CALIFORNIA ATTORNEY'S FEES

Family Law: Denial Of Needs-Based Family Code Section 2030 Fees Reversed Because Lower Court Made No Findings Of Ability To Pay

Consideration Of Equitable Factors Other Than Disparity and Ability To Pay Are Not Allowable Under Section 2030.

               In Marriage of Saedi v. Kadivar, Case No. B340089 (2d Dist., Div. 2 June 23, 2025) (unpublished), the lower court denied a Family Code section 2030 needs-based fee request by ex-wife in connection with child support modification proceedings.  The denial was reversed and remanded.  The problem was that, under recent amendments to section 2030, the lower court failed to make findings about the ability to pay.  Under the amendments, a family law judge must make findings on disparity in access and ability to pay, with the failure to make findings being reversible error if the error is prejudicial.  It likely was, because the record suggested ex-husband did have the ability to pay.  However, the interesting part of the decision is that other equitable factors other than disparity or ability to pay are irrelevant.  Here is what the appellate panel had to say: “The statute’s requirement of a finding that a fees award is ‘appropriate’ is therefore limited to factors relating to disparity to access and ability to pay for legal representation. Such an interpretation of section 2030 is consistent with other provisions of the statute. Section 2030, subdivision (a)(1), mandates the trial court to ensure each party has access to legal representation to preserve each party’s rights by ordering one party to pay the other party whatever amount reasonably necessary based on an income and needs assessment. Thus, if a court could consider equitable factors unrelated to the parties’ disparity in access and ability to pay, this would contravene the statute’s express purpose.”

Deadlines, Family Law: Ex-Wife’s Challenge To $193,000 In Attorney’s Fees Under Family Code Section 271 Or Contractual Marital Stipulation Fee Clause Affirmed On Appeal

Although Notice Of Motion For Appellate Fees Was Untimely, Record Showed That The Lower Court Granted An Extension Request To Ex-Husband As Moving Party.

               In Marriage of Richards, Case Nos. G062449 et al. (4^th Dist., Div. 3 June 13, 2025) (unpublished), ex-wife appealed a Family Code section 271 sanctions and contractual marital stipulation fee award of $193,000 (out of a requested $234,000), inclusive of some appellate fees for husband winning a prior appeal.  Appellant’s appeal was unsuccessful.  With respect to fee entitlement, she could not attack the marital stipulation entered as a judgment through a collateral attack below, but only through an appeal which was not done.  (Hobbs v. Duff, 43 Cal. 485, 490 (1872).)   With respect to the appellate fees, ex-husband’s counsel was candid with the lower court that the appellate fees motion was untimely, but counsel lobbied for an extension and was granted fees—implicitly showing the extension was granted.

Family Law: $50,000 § 271 Sanctions Order Against Wife And Denial Of Her § 271 Sanctions Request Against Husband Both Reversed On Appeal

Section 271 Sanctions Order Against Her Not Tethered To Expenses, And Her Denied Sanctions Request Was Properly Raised Through A Responsive Declaration To A Different Motion Not Seeking Sanctions.

               In Marriage of Kapila and Deshmukh, Case No. A170589 (1^st Dist., Div. 5 June 3, 2025) (unpublished), wife was hit with a $50,000 sanctions award under Family Code section 271, and her request for section 271 sanctions was denied.  On appeal, wife obtained a reversal and remand of both orders.  As to the sanctions order against her, the $50,000 in sanctions was not properly tethered to incurred attorney’s fees and costs for the targeted conduct.  (Menezes v. McDaniel, 44 Cal.App.5^th 349, 352 (2019).)  When it came to the denial of wife’s sanction request, husband conceded that it was incorrectly denied by being raised in a responsive declaration relating to a different motion (In re Marriage of Perow & Uzelac, 31 Cal.App.5^th 984, 992 (2019)), and the appellate panel could not say that husband’s failure to reveal a new job for child support purposes could not form the basis for sanctions—although expressing no opinion on if it did when remanding for a revisit.

Appeal Sanctions, Costs, Family Law: Although Prevailing Party On Appeal Entitled To Costs, There Was No Bases For Appeal Attorney’s Fees Or Appellate Sanctions

Sanctions Award Under Family Code Section 271 Was Defective Because Prevailing Party Failed To Give Notice Of Seeking This Relief.

               In Marriage of Terry, Case No. B334907 (2d Dist., Div. 6 Apr. 21, 2025) (unpublished), a prevailing party on appeal was awarded three components by the lower court:  (1) routine costs; (2) $23,587.20 in attorney’s fees on appeal (with no explanation); and (3) $2,340 in sanctions under Family Code section 271 for preparing and attending a hearing on these various issues.

               The 2/6 DCA affirmed the routine costs award, but it reversed the (2) and (3) components.

               Prevailing party timely filed a costs memorandum such that routine appellate costs were properly awarded.

               The problem with the appellate fees award was there was no contractual or statutory basis for a fee award, because prevailing party cites no substantive grounds to support a fee award in this marital dissolution case—a reversal as a matter of law. 

               With respect to sanctions, the appellate court concluded that prevailing party never raised section 271 as a basis for fees before the trial court—instead just claiming they fell within routine costs (although one needs an independent fee basis anyway).  So, the other side was given no opportunity to contest this issue, requiring another reversal as a matter of law.

Family Law: A Remand Is Required Where Family Law Judge Awarded Wife Needs-Based Fees Over The Requested Amount

Financial Need Analysis Needed To Be Fine Tuned.

               In Marriage of Hernandez, Case No. G062386 (4^th Dist., Div. 3 Apr. 17, 2025) (unpublished), Justice Delaney on behalf of a 3-0 panel reversed and remanded a $7,500 needs-based fee award to ex-wife when her attorney only said he charged her a flat $5,000.  The ultimate award could not be reconciled, although the matter was remanded to do a restudy of whether financial needs of the parties drove the result in some way. 

