CALIFORNIA ATTORNEY'S FEES

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            In Marriage of Luu and Avritch, Case No. A161935 (1^st Dist., Div. 1 June 29, 2021) (unpublished), the trial court sanctioned ex-wife $85,000 under § 271(a) after repeatedly warning her that the relief she sought was beyond that required under the terms of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            In Marriage of Behrend, Case No. B305380 (2d Dist., Div. 3 June 22, 2021) (unpublished), the trial court granted wife’s request for a modification to monthly child support payments – increasing them from $989 to $10,658 – and ordered $20,000 of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.

Family Law, Sanctions: Sixth District Affirms $75,000 In § 271 Sanctions Against Ex-Wife With Mental Health Issues And Denial Of Her § 2030 Needs-Based Attorney Fees Request Despite Trial Court’s Failure To Make Express Findings

Wife Failed To Take Advantage Of Protections Afforded To Parties Suffering Mental Health Issues And She Suffered No Prejudice When Trial Court Failed To Make Express Findings Because It Considered And Addressed The Same Statutory Factors In Determining Spousal Support.

            Under California Rules of Court, Rule 1.100, parties can seek accommodations from the trial court, pursuant to the Americans With Disabilities Act of 1990 (ADA) (42 U.S.C. § 12101 et seq.), or other applicable state and federal laws.  Alternatively, a party can participate in the litigation through a guardian ad litem.  (Code Civ. Proc., § 372 et seq.)

            Husband made such a request for wife in Marriage of Taylor, Case No. H045227 (6^th Dist. October 30, 2020) (unpublished), requesting appointment of a guardian ad litem due to concerns about wife’s ability to participate in proceedings based on her claimed mental health issues.  However, husband dismissed request when wife opposed and stipulated to an independent evaluation along with the release of certain medical records.  This came back to bite him, in the form of delays and substantial, unnecessary attorney’s fees and costs, when wife failed to execute documents related to the parties’ agreement regarding the division of certain marital assets, began raising issues previously resolved, and requested a continuance of the final status conference – claiming her PTSD was causing her great difficulty in reviewing and comprehending documents, and completing tasks.

            When wife’s conduct prompted husband to seek Family Code § 271 sanctions against her, the trial court awarded him $75,000 – finding billing statements submitted by husband to be reasonable, and commenting that “[t]hat doesn’t nearly being to make [husband] whole, but I think it is a fair and appropriate ruling given the totality of the circumstances here.”  Additionally, the trial court denied wife’s request for needs-based section 2030 attorney’s fees without making express findings supporting the denial.

            On appeal, wife argued that the trial court abused its discretion in determining that she engaged in sanctionable conduct because her conduct was the result of her mental health condition and was not intentional.  However, the Sixth District disagreed – finding that sanctions are based on a party’s conduct that frustrates the policy of the law to promote settlement of litigation and reduction of litigation costs, not the party’s intent, and substantial evidence supported the sanctions.  Additionally, wife had the opportunity to take advantage of protections afforded to parties suffering mental health conditions, but failed to timely do so.

            As to wife’s needs-based fees request, the appellate panel found the trial court erred in not making the requisite express findings for its denial, but that the trial court’s error was not prejudicial to wife. Immediately preceding its consideration of wife’s section 2030 request, the trial court addressed each statutory factor it was required to consider and weigh in ordering long-term spousal support – the same factors considered when determining whether to award section 2030 fees – and determined wife had significant liquid or investable assets, and that the parties had relatively equal financial circumstances.

Family Law: Ex-Wife’s $100,000 Needs-Based Fees Request, Where Husband Had Lots Of Expenses And Her Request Made At Eleventh Hour, Was Properly Denied

Timing, Circumstances, And Nature Of Request Are All Key Concerns In This Area.

