hearing.

            Wife appealed, and the 1/3 DCA reversed the $800 portion of the awarded sanctions – concluding that § 271 sanctions must be tethered to attorney fees and costs.  (Menezes v. McDaniel, 44 Cal.App.5^th 340, 350 (2019) [discussed in our January 16, 2020 post]; Sagonowsky v. Kekoa, 6 Cal.App.5th 1142, 1153 (2016) [misconduct over and beyond fees/costs actually incurred not within reach of section 271].)  Because husband was self-represented by the time he sought sanction, he incurred no fees in preparing for and attending the hearing.  Additionally, California courts have interpreted “attorney fees” to mean exactly what it says in the context of sanctions under Code of Civil Procedure section 128.7 and in the context of contractual attorney fees awarded under Civil Code section 1717 – with sanctions in the form of attorney fees and reasonable attorney fees not available to self-represented litigants who have not incurred or become liable for such fees.

Family Law: Lower Court’s Failure To Specifically Make Explicit Findings Under Family Code Section 2030 As To Ex-Wife’s Needs-Based Request Necessitated A Remand

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.5^th 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. 

Family Law: $1,225 Section 271 Sanctions Award Reversed As A Matter Of Law

No Due Process Was Satisfied And Ex-Husband Had No Ability To Pay.

            Family law practitioners should pay attention to Mar v. Ligne, Case No. A158768 (1^st Dist., Div. 2 Dec. 16, 2020) (unpublished) with respect to what needs to be done to sustain a Family Code section 271 sanctions award.

            The 271 sanctions award, only $1,225, did not hold up on appeal.  The reasons were two-fold.  First, litigants need to satisfy notice requirements, with the family court never indicating, nor the litigants, that these types of sanctions were being sought.  Second, the record showed that ex-husband had no ability to pay these sanctions—with the transcript showing he had a hard time making “ends meet” and could not pay any sanctions award.  Reversed. 

Family Law: In DVRO Proceeding Where Ex-Husband Put Child Custody Issues In Potential Dispute, Lower Court Did Not Abuse Its Discretion In Awarding $80,000 In Family Code Section 2030 Fees To Ex-Wife

Interestingly Enough, Ex-Husband Did Obtain DVRO Against Ex-Wife Involving Three Sons.

            The next case, Yurasek v. Kesala, Case No. A158859 (1^st Dist., Div. 2 Dec. 2, 2020) (unpublished), is an interesting reminder to be careful what box you check in family law forms.  If you go broad and check some boxes for wide relief, it may invite an award of needs-based fees for collateral issues in a proceeding where you ultimately prevailed—but got tagged with attorney’s fees nonetheless for a related dispute that you put at issue.

            In this one, the ex-husband and ex-wife were well-educated professionals in an 18-year marriage with three sons.  However, in connection with divorce proceedings, ex-husband brought a domestic violence restraining order (DVRO) proceeding involving the ex-wife and three sons, with a DVRO eventually being entered against ex-wife on certain terms.  However, during the DVRO “trial,” ex-wife requested $150,000 in needs-based fees under Family Code section 2030 in connection with a change of custody dispute.  The lower court, after multiple hearings and requiring an apportionment of fees, granted ex-wife $80,000 in fees, prompting ex-husband to appeal.

            The 1/2 DCA affirmed because the DVRO proceeding was related enough to the custody issues given that ex-husband had checked boxes acknowledging that the custody controversy was closely enough involved in the DVRO proceeding. 

Family Law: Husband’s Intentional Tort Exposure Not Benefitting Community Was Properly Borne By Him, As Well As Wife’s/Related LLC’s Legal Fees To Successfully Defend Tort Suit

Family Code Section 1000 Governed The Result.

             In Marriage of Duncan and Tejpaul, Case No. G056998 (4^th Dist., Div. 3 Dec. 1, 2020) (unpublished), husband unilaterally purchased a restaurant with third parties while married to wife, with the third parties suing husband, wife, and a related LLC for certain intentional torts.  Third parties won $806,644 against husband, but wife and the LLC were exonerated in the third parties’ suit.  Later, the family law judge determined that the husband’s intentional torts did not benefit the community such that he could not seek any recompense from wife, as well as had to pay wife/LLC’s legal fees in defending against the third parties’ claims.

            The 4/3 DCA, in a 3-0 opinion authored by Justice Aronson, affirmed.  Family Code section 1000 provided instructive principles indicating that an innocent spouse should not have to bear the brunt of intentional torts by the other spouse which do not benefit the community.  Given this was the law, it was a natural corollary that wife’s/LLC’s defense fees should also be borne by husband.

Family Law: Lower Court Properly Denied Ex-Wife Needs-Based Fees And § 271 Sanctions

Record Showed Ex-Wife Had Income/Prior Assets To Pay Fees; 271 Challenge Rejected Because Of Failure To Provide Record Citations.

            Marriage of Mould, Case No. C085068 (3d Dist. Nov. 12, 2020) (unpublished) is an illustration of how appellants need to pay attention to the record and also to provide detailed record citations when deciding to appeal or in supporting an appeal.

            In this one, ex-wife had monthly income of $6,800 and had obtained prior asset distributions, but she had racked up $80,000 of credit card debt.  The appellate courts found no abuse of discretion by the lower court in denying needs-based fees based on these facts in the record.  As far as a section 217 sanctions request denied by the lower court, appellant’s failure to provide record citations doomed review of this contention.

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.