Family Law: 2/6 DCA Affirms Trial Court’s Conclusion That Monthly Payments To Father From Indian Tribe’s General Welfare Program Is Income That Can Be Considered In Calculating Child Support And Needs-Based Attorney Fees Obligations

Indian Tribe’s General Welfare Program Payments To Father, Who Has An Annual Salary Exceeding $100,000 Per Year, Were Not Need Based.

            In Pateras v. Armenta, Case No. B336065 (2d Dist., Div. 6 February 27, 2025) (published), the 2/6 DCA affirmed the lower court’s conclusion that the monthly payments father receives from Indian Tribe’s general welfare program are not excludable from the calculation of father’s income for determining child support and needs-based attorney fees payable to mother. 

Although Family Code section 4058(c) provides an exclusion for income received from public assistance programs, this exclusion applies only to those public assistance programs which are based on need, and for which qualifying for benefits is restricted to only those who meet the poverty requirements for eligibility. 

Based on father’s annual income of $114,000, the trial court made a reasonable inference that being a descendant of the Tribe, rather than financial need, was the qualifying factor for father’s monthly payments from the general welfare program.

Family Law: Section 271 Sanctions Denial Dismissed As An Interlocutory Order But Section 2030 Needs-Based Denial Reversed Because The Request Was Adequately Supported

Unpublished Case Has A Nice Discussion On Why A Section 271 Sanctions Denial Is Not A Collateral Order.

               Unpublished opinions frequently have good discussions on legal issues, which is the case on whether a denial of a Family Code sections 271 request is a collateral order which is immediately appealable.

               In Marriage of Zhang and Mo, Case No. H050700 (6^th Dist. Jan. 10, 2025) (unpublished), the appellate court dismissed appeal of a lower court’s denial of a Family Code section 271 sanctions request as non-appealable, but it also reversed the denial of a Family Code section 2030 needs-based request because the express findings were not made by the lower court.

               On the 271 appeal, the issue was whether the denial order was immediately appealable.  After a scholarly review, the appellate court decided it was not, because section 271 orders are frequently ongoing in nature so they should be resolved when a final judgment is reached.  In doing so, it distinguished the result on a different sanctions order in Muller v. Fresno Community Hospital & Medical Center, 172 Cal.App.5^th 887, 905 (2009).

               A different result was reached on the section 2030 issue.  The lower court did not make express findings when denying a needs-based award such that a remand was in order.  Although the lower court decided no pay stubs were produced, the DCA concluded “we are unaware of any statute or case that authorizes the trial court to summarily deny an otherwise facially adequate section 2030 request solely because pay stubs were not included.”  (Slip Op., at 10.)

Family Law: Lower Court’s Denial Off Needs-Based Fees Based On Ruling That Wife Was Barred From Enforcing Marital Settlement Agreement By Laches Was Erroneous

Laches Ruling Needed To Be Revisited.

               In Marriage of Goldman, Case No. D082021 (4^th Dist., Div. 1 Jan. 10, 2025) (partially published; fee discussion unpublished), ex-husband and ex-wife entered into a marital settlement agreement (MSA) which wife claimed was breached and then asked for needs-based fees and costs to enforce it.  The lower court determined that ex-wife’s efforts were barred by laches.  Although the appellate court determined that the laches defense was available with respect to the MSA under Family Code section 291, it found that the laches defense was not supported by substantial evidence and remanded for a revisit.  As a result, the needs-based attorney’s fees and costs request—which was denied—also had to be looked at again. 

Family Law, Sanctions: $222,952 Fee Award To Ex-Husband Under Family Code Section 271 For Prevailing In A Vigorously Contested DVRO Proceeding Was Proper

Lower Court Did Consider Ex-Wife’s Ability To Pay, Ordering It Be Paid $5,000/Month.

               Family law litigants and practitioners should pay attention to how Family Code section 271 sanctions for failing to settle family law matters can be painful and a game changer as far as a litigant’s financial well-being.  Marriage of Detrick, Case No. A166304 (1^st Dist., Div. 4 Dec. 12, 2024) (unpublished) is a casebook example of just that.

               In this case, there were dueling DVRO petitions for child abuse and domestic violence.  Ex-husband ultimately prevailed after a very vigorously contested proceeding where the trial judge found him credible and did not find ex-wife credible.  The lower court then awarded ex-husband $222,952 in attorney’s fees under Family Code section 271, a sanctions provision allowing considerable discretion where a litigant prolonged and did not try to resolve a dissolution case.  However, ex-wife was ordered to pay off the amount over time, $5,000 a month until the amount was satisfied pending further orders on asset and ability to pay situations.

               That result was affirmed on appeal.  Although substantial, the fee award was justified based on the positions of the litigants and the contested nature of the proceeding.  With respect to ability to pay, ex-wife was an interior designer and had her current expenses paid by a boyfriend; that, combined with the $5,000 per month extended payment schedule, showed there was consideration given to her ability to pay, justifying the award.

Family Law, Special Fee Shifting Statutes: $43,000 Fee Award To Prevailing Petitioner In An Extensive DVRO Proceeding Is Affirmed On Appeal

Current Version Of Family Code Section 6344 Is Retroactive To Cases Pending On Its Effective Date, With Fee Award Not Being Seen As Excessive In Nature.

               Prevailing petitioner (ex-wife) was awarded $43,000 in attorney’s fees imposed upon her ex-husband under Family Code section 6344 in a DVRO proceeding.  That award was affirmed on appeal in Marriage of Stephanie & Kyle N., Case No. D084263 (4^th Dist., Div. 1 Nov. 21, 2024) (unpublished).

               The current version of section 6344, effective January 1, 2023, changed the law such that a prevailing petitioner could obtain fees and costs without regard to the petitioner’s ability to pay so long as the respondent had the ability to pay.  The appellate court found that provision was retroactive to petitioner’s matter pending before 2023, adopting the reasoning articulated to that effect in Dragones v. Calkins, 98 Cal.App.5^th 1075, 1081-1082 (2024).)  The amount of the fee award was not excessive because (1) the DVRO proceeding lasted 18 days over a 15-month time span, and (2) husband had the ability to pay, paying his own attorney about twice more than the fee award in ex-wife’s favor.