            In Marriage of Tearse, Case Nos. A155541/A156019 (1^st Dist., Div. 4 Oct. 21, 2020) (unpublished), ex-wife was not pleased when the family judge denied her needs-based fee request for $100,000.  The problem was she did not defeat the deferential abuse-of-discretion standard of review with respect to denial of her request.  The record showed that, despite the disparity in finances between herself and ex-husband, he had substantial expenses such that he could not pay this substantial request and also serviced his business and his own attorney’s fees in the divorce.  Expenses were a legitimate concern on a needs-based motion.  It also was not reasonable for ex-wife to ask for this amount of money given there was a discovery cut-off and she did not retain experts before that cut-off, with no explanation for the delay in the request—a totality of circumstances which salted the result for the appellate court. 

Family Law: Where Ex-Husband’s Living Expenses Made Him Unable To Pay Requested Needs-Based Fees Of $100,000, They Were Properly Denied To Ex-Wife

No Oral Hearing Was Required On Needs-Based Request And Denial Of Ex Parte Request, Which Was Never Ruled On Anyway, Was Nonprejudicial.

            Ex-wife brought a last-minute request for $100,000 in needs-based attorney’s fees after resting her case-in-chief because she needed some more expert help and money for her attorney’s closing argument.  The lower court denied the request, finding that husband’s living expenses made him unable to pay this and also determining that the request was unreasonable given that wife had rested her case-in-chief.  Ex-wife renewed the request in an ex parte motion, with the lower court granting an alternative request but not ruling on the Family Code section 2020/2032 renewed request.

            The lower court’s determinations were affirmed on appeal in Marriage of Tearse, Case No. A156538 (1^st Dist., Div. 4 Oct. 15, 2020) (unpublished). 

            It was not irrational for the lower court to fail to rule on a later ex parte request for fees where the request was repetitious and there were unchanged circumstances.  (In re Marriage of Falcone & Fyke, 203 Cal.App.4^th 964, 976 (2012).)   The appellate court agreed that it was unreasonable for ex-wife to ask for $100,000 in fees to develop a closing argument.  The denial of the ex parte request was not prejudicial because the earlier ruling clearly discerned how the family law court exercised its discretion.  Finally, the lower court did not have to hold oral argument on the needs-based fees request because it did provide each side an opportunity to present its position in writing on the papers (satisfying due process concerns), with no different outcome likely in any event had an oral hearing been held based on the record before the reviewing court. 

Family Law: Ex-Husband’s Denial Of Fees Based On Lack Of Jurisdiction Was Correct Where Fee Request Not Made In Responsive Pleadings Or Requested In A Motion To Leave To Amend Pleadings At The Time Of Trial

Make A Motion To Amend Pleadings, Or Get The Result Here!

            Marriage of Fader, Case No. B296972 (2d Dist., Div. 5 Sept. 24, 2020) (unpublished) is a situation teaching that a litigant should make a motion to amend deficient pleadings in order to preserve an attorney’s fee request.    If not, the consequences are dire:  both the trial and appellate court will sustain a lower court’s conclusion it had no jurisdiction to award fees.

            What happened here was that ex-husband was denied a fees request where he did not ask them in responsive pleadings to a dissolution petition, but only asked for such a recovery at trial.  The fatal flaw was that husband did not ask for permission to amend pleadings to assert a fees request.  That failure was preclusive, because it supported the family judge’s reasoning that he had no jurisdiction to award fees absent a pleadings request or request to amend. 

Appealability, Family Law, Sanctions: $5,000 Sanctions Award Against Ex-Husband’s Attorney Found Not Appealable

Specific Appealability Provisions Governed The Result.

            In Marriage of Rattan & Prasad, Case No. A157880 (1^st Dist., Div. 3 Sept. 24, 2020) (unpublished), ex-husband’s attorney was disqualified and was assessed with a CCP §§ 128.5/128.7 sanctions motion of $5,000 for filing frivolous motions.  Attorney’s appeal of the sanctions order was unsuccessful because (1) CCP § 904.1(a)(12) only allows appeal of sanctions exceeding $5,000; and (2) CCP § 904.1(a)(12) did not rescue appeals of non-discovery sanctions below $5,000 because it only allowed a party to appeal from them.

Family Law, Sanctions: Section 271 Sanctions Affirmed But CCP § 128.7 Sanctions For Reconsideration Motion Reversed Based On Lack Of Appropriate Procedural Compliance

Failure To Follow 128.7 Procedural Requirements Doomed Part Of Sanctions Award.