Deadlines, Family Law, Judgment Enforcement: Attorney’s Fees Judgment Under Family Code Section 2030 Not Barred By Normal 10-Year Enforcement Period

Family Code Section 291(b) So Specifies.

 

                In Marriage of Shayan, Case No. B323455 (2d Dist., Div. 8 Oct. 25, 2024) (published), the appellate court affirmed a lower court’s conclusion that an attorney’s fees judgment under Family Code section 2030 was not governed by the normal 10-year enforcement period for most monetary judgments.  This was based on Family Code section 291(b), the section’s legislative history, and common sense.  The upshot was that a 12-year family law fee judgment could still be enforced.

Appealability, Family Law: Where Family Law Judge Expressly Reserved Findings On Fee Reasonableness For A Later Date, Pendente Lite Fee Order Appeal Dismissed

Appellant Can Be Free To Appeal When A Final Order Is Issued.

               In Marriage of O’Hill, Case No. G062146 (4^th Dist., Div. 3 Oct. 1, 2024) (unpublished), a family law judge expressly stated in his order that pendente lite fee orders were subject to reasonableness findings and further revisions at a later date.  The appellate court dismissed the appeal because even though a temporary support order in tandem with fee awards are generally appealable, the specific orders here were appealable in the future, with ex-husband simply needing to appeal in the future.

Arbitration, Family Law: MFAA Fee Process Is Not Required For Fees To Be Awarded To Attorney Representing Minor In A Custody Dispute

Family Code Section 3153 And CRC 5.241 Supported This Conclusion.

               In Marriage of Thompson, Case No. B332150 (2d Dist., Div. 2 Sept. 24, 2024) (unpublished), ex-spouses were embroiled in a “high conflict” custody dispute over their minor child, with the family court appointing a family law attorney to represent the minor child and with her costs to be split 50/50 (over no objection by either side).  All fine until disputes arose on minor child’s attorney’s fee requests, after ex-wife did not pay some fees but ex-husband did pay his share.  Ex-wife argued that she had a right to pursue a Mandatory Fee Arbitration Act (MFAA) arbitration before minor child’s attorney sought fees from the family court.  The family court did not agree, awarding fees to attorney as against ex-wife. 

               Ex-wife appealed, arguing the MFAA applied to her fee dispute with minor child’s attorney.  The 2/2 DCA disagreed, determining that Family Code section 3153 and CRC, Rule 5.241 address the payment of fees to a minor child’s attorney and with the family court to adjudge the determination of such fees.  Because minor child’s attorney’s fees were to be determined by statute, the MFAA did not apply.

Family Law: Denial Of Section 2030 Fees To Wife With A Disparity In Income/Assets Needed To Be Remanded To Award Reasonable Fees To Her

Lack Of Express Findings On The Factors Required A Remand.

               In In re Marriage of Patton, Case No. B329509 et al. (2d Dist., Div. 4 Aug. 29, 2024) (unpublished), the appellate court reversed a family law judge’s failure to award Family Code section 2030 fees to ex-wife, where the record showed she made $60,000 a year versus $500,000 a year for ex-husband, and she had no savings versus ex-husband receiving $2 million from the sale of stock options.  The lower court failed to make express findings on the section 2030(a)(2) factors, much less weighed the reasonableness of ex-wife’s fee request.  This was an abuse of discretion leading to a remand to award some amount of reasonable fees to ex-wife.

Family Law, Retainer Agreements, Sanctions: CCP § 128.7 Sanctions Award Reversed Because Litigant Not Given Safe Harbor Notice/OSC Notice That The Sanctions Response Was Sanctionable

Also, We Learn New Things All The Time—Contingency Agreements In Family Law Proceedings Are Against Public Policy.

               Wright v. Wright, Case No. B330901 (2d Dist., Div. 1 Aug. 23, 2024) (unpublished) is interesting on two points:  (1) it reversed a CCP § 128.7 sanctions order against a litigant based on litigant’s response to a sanctions motion because no separate safe harbor or OSC notice targeted that response; and (2) Rules of Professional Conduct, rule 1.5(c)(1) provides that contingency agreements in family law proceedings are void against public policy because they incentivize attorneys to discourage reconciliation between the family law litigants, although the panel did not have to apply this provision because the subject retainer arrangement was not a contingency arrangement.

Allocation, Deadlines, Family Law: $72,776.25 Appellate Fee Award To Ex-Husband For Ex-Wife’s Breach Of Fiduciary Duties Affirmed On Appeal, Although Husband Lost Section 271 Sanction Request

Lower Court Impliedly Extended The Fee Filing Deadline, With The Failure To File An Income/Expense Statement Found Nonprejudicial In Nature.

               Bryan v. Bryan, Case No. E080311 (4^th Dist., Div. 2 July 1, 2024) (unpublished) is a case where ex-husband was awarded $72,776.25 in appellate fees (out of a requested $90,000) for winning an appeal involving ex-wife’s claimed breach of fiduciary duty under Family Code section 1101(g), although ex-husband was denied Family Code section 271 sanctions.  Both parties appealed, but all determinations were affirmed.

               The appellate court found that the lower court impliedly allowed ex-husband to exceed the 40-day post-remittitur time deadline to file a fee motion.  It also found that his failure to file a FL-150 income/expense statement was nonprejudicial in nature.  However, ex-husband lost the 271 denial challenge because he failed to allocate fees for this request versus throwing them into “one pot.”

Family Law, Reasonableness Of Fees: Marital Settlement Agreement Did Not Preclude Needs-Based Fees To Ex-Husband, But Remand Required Because Appellate Court Could Not Determine The Basis Of The $10,000 Needs-Based Award To Wife

She Asked For $72,355, With Appellate Court Unsure As To How This Amount Was Reached.

            Both ex-husband and ex-wife were unhappy with needs-based awards to each in Konkov v. Doubson, Case No. H050705 (6^th Dist. May 14, 2024) (unpublished).  Both appealed, with mixed results but not certain that anything would change on remand.