            CCP § 128.7 sanctions are procedural in nature and rule bound.  Do not follow the procedural rules, and you will lose a sanctions order in the lower court.  Marriage of Nott, Case No. B293055 (2d Dist., Div. 5 Sept. 16, 2020) (unpublished), is a good illustration of what will result in a reversal when due process requirements are not satisfied.

            What happened here was that ex-wife was hit with a Family Code section 271 sanction of $2,500, which was affirmed because the record showed she did not cooperate with a QDRO attorney to get closure on the issue.  However, because she was hit with a $4,500 sanctions for filing a frivolous reconsideration motion (one governed by CCP § 128.7), that one had to be reversed because ex-husband failed to file a separate 128.7 sanctions motion and failed to serve it at least 21 days before filing the motion with the court.  That required a reversal on this aspect of the appeal.  (Martorana v. Marlin & Saltzman, 175 Cal.App.4^th 685, 698-700 (2009).)

Family Law, Sanctions: $4,290 Sanctions Against Wife’s Attorney Under CCP § 128.7 Reversed On Two Grounds

First, A Section 2030 Earlier Denial Request Is Not Subject To Reconsideration Limitations, And Husband Did Not Give Proper Section 128.7 Notice Of The Bases For Sanctions—Double Whammy Reversal On Appeal.

            The Fourth District, Division Two, in Marriage of Hull, Case No. E072222 (4^th Dist., Div. 2 Sept. 15, 2020) (unpublished) was a 3-0 panel decision reversing a $4,290 CCP § 128.7 sanctions award against wife’s attorney for renewing a needs-based motion after an earlier denial of attorney’s fees.  [The concurring justice did not disagree with some footnotes which he believed disparaged appealing attorney.}

            The bases for reversal was two-fold in nature:  (1) a section 2030 renewed motion cannot be sanctioned because it is not subject to reconsideration request limitations; and (2) the section 128.7 motion did not contain the precise grounds upon which sanctions were ultimately granted, something which cannot happen based on the “safe harbor” and due process strictures codified under this statute. 

Family Law, Sanctions: 4/2 DCA Affirms $29,993 In Family Code §§ 271 and 2030 Sanctions Issued Against Ex-Husband, Plus Another $3,892.50 In Code Civ. Proc., § 1987.2(a) Fees And Costs For Ex-Wife’s Successful Motion To Quash

Self-Represented Ex-Husband Learned The Hard Way That Uncooperative Conduct, Unduly Delaying Resolution, And Refusal To Participate In RFO Hearing Can Be Incredibly Costly – And This Was On Top Of $13,200 In Sanctions Already Issued Against Him Earlier In This Case.

            In Marriage of Ehirim, Case No. E072397 (4^th Dist., Div. 2 September 14, 2020) (unpublished), husband and wife with no minor children were involved in a post-judgment dispute related to some community investment account balances held in wife’s name, and community credit card debt paid after separation by wife with her separate property funds.  The investment accounts and credit card debt had not been adjudicated in the earlier judgment – with the trial court reserving jurisdiction to determine the balance of those investments, as well as community bank accounts and debts.

            Self-represented husband was uncooperative in resolving the investment/credit card issues with wife.  As a result, both parties filed requests for orders related to the investment/credit card issues.  Husband then subpoenaed credit card companies and other financial institutions, where wife held accounts, seeking overly broad and irrelevant information – including requests for items such as signature cards – for dates extending well beyond the parties’ date of separation.  Additionally, husband subpoenaed wife’s employer seeking overly broad and irrelevant information that extended well beyond the date of separation.  When husband refused to scale back the scope of his subpoenas, wife successfully moved to quash or limit the subpoenas to relevant time frames and to information relevant to the parties’ dispute.  Afterward, the trial court awarded wife $3,892.50 in fees and costs pursuant to Code Civ. Proc., § 1987.2(a).  Section 1987.2(a) provides the trial court with the discretion to award reasonably incurred expenses, including reasonable attorney fees, to a party prevailing in a motion to quash.

            When trial on the remaining investment accounts and credit card debt came about, husband refused to participate and walked out.  Only wife testified and provided documentation.  After determining community division of the investment accounts, offsets from the paid community credit card debt and other unpaid equalization payments from husband to wife, the trial court issued $10,000 in Family Code § 271 sanctions against husband for his conduct – conduct which frustrated the policy of the law promoting settlement and reducing the cost of litigation.  The trial court additionally ordered husband to pay $19,993 of wife’s attorney fees “as and for additional sanctions” pursuant to Family Code §§ 271 and 2030.  These awards were on top of $13,200 in unpaid sanctions previously issued against husband in this case.

            The 4/2 DCA found no abuse of discretion and affirmed – concluding the trial court’s factual findings and awards of fees/costs and issuance of sanctions were amply supported by the record.

Family Law: Ex-Wife Properly Denied Family Code Section 271 Sanctions Because Financial Need Is Irrelevant

Besides, Ex-Husband’s Jackson Credit Motion Had Sound Factual/Legal Bases.

            In Marriage of Siva, Case No. A157554 (1^st Dist., Div. 4 Aug. 25, 2020) (published), ex-husband was granted a Jackson child support credit, even though the trial judge denied dueling Family Code section 271 sanctions requests filed by both sides.  Ex-wife appealed the merits and sanction denial, with the merits ruling affirmed in a 2-1 decision and with the 271 sanctions denial affirmed by a 3-0 vote.

            Ex-wife initially argued that she needed fees because of financial disparity, but she had made no Family Code section 2020/2032 request such that it would not be entertained the first time on appeal.  She principally argued that she was not as financially secure as ex-husband so that 271 sanctions were justified, but this contention was dispatched because financial need is irrelevant to a 271 request.  Besides that, ex-husband’s credit motion had sound factual and legal basis behind it. 

Family Law: $75,000 Section 271 Sanctions Award Against Ex-Wife Upheld On Appeal

Recorded Supported Award, Plus She Had $343,000 Net Worth—Ability To Pay.

            In In re Marriage of Gagliano, Case Nos. B284308 et al. (2d Dist., Div. 4 Aug. 20, 2020) (unpublished), ex-wife suffered an adverse award of $75,000 in Family Code section 271 sanctions.  The record showed that she presented altered emails to a doctor and delayed completing a 730 evaluation, with ex-husband spending $122,083.82 in attorney’s fees and costs during the process.  It also showed that she had $343,000 in net worth, with the lower court believing that she was willfully suppressing her income pictures.  Guess what, on appeal in light of this record, the 2/4 DCA affirmed.

Family Law: In Two Contentious DVRO Actions, Ex-Husband’s Prior Attorney’s Fees Order, Which Was Rescinded, Was Reversed, Although Ex-Wife’s Fee Award Was Affirmed

Result Is Close To A “Wash.”

            In In re Ankola, Case Nos. H045092 et al. (6^th Dist. Aug. 12, 2020) (published), ex-spouses got involved in some nullity/domestic violence restraining order (DVRO) actions—actually two DVRO actions against each—with mixed success on the DVRO proceedings.  At the end of the day, ex-wife lost the first one, with the trial judge awarding $10,000 in prevailing party fees to ex-husband.  However, there are subsequent subplots to this case.  Ex-wife later brought a second DVRO action which the trial judge granted, later awarding her $10,562.50 in fees.  Close to a wash?  Right.  Not so fast, as lower court proceedings soon showed. 

            Trial judge, based on new evidence produced at the second DVRO action in ex-wife’s favor, “rescinded” the prior fee order in favor of ex-husband in the first DVRO action.  The lower court did so, ostensibly because it believed ex-husband was untruthful in the second DVRO action.  Ex-husband appealed, and he should be glad he did.