            Ex-husband was awarded needs-based fees of $14,000, with ex-wife contending that they were not allowed under the terms of a marital settlement agreement.  This argument was rejected, since nothing in the agreement addressed, much less waived, needs-based fees.

            Ex-wife was awarded needs-based fees of $10,000 out of a requested $72,355.  This order was reversed and remanded, given that the appellate court could not determine how it was reached.  A rare abuse of discretion reversal.

Family Law: Ex-Husband’s Oral Request For Needs-Based Fees In DVRO Proceeding Was Properly Denied

No Evidence On Financial Need Was Presented, Although Appellate Court Noted A Split On Intermediate Appeal Thinking On Whether Needs-Based Fees Are Warranted In This Area.

               In Marriage of Etheridge, Case No. A167520 (1^st Dist., Div. 2 Apr. 30, 2024) (unpublished), ex-husband made an oral request for Family Code section 2030 needs-based fees in a domestic violence restraining order (DRVO) proceeding.  The fatal problem was that he failed to provide any financial evidence to support this request.  The trial court denied it, and the appellate court affirmed the ruling.

               Initially, the appellate court recognized that there is no consensus on whether the losing, restrained party in a domestic violence action is entitled to needs-based fees to the extent custody and visitation issues are involved (compare C.T. v. K.W., 71 Cal.App.5^th 679, 681, 686-687 (2021) [yes] with Durab Cody N. v. Olivera, 31 Cal.App.5^th 1134, 1144 (2019) [no]), but did not need to weigh in on this split based on the facts of record.  Although written requests for these types of fees are preferred, an oral request is acceptable.  However, ex-husband had the burden of proof to produce evidence of financial need.  (In re Marriage of Falcone & Fyke, 164 Cal.App.4^th 814, 823-824 (2008).)  Ex-husband presented no such evidence, so the request was properly denied. 

Family Law: Modification Of Section 2030 Needs-Based Award Is Left To The Broad Discretion Of The Family Law Judge

Ex-Husband Could Not Show An Abuse Of Discretion, Especially With No Reporter’s Transcript.

               In Marriage of Longinotti and Karpala, Case No. H051393 (6^th Dist. Apr. 25, 2024) (unpublished), ex-husband requested the family law judge to modify a Family Code section 2030 need-based fees/costs award to ex-wife after he paid a substantial part of it (requesting forgiveness of the $17,000 remaining amount).  Under section 2030(c), a lower court shall augment or modify an original fees award “as may be reasonably necessary for the prosecution or defense of the proceeding, or any proceeding related thereto, including after any appeal has been concluded.”  The lower court refused the request, and the appellate court affirmed.  Ex-husband could not show any abuse of discretion, especially given the lack of a reporter’s transcript to show the lower court’s reasoning at the hearing below. 

Family Law: Family Code 2030 Obligations By Lower Court Not Triggered Unless A Fees Request Is Made

. . . Either By Written Motion Or By Oral Motion At A Hearing.

               In Marriage of Hinker, Case Nos. G061718 et al. (4^th Dist., Div. 3 Apr. 12, 2024) (unpublished), Justice Delaney on behalf of a 3-0 panel confirmed that a court’s obligations under Family Code section 2030 [the provision allowing provisional fee shifting so a dissolution party can obtain representation when the financial circumstances so require] only arise after there is a request for attorney’s fees made through a written motion or an oral motion at a merits hearing.  (In re Marriage of Knox, 85 Cal.App.5^th 15, 29-30 (2022).)  No request was made, so no obligation to consider a 2030 request was triggered.

Family Law: 271 Sanctions Award Remanded Because It Was Unclear If Family Law Judge Considered Litigant’s Ability To Pay

Family Code Section 271(a) Mandates Consideration Of Ability To Pay.

               Although we have posted on this before, Family Code section 271(a) mandates that a family law judge takes into consideration a litigant’s ability to pay when assessing section 271 sanctions.  In Jayasuriya v. Jayasuriya, Case Nos. A166864 et al. (1^st Dist., div. 3 Mar. 20, 2024) (unpublished), a $2,000 sanctions award against an ex-husband was reversed and remanded because it was unclear if the family law judge considered his ability to pay. 

Family Law: Ex-Husband’s Pre-Marriage Contractual Debt, Including Attorney’s Fees Liquidated Later Through A Post-Separation Award, Were Properly Characterized As A Responsibility Of Ex-Wife

It Did Not Matter If The Debt Was Incurred Before Marriage Or If The Fee Award Was Fixed After Separation.

               Although unpublished, Marriage of Ferris, Case No. A165952 (1^st Dist., Div. 5 Mar. 15, 2024) (unpublished) may be an eye opener for spouses who may not have been informed about contractual debts incurred by their new husband or wife before the marriage or for debts fixed in amount after the couples separate.

               Ferris was a situation where ex-husband entered into a real estate contract, with a contractual fees clause, later giving rise to a judgment for attorney’s fees against him and in favor of the other prevailing party to the contract after she successfully demurred to ex-husband’s cross-complaint.  The contract was entered into by the ex-husband and prevailing party years before ex-husband and ex-wife got married, even though the lawsuit against ex-husband and fees judgment occurred while the couple were legally separated.  Prevailing party then intervened in the couple’s divorce action to collect on the judgment based on there being surplus funds from a foreclosure sale of the couple’s former house.

Ex-wife successfully argued at the trial court level that (1) ex-husband’s real estate venture occurred before the marriage and did not benefit the community; and (2) the fees were awarded after the couple’s separation.  The lower court agreed that the fee award was not a “contract debt” under Family Code section 903 because any obligation to pay attorney’s fees was contingent on future events, the obligation to pay fees occurred after the date of separation such that it was ex-husband’s separate obligation, and the debt was not for the common necessaries of life for either spouse/children of the marriage.

               The 1/5 DCA reversed.  The appellate court framed the key issue as follows:  Who is liable on a debt for contractual attorney fees arising from litigation on a contract entered by one spouse before the marriage and awarded after the marriage’s demise?  It decided this presented a question of statutory interpretation subject to de novo review.