            Although the fees order in the second DVRO was affirmed as to ex-wife (even though ex-husband prematurely appealed, an appeal which was saved by the appellate court on equitable grounds), ex-husband obtained a reversal on the “rescission” of the prior fee award in his favor in the first DVRO action.  The reason?  The lower court rescinded based on new evidence, such that this was an improper reconsideration decision—more akin to a sua sponte new trial motion grant which is not within the inherent power of the lower court to do when based upon new evidence.

            The result—pretty close to a wash as far as fee orders were concerned.  

Family Law: Wife’s Award Of Attorneys Fees and Costs For Bringing Post-Judgment Emergency Motion For Immediate Transfer Of Community Bitcoins Affirmed On Appeal

Husband’s $189,391 In Bitcoin Transactions, Made After Wife Filed Petition For Dissolution, Were A Breach Of His Fiduciary Duty And In Violation Of The ATROS.

            In Marriage of DeSouza, Case No. A156311 (1^st Dist., Div. 3 August 10, 2020) (unpublished), wife learned for the first time, after entry of the dissolution judgment, that husband had not been forthcoming about the three bitcoin transactions he began conducting three months after she served him with her petition for dissolution. Wife successfully moved for an emergency order compelling husband to immediately transfer her full interest in the community bitcoins to her.  She additionally received dividend funds paid on the bitcoins in the form of cryptocurrency – along with attorney fees and costs incurred for bringing the post-judgment motion.

            On appeal, husband argued that he did not breach his fiduciary duty as the information he withheld about his bitcoin transactions was not material and that there was no substantial evidence that his breach impaired wife’s interest in their community estate.  The 1/3 DCA found no merit in husband’s arguments and affirmed – agreeing with the trial court’s findings that husband had breached his fiduciary duty to wife by committing a series of transgressions surrounding his purchase and handling of the bitcoins.  First, he violated the automatic temporary restraining order (ATROS) served upon him with wife’s dissolution petition, which prohibited him from making unilateral decisions involving the community estate.  Additionally, husband had concealed his bitcoin purchases and use of proxies in two of the purchases, concealed the fact that only a portion of the bitcoins he purchased had been transferred to his digital walled while the balance remained with the bitcoin exchange, and had failed to inform wife that the bitcoin exchange had filed bankruptcy – ultimately tying up a substantial portion of the bitcoins in bankruptcy.  These were material facts that should have been disclosed to wife to allow her the ability to protect her interests in the bitcoins by objecting to a division in kind of the bitcoins and/or requesting that the trial court use its equitable powers to protect her from husband’s bitcoin transactions. 

            Interestingly, bitcoins husband had purchased for almost $45,000 – which were tied up in bankruptcy (and for which husband failed to file a bankruptcy claim for the funds – testifying “it wasn’t worth chasing [the bankrupt exchange] for little money”) had appreciated in value to around $8 million around the time wife learned of husband’s concealments.

Family Law: $5,700 Family Code Section 2030 Borson Award To Ex-Wife Was No Abuse Of Discretion

Borson Challenge Rejected, With Record Showing Disparity In Assets Between Former Spouses.

            In Marriage of Swain, Case No. G058117 (4^th Dist., Div. 3 Aug. 3, 2020) (unpublished), ex-wife’s attorney was awarded $5,700 in Family Code section 2030 fees, payable by ex-husband to ex-wife, after her current attorney filed a request but was substituted out before the fee award was made.  Ex-husband appealed, but the 2030 order was affirmed.  First up was ex-husband’s argument that the family law judge had no jurisdiction to hear a Borson (In re Marriage of Borson, 37 Cal.App.3d 632 (1974)) request, which is one where a client-discharged attorney—with the client’s consent—may file a motion for an award of fees to attorney while the attorney is still of record, with the family court having discretion to set the amount of fees and deciding whether they are to be paid by the client or the opposing party.  That argument failed because the attorney substitution was filed after the Borson request was made such that the lower court had jurisdiction to hear it.  (In re Marriage of Erickson & Simpson, 141 Cal.App.4^th 707, 713-714 (2006).)  Although some information on Judicial Council forms was wrongly checked or omitted, there was no prejudice because the declarations and income/expense statements left no doubt about what was at issue.  Finally, the record did show that the lower court reviewed the billing statements, unlike the deliberate failure to review requiring a reversal under different facts in In re Marriage of Tharp, 188 Cal.App.4^th 1295, 1314-1315 (2010).  Justice Fybel authored the 3-0 panel opinion. 