               It had to consider two Family Code statutory provisions.  Section 910(a) provides that “the community estate is liable for a debt incurred by either spouse before or during marriage, regardless of which spouse has the management and control of the property and regardless of whether one or both spouses are parties to the debt or to a judgment for the debt.”  Section 903, in turn, states that a contractual debt is incurred “at the time the contract is made.”  Piecing these two provisions together, the reviewing panel found that the community estate was liable for a spouse’s breach of a contract he or she entered into before or during the marriage, with section 903 oblivious to the time of performance of a contract.  (In re Marriage of Feldner, 40 Cal.App.4^th 618, 621-622 (1995).)

               It was immaterial that the potential liability for fees on the contract were uncertain at the time the contract was made, given that contractual rights contingent upon future events still mean the debt belonged to the community.  (In re Marriage of Nassimi, 3 Cal.App.5^th 667, 685-686 (2016); In re Marriage of Brown, 15 Cal.3d 838, 846 n. 8 (1976); In re Marriage of Fonstein, 17 Cal.3d 738, 746 (1976).). It was also irrelevant that the marital community did not benefit from the contract, because ex-wife could seek reimbursement from ex-husband for the debt to the third-party.  Finally, “the necessaries of life” argument did not prevail because the debt was incurred before marriage, not during it.  Bottom line, the debt was community in nature.

Family Law, Special Fee Shifting Statutes: Court Of Appeal Decides Current Version Of Domestic Violence Prevention Act, Applies Retroactively To Cases After 2023, Justifying A Fee Award

Family Code Section 6344 Applies Retroactively.

            In Dragones III v. Calkins, Case No. B329659 (2d Dist., Div. 7 Jan. 17, 2024) (published), the 2/7 DCA confronted whether Family Code section 6344, effective 2023, made it easier for a prevailing petitioner to obtain fees and harder for a prevailing respondent to obtain fees in actions brought under the Domestic Violence Prevention Act.  The lower court awarded prevailing petitioner $6,000 in fees out of a $13,659 “ask.”  That award was affirmed on appeal.  Newly enacted Family Code section 6344, plus procedural rules relating to fees awards, warranted affirmance of the fee award based on application of retroactivity principles.

Family Law, Fee Clause Interpretation, Indemnity: Some Parts Affirmed, Some Parts Reversed And Remanded In Appeal Involving Community Or Separate Property Liability For Indemnification Obligations

Also, Fee/Costs Award Under Indemnity Agreement Only Recoverable Against Ex-Husband, A Signatory To The Agreement, But No Fee Exposure Under The Third-Party Indemnity Provision; Needs-Based Fees Paid To Both Spouses Are Separate Debts Of Husband For His Need-Based Fees And Community Debts For Fees To Both Spouses.

            Acting Presiding Justice Moore, in In re Marriage of Nakamoto and Hsu, Case No. B061363 (4^th Dist., Div. 3 Jan. 3, 2024) (unpublished), dealt with a written indemnity agreement between ex-husband and his siblings (with ex-wife not being a party to the agreement).  Former spouses believed that the siblings owed ex-husband roughly $3 million, which had been transmuted to community property, proceeding to a trial at which former spouses lost.  The lower court awarded siblings over $2.4 million in costs and fees against ex-husband separately, ex-wife separately, and community.

            On appeal, the 4/3 DCA panel agreed that only the community, not ex-wife separately, were liable for ex-husband’s indemnity obligations under Family Code section 910(a), because Family Code section 913(b) did not visit this obligation on her separately.  The lower court also erred in including attorney’s fees that siblings incurred in litigating against ex-husband as to ex-wife.  However, ex-husband was responsible for these fees under the indemnity fees clause, but not a third-party claims provision.  Finally, needs-based fees awarded to both former spouses by siblings under Family Code section 2030 were a separate obligation of ex-husband as well as a community obligation. 

Family Law: In Case Involving Criminal and SEC Insider Trading Proceedings, Appellate Court Determines That Ex-Husband’s Criminal Fees Constituted A Separate Debt But That Ex-Wife Was Liable For, As A Community Obligation, Some Of The SEC Insider Tradi

Ex-Wife Had To Bear $931,000 In Fees, Much Lower Than Multi-Millions In Fees Incurred By Husband.

            In re Marriage of Whitman, Case No. A157055 (1^st Dist., Div. 2 Dec. 29, 2023) (partially published) involved ex-husband, a hedge fund founder, who incurred multi-millions in fees defending himself in a criminal insider trading case and a parallel SEC civil proceeding.  The appellate court then considered the lower court’s allocations of fees between ex-husband and wife.   It finally determined things this way in a lengthy decision:   (1) wife was not liable for any criminal defense fees, because this was a separate debt of ex-husband under Family Code section 2623 [neither tort nor contract claims, but criminal fees incurred after their separation]; (2) wife was liable for $290,000 in fees (an allocated amount, much smaller than the lion share of the $9.4 million in fees apportioned to husband) for the SEC civil proceeding because the community obtained some benefit (Family Code, § 2625); and (3) wife was liable for about $641,000 in fees incurred by the hedge fund in intervening in the civil case because she tried to wind it down, although it was producing income at the time. 

Family Law: Fee Awards To Ex-Wife Under Section 271 And Minors’ Counsel Under Section 3153 Were Affirmed On Appeal

Ex-Husband Did Have Ability To Pay, With The Lower Court Structuring The Fee Recovery To Ameliorate Hardship.

            Acting Presiding Justice Bedsworth, on behalf of a 3-0 panel, authored Marriage of Lou and Ma, Case No. G061015 et al. (4^th Dist., Div. 3 Dec. 6, 2023) (unpublished).  Ex-husband in a dissolution case appealed an award of attorney’ fees to ex-wife of $63,489 (principally under Family Code section 271) and to minors’ counsel under Family Code section 3153 (which section allows for such an award considering the parties’ ability to pay).  However, the lower court structured the award so that wife’s fees should be satisfied through equalization adjustment for the value of the marital residence and so that minors’ counsel could be paid from liquidating stocks/bonds such that only $7,260 had to be paid in cash.  The 4/3 DCA panel affirmed.  The record showed ex-husband ran up the cost of the litigation, with the lower court finding that “everything including the kitchen sink was tossed into this litigation” by ex-husband.  With respect to ex-husband’s argument he did not have the ability to pay, the lower court’s structuring of how the fee orders were to be paid was reasonable, with ex-husband having plenty of disposable cash and bitcoin resources to satisfy the cash component of the award to minors’ counsel.