Family Law: $100,000 In 2030/271 Needs-Based Fees And Sanctions Against Ex-Husband, Lawyer With A Profitable Law Firm And Equity In A House, Affirmed On Appeal

If You Assert Inability To Pay, Make Sure You Have The Proper Ammunition!

            We have to say, if you are going to appeal needs-based fee awards under Family Code sections 2030/2032 or sanctions under Family Code section 271 based on inability to pay, you better do the math and convincingly show the appellate court why you could not pay.  Ex-husband did not do that in Farzam v. Charchian, Case No. B293972 (2d Dist., Div. 3 July 28, 2020) (unpublished), after the lower court awarded ex-wife $75,000 in need-based fees and $25,000 in sanctions (payable $1,500 per month). 

            Ex-husband only appealed based on the contention he did not have the ability to pay these awards.  The problems for him were multiple in nature: (1) he had substantial earning capacity through his law practice; (2) he had $1.5 million in home equity in a Brentwood residence; and (3) wife left the work force to raise a family.  What more was needed?  None, either for the trial or appellate courts.

Family Law: Husband Successfully Challenges Trial Court’s Award Of Section 1101(g) Attorney Fees To Wife And Gets A Second Chance At § 2107(c) Sanctions Against Wife

The Trial Court Erred In Its Interpretation Of Family Code §§ 1101 And 2107.

            In Marriage of Yiu and Liu, Case No. B293754 (2d Dist., Div. 3 July 17, 2020) (unpublished), husband appealed the trial court’s award of attorney fees to his wife under Family Code § 1101(g) and its denial of his requested § 2107(c) sanctions against his wife – arguing the trial court erred in its interpretation of Family Code §§ 1101 and 2107, and the 2/3 DCA agreed. 

            Section 1101(a) allows a breach of fiduciary duty claim if the breach causes an impairment to the claimant spouse’s existing one-half interest in community property – with 1101(g) providing for an award of attorney fees and costs in addition to 50% of any asset undisclosed or transferred in breach of fiduciary duty.  Wife based her claim for fees, under section 1101, on husband’s failure to inform her he had repaid two $35,000 loans to his father from community funds a month before the couple separated.  Although wife’s interest in the community estate was not impaired by husband’s loan repayments and she was not awarded 50% of the loan repayments, the trial court concluded it was required to award fees to wife for husband’s breach.  Not so, said the appellate panel.  Because husband’s breach did not result in impairment to wife’s one-half interest, wife had no claim under 1101(a), and therefore no entitlement to remedies under section 1101(g) – including attorney fees.

            As to husband’s sanctions request against wife – he sought $300,000 under section 2107(c) because wife failed to disclose financial accounts and transactions in discovery and at trial.  Husband additionally sought fees and costs as sanctions under section 271 based on the same conduct.  The trial court denied husband’s request under 2107(c), and awarded $22,000 under section 271 – concluding husband’s section 2107 request was not properly noticed, prepared and presented, and that section 271 was “the appropriate avenue for [husband’s] fees and costs.”  The 2/3 DCA disagreed with the trial court’s conclusion.  The trial court and parties agreed to bifurcate attorney fees and sanctions issues, the parties followed the briefing schedule set by the trial court, and the trial court had instructed husband that he did not need to file his request as a formal request for order.  Because the trial court had summarily denied husband’s section 2107 request, the appellate panel was unable to determine whether husband was prejudiced – whether the trial court would have awarded sanctions under section 2107 and, if it had, whether it would have awarded more than the $22,000 – and reversed and remanded with instruction that the trial court consider husband’s section 2107 motion.

Family Law: Ex-Husband’s Adverse $31,500 Sanctions Award Under Family Code Section 271 Sustained On Appeal

Sanctions Do Not Need A Precise Correlation To Sanctioned Conduct And The Specific Fees.

            In Lebid-Jurtschyk v. Lebid-Jurtschyk, Case No. B300370 (2d Dist., Div. 4 June 25, 2020) (unpublished), ex-husband was hit with Family Code section 271 sanctions for insisting on too high of a listing price for a house, not signing documents to get the deal done, and not contributing to repairs on the house.  Ex-husband’s appeal was not successful, given the facts showed he was not cooperative in trying to settle the divorce issues.  With respect to the argument that some related time was not compensable, the appellate court indicated that section 271 does not require a precise correlation between the sanctioned conduct and the fee award, a determination affirmed on appeal.  (In re Marriage of Corona, 172 Cal.App.4^th 1205, 1226 (2009).)

Family Law: 1/2 DCA Affirms Denial Of Needs-Based Attorney Fees Requested By Wife Under Family Code § 2030

Based On Trial Court’s Analysis Under Family Code § 4320, Husband Lacked The Financial Ability To Afford His Own Attorney Much Less Contribute To Wife’s Attorney Fees.

            Family Code § 2030 provides California family law courts authority to level the playing field in dissolution actions, where sufficient disparity exists between the parties in their access to legal representation, by requiring one party to pay attorney fees to the other party.

            In Korkka v. Petrenko, Case No. A156601 (1^st Dist., Div. 2 June 19, 2020) (unpublished), wife, represented by legal counsel, unsuccessfully moved for section 2030 needs-based fees from her self-represented husband.  The trial court addressed the fees request, as well as other questions at issue between the parties, in a detailed 33-page statement of decision – basing denial of the section 2030 fees on its analysis of section 4320 factors in determining spousal support.  This analysis supported husband’s contention that no substantial disparity existed where he was unable to afford his own legal counsel for the dissolution action and lacked the financial ability to contribute to wife’s attorney fees.  Wife appealed.

            The 1/2 DCA found no abuse of discretion and affirmed.  Both parties were self-represented on appeal and provided briefing not in compliance with appellate rules or authorities.  The appellate panel described wife’s arguments for reversal of the trial court’s order on fees – simply that husband had more access to funds to pay fees, the husband had a higher earning capacity, and that his spousal support payments to her were set to end in short order – as “manifestly insufficient.”  As the 1/2 DCA explained, a self-represented person must follow the correct rules of procedure and expect to receive the same treatment as if represented by an attorney.  (Taylor v. Bell, 21 Cal.App.3d 1002, 1009 (1971); Nwosu v. Uba, 122 Cal.App.4^th 1229, 1247 (2004).) 

Family Law, Special Fee Shifting Statute: Intermediate Appellate Courts Issue Several Family Law Or Neighborhood Disputes Opinions Where Fee Requests Were Granted Or Denied In Unpublished Decisions—Abuse Of Discretion Standard Guided All Of Them.

1.         Marriage of Harcke, Case No. B288727 (2d Dist., Div. 7 June 16, 2020) (unpublished).

            In this case, father was sanctioned for $15,400 in attorney’s fees for failure to be cooperative in settlement negotiations under Family Code section 271.   That was no abuse of discretion given that he “out of hand” and unequivocally rejected mother’s settlement offer to impute significant income to her for support, visitation, and other issues—not in the spirit of section 271.

2.         Taheri v. Chavooshi, Case No. B296876 (2d Dist., Div. 2 June 17, 2020) (unpublished).

            Here, after being presented with dueling domestic violence restraining order (DVRO) petitions, the lower court dismissed the male’s petition and refused to award discretionary attorney’s fees under Family Code section 6344(a).  Again, this was no abuse of discretion under all of the circumstances, given the trial judge found that each side had gone their own way and a fee award would have only rekindled ill will.

3.         Corso v. Bruhl, Case No. D075804 (4^th Dist., Div. 1 June 17, 2020) (unpublished) and  Corso v. Holtman, Case No. D075859 (4^th Dist., Div. 1 June 17, 2020) (unpublished).

            Finally, we have a two-fer.  Neighbor Corso sued two neighbors seeking civil restraining orders.  He lost both efforts, with the trial judge finding discrepancies between his petition declarations and