Family Law: $300,000 271 Sanctions Order Against Ex-Husband Was Reversed And Remanded On A Narrow Issue

Because Ex-Husband Did Timely Pay An Earlier Discovery Sanctions, 271 Sanctions Order Had To Be Revisited Based On Lower Court Error On This Discrete Issue.

            Family Code section 271 sanctions can be steep.  This is a statutory provision that allows considerable leeway to a lower court to impose sanctions in a dissolution proceeding against a litigant not trying to settle the matter or running up the expenses in the case.  Ex-husband in Marriage of Thompson, Case No. A164210 (1^st Dist., Div. 1 Nov. 7, 2023) (unpublished) got hit with an adverse section 271 sanctions award of $300,000.  He raised two arguments on appeal: (1) live testimony was required at the 271 sanctions hearing, a request denied by the lower court; and (2) the lower court based its ruling, partially, on his failure to pay a discovery sanctions award which indeed was timely paid.

            Appellant lost argument #1, but he did obtain a reversal and remand on argument #2.

            With respect to the live testimony issue, 271 sanctions are not a substantive matter requiring live testimony under statutory or CRC provisions.  Although a lower court can in its discretion order live testimony, it no abuse of discretion for the trial judge in this case to determine that the documentary evidence and credibility inferences to be drawn therefrom could allow for a proper adjudication of the sanctions issue. 

            But the rub in this matter was an undisputed one:  appellant timely did pay the discovery sanctions.  Given that this occurred, a reversal was required to revisit whether that mistake would lead to a different 271 sanctions award in the gestalt of things.

Family Law: 2/8 DCA Affirms Base Family Code Section 271 Sanctions Award Plus $1,000 Per Day For Non-Compliance Purposes

Justice Wiley, In Concurring, Shows Why This Is A Necessary Result Given Public Discontent About The Costs Of Modern Litigation. 

            I guess one could say that Marriage of Andrew and Rangell, Case No. B313786 (2d Dist., Div. 8 Sept. 28, 2023) (published) is simply an affirmance, primarily, of Family Code section 271 sanctions award against an ex-husband for disobeying court orders and breaching settlement agreement obligations.  But it is more than that.  The appellate court, in both majority and concurring opinions, sustained that a 271 fees award can contain a “continuing” penalty of $1,000 per day to obtain compliance with previous court orders.  Justice Wiley, the concurring justice, found these future expenditures were justified, waxing eloquent about the public’s likely distain for substantial litigation expenses: “Our ruling is important, not only to litigants and trial courts, but also to the public at large, which has an abiding interest in effective judicial administration. The public rues the glacial pace and dismaying cost of litigation. When musing about suicide, Hamlet counts ‘the law’s delay’ among the ‘whips and scorns of time.’  Bleak House jeers at litigation that ‘so exhausts finances, patience, courage, hope, so overthrows the brain and breaks the heart’ that wise counsel is to ‘Suffer any wrong that can be done you rather than come here!’”  There you have it, readers.

Appealability, Family Law: Denial Of Fees To Ex-Wife Under Family Code Section 3121 Was No Abuse Of Discretion Because The Matters Before The Trial Judge Were Unrelated To Child Custody Issues

However, Ex-Wife’s Appeal From The Final Judgment Was Timely Because the Interim Order Denying Fees Was Not A Separately Appealable Order.

            The main lesson from Marriage of Davis, Case No. D080980 (4^th Dist., Div. 1 Sept. 18, 2023) (unpublished) is a simple one:  if you are seeking fees, make sure you have a fee entitlement basis which is tethered to the matter before the lower court; otherwise, you lose, as happened in the opinion upon which we now post.

            In a dissolution hearing, ex-wife orally requested her attorney’s fees to obtain counsel in a proceeding under Family Code section 3121, which allows need-based fees akin to those allowable under sections 2030/2032 where an action involves exclusive custody of children from the marriage.  The court denied the motion, prompting an appeal.

            The first issue was appealability.  Given that this matter involved the denial of a fee request, the appellate court agreed that the interim denial did not have to appealed until notice of a final judgment, with ex-wife timely appealing from that.  It did note a rift in appellate thinking, but followed the majority view that an appealable collateral order must direct the payment or money, not a denial of money.  (Eisenberg et al., Cal. Practice Guide:  Civil Appeals and Writs (The Rutter Group 2022) § 2.78, also discussing the minority view in Muller v. Fresno Community Hospital & Medical Center, 172 Cal.App.4^th 887, 901-902 (2009).)

            On the merits, the record showed that the hearing matter before the lower court involved requests for a domestic violence restraining orders (DVROs) and a residence request, not a child custody controversy.  It was not enough that the dispute was part of the overall dissolution case, but it had to be targeted at an exclusive child custody dispute.  (Compare with C.T. v. K.W., 71 Cal.App.5^th 679, 681-685 (2021), where the DVRO petition included a request for child custody and visitation orders justifying a fee grant under analogous fee provision under the Uniform Parentage Act).

Family Law: While Ex-Wife and Ex-Husband Were Litigating The Validity Of A Marital Settlement Agreement With An “Each Side Bears Own Fees” Clause, Lower Court Still Properly Awarded Family Code Section 2030 Need-Based Fees To Ex-Wife

MSA Was Not Preemptive In Nature.

            Ex-wife and ex-husband in Mathur v. Mathur, Case No. H050018 (6^th Dist. Aug. 25, 2023) (unpublished) were litigating the validity of a martial settlement agreement (MSA) with a provision stating that each side would bear her/his own attorney’s fees.  The lower court still awarded ex-wife $61,455 in need-based fees under Family Code section 2030 after factually finding a disparity in access to resources and ability to pay by ex-wife.  Ex-husband’s challenge on appeal was that the MSA was preemptive in nature as far as awarding further fees.

            The Sixth District disagreed, affirming the fee award to ex-wife.   It cited case law establishing a court can make a section 2030 fee award when a property agreement is challenged.  (Locke-Paddon v. Locke- Paddon, 194 Cal. 73, 79-81 (1924); Nacht v. Nacht, 167 Cal.App.2d 254, 268 (1959); Spreckels v. Spreckels, 111 Cal.App.2d 529, 532 (1952).)  Although the appellate panel acknowledged that ex-husband had some support for his position in reasoning found in In re Marriage of Guilardi, 200 Cal.App.4^th 770 (2011), it found that case distinguishable because ex-wife in Mathur had mental health issues at the time she signed the MSA such that needs-based equality was necessary to litigate whether than agreement was valid.

Family Law: $100,000 Section 271 Sanctions Award Affirmed Where Ex-Wife Refused Three Pretrial Settlement Offers And A Post-trial Offer Which Were All Favorable To Her

Ex-Husband Had To Spend $208,000 To Prepare For And Engage In Trial.

            Marriage of Prunchunas, Case Nos. B319493 et al. (2d Dist., Div. 2 Aug. 21, 2023) (unpublished) is a situation where a lower court imposed $100,000 in Family Code section 271 sanctions against ex-wife where she rejected four favorable settlement offers by ex-husband, who had to incur $208,000 in fees to prepare for and engage in a trial.  The appellate court affirmed; ex-wife rejected three pre-trial settlement offers and a post-trial settlement offer, with the latter indicating each side would bear his/her own fees and costs.  The rejection of those offers justified the 271 order.

Family Law: A Two-Fer—Appellate Courts Affirm Family Code §§ 2030, 271 Fee Awards In Two Different Family Law Matters—Earning Capacity And Lots Of Litigation Activity Justified The Awards

• • • Marriage of Hearn, Case No. A162932 (1^st Dist., Div. 2 Aug. 10, 2023) (published)--$20,000 needs-based fee award to ex-wife under section 2030 was affirmed for two principal reasons:  (1) although unemployed now, ex-husband—an attorney—had superior future earning capacity than ex-wife had; and (2) ex-husband had vigorously represented himself in the dissolution case, while wife had to hire outside counsel to protect her interests.  [NOTE:  Husband’s name is Rocky, coincidentally.]
    • Marriage of Cole, Case No. A163975 (1^st Dist., Div. 3 Aug. 11, 2023) (fee discussion unpublished)--$123,909 fee award to wife under section 271 was warranted where there was significant written discovery, a long deposition of ex-wife, and substantial law-and-motion work brought by ex-husband.  [NOTE:  In a companion unpublished case issued the same day, the appellate court affirmed a $6,000 section 271 sanction award granted against ex-wife and in favor of ex-husband.]

Family Law: Lower Court’s Ignoring All Of Ex-Husband’s Evidence, But Using Some Of It, Resulted In Reversal Of Child Modification And $10,000 Needs-Based Fee Award

Appellate Court Was Bothered By Inconsistent Reasoning And Use Of Selective Evidence While Finding Appellant’s Proof Was Not Credible In Entirety.

            In Swan v. Hatchett, Case Nos. A163825 et al. (1^st Dist., Div. 4 June 29, 2023) (published), the lower court refused to consider ex-husband’s evidence as uncredible in child support modification and Family Code section 2030 attorney’s fees need proceedings, resulting in a $10,000 needs-based award in ex-wife’s favor.  The appellate court reversed and remanded because it could not square inconsistent reasoning and use of some of ex-husband’s evidence despite saying all should be ignored.  On the needs-based fee front, it found incredulous that the lower court could rely on husband’s financial declaration for purposes of fashioning a fee award but rejecting it in the modification proceeding.  If the lower court disregarded husband’s evidence in both proceedings, then there was no evidence to show husband had greater resources for purposes of paying for ex-wife’s legal representation.  Even though remanding, the Court of Appeal expressed no opinion as to what outcome should be reached.

Discovery, Family Law: Lower Court’ $68,358 Monetary Sanctions And Issue Sanction Against Ex-Husband For Failing To Produce QuickBooks Flash Drive To Wife’s Accounting Expert Was Sustained On Appeal

CCP § 2023.030 Allowed For The Award, With Willful Discovery Defiance Found By The Lower Court.

            A party’s failure to comply with discovery orders can have harsh consequences:  monetary sanctions; issue sanctions; and sometimes even dismissal or directives to enter a default judgment.  Ex-husband found that out in Marriage of Foulk, Case No. C094350 (3d Dist. May 30, 2023) (unpublished).

            Ex-husband was found to have willfully defied discovery orders to produce a business’s QuickBooks on a flash drive for static review by wife’s accounting expert.  The lower court imposed $68,358 in monetary sanctions under CCP § 2023.030 on him as well as ordered an issues sanction by which the value of the business would only be established through the uncontested testimony of ex-wife’s accounting expert.  The appellate court found these sanctions were no abuse of discretion, affirming the orders on appeal.

Family Law: After Two Decades Of Dissolution Battles, Husband Obtains $8,179.20 Fees Award For Brining A CCP § 664.6 Motion To Reduce A Marital Settlement Agreement To Judgment

Wife Denied 2030/271 Sanction Requests—The Dissolution Battle May Be Over!

            In Marriage of Shepherd, Case No. B322621 (2d Dist., Div. 3 May 4, 2023) (unpublished), two decades after a dissolution action was filed, husband and wife seemingly reached a marital settlement agreement (MSA) resolving all issues, read into the record in a court proceeding.  Wife reneged and tried to add new terms, according to the unpublished opinion, also seeking Family Code section 2030/271 sanctions.  The lower court granted husband’s motion to enter the MSA as a judgment and awarded him $8,179.20 in attorney’s fees in bringing the CCP § 664.6 motion.  It also denied wife’s fees/sanctions requests, finding husband already had paid substantial fees, more fees were due under the MSA, and wife did not adequately support her 2030 motion.

            The appellate court affirmed the results across the board.  Wife was the one who increased the costs of litigation and did not adequately support her 2030 requests.  Conversely, husband was entitled to fees for getting the MSA entered as a judgment so that the overall dispute may be finally ending to a close. 

            Husband asked for appellate frivolous sanctions, but he failed to file the required separate motion such that this request was procedurally denied.

Family Law: Although Family Code Section 271 Sanctions Were Justified, The Lower Court’s Sanction Award Was Reduced On Appeal

The Reduction Was Tethered To The Misconduct At Issue.

            In Marriage of Dolkhani & Izadpanahi, Case No. B317763 (2d Dist., Div. 7 Mar. 8, 2023) (unpublished), the lower court awarded Family Code section 271 sanctions (attorney’s fees) of $11,605 based on a dissolution litigant’s failure to cooperate in the preparation of a proposed judgment to resolve property issues.  The appellate court did not view the award as an abuse of discretion, but it reduced the award on appeal to $6,605 for fees tethered to the identified misconduct.  This is a reminder that section 271 fees, awarded as a sanction, do have to be causally linked to the underlying conduct for which sanctions are imposed.  If not, the appellate court can and will reduce the sanctions award as was done in this case.

Family Law: $13,000 Monthly Permanent Spousal Support Order And $175,000 Fees Order Under Needs-Based/Section 271 Grounds Reversed Where Lower Court Failed To Consider Totality Of Ex-Husband’s Ability To Pay Factors

Reversal of Spousal Support Order Parlayed Into Reversal Of Fees Order.

            In Kuo v. Liu, Case No. A164928 (1^st Dist., Div. 2 Feb. 21, 2023) (unpublished), ex-husband was hit with a $13,000 monthly permanent spousal support payments and a $175,000 fees award to ex-wife under the needs-based Family Code provisions and Family Code section 271.

            Those awards got reversed on appeal.  The problems with the spousal support awards, which also infected the fee award, were two-fold in nature:  (1) the support award was based on stale numbers 8 years earlier; and (2) the gifts and loans by ex-husband’s parents were not shown to be recurrent or continuing in nature.  The fee award by the lower court was not nuanced enough on ex-husband’s ability to pay—a key factor under Family Code section 2030, 2032, and 271—given he was living paycheck by paycheck at the time of the award, his parents’ funding had dried up, and ex-wife obtained significant loans from her parents to fund her dissolution efforts. 

Family Law: $97,500 Fee Award To Ex-Female Significant Other Under Family Code Section 6344 Is Affirmed On Appeal

Ex-Male Significant Other Had Ability To Pay, But Lower Court Did Not Award Full Fee Request Of $181,042.

            Johns v. Cummings, Case No. B313964 (2d Dist., Div. 4 Feb. 17, 2023) (unpublished) involved the aftermath of a romantic relationship between Thomas Cummings, a recording artist, and Whitney Johns, a fitness model/personal trainer, who both have significant online followings.  After the relationship apparently soured, Ms. Johns prevailed on a request for a domestic violence restraining order and was awarded attorney’s fees of $97,500 against Mr. Cummings under Family Code section 6344, although much less than the $181,042 requested (with her Westside L.A. attorney awarded $650 per hour because he did a strong job of presenting petitioner’s case). 

            Mr. Cummings appealed the award, but it was affirmed.  The prevailing party in a Domestic Violence Prevention Act matter can be awarded attorney’s fees in the discretion of the lower court, although the ability to pay of the losing party must be considered.  The matter was contested vigorously, with there being financial evidence that Mr. Cummings did have assets and significant yearly royalty earnings.  That was sufficient to sustain the award.

Family Law: Family Law Judge’s $20,000 Cumulative 271 Sua Sponte Sanctions Award Was An Abuse Of Discretion

Award Could Not Lie Against Litigant’s Attorney, And Simply Challenging Judge For Bias Does Not Justify 271 Sanctions.

            In Featherstone v. Martinez, Case No. B316280 (2d Dist., Div. 5 Dec. 21, 2022) (published), mother and her attorney were ordered to pay $10,000 each in Family Code section 271 sua sponte sanctions ordered by a family law judge for principally challenging that he was or appeared to be biased.  Those awards were reversed on appeal.

            As to mother’s attorney, case law established that 271 sanctions can only be imposed against the litigant, not the litigant’s attorney.  That brought the court to the sanctions award against mother.  Aside from expressing skepticism of whether a 271 sanctions award could be awarded sua sponte, the appellate court determined that the sanctions statute was not broad enough to reach bias challenges to a family law judge. 

Family Law: Substantial Gift Infusions By Parents To Ex-Husband Properly Credited Into Positive Analysis Of Awarding Ex-Wife Family Code Section 2030 Fees

$73,000 Was The 2030 Fees Award.

            As we wind down on another year (can you believe it), we have to say that family law is a nuanced area of the law and seems to be driven by factual circumstances and the equities in a lot of cases we have posted on over the years.  Marriage of Longinotti and Karpala, Case No. H049986 (6^th Dist. Dec. 14, 2022) (unpublished) is no exception.

            The trial court ultimately awarded ex-wife $53,000 in past fees incurred and $20,000 in anticipated fees to fight a child custody order, under Family Code section 2030, by which the child relocated from the U.S. to Germany with ex-wife.  It did so based on a disparity in income because ex-husband had parents making financial contributions of $226,000 which she characterized as a gift and which he characterized as a loan.  The appellate court affirmed based on parents’ substantial infusions which can significantly influence section 2030 and other Family Code awards.  (In re Marriage of Smith, 242 Cal.App.4^th 529, 533-534 (2015); In re Marriage of Alter, 171 Cal.App.4^th 718, 736-737 (2009).) 

            With respect to the equities, the appellate panel expressed skepticism that parents’ financial help should not be imputed to husband because they offered to pay $250,000 to ex-wife to keep their child in the U.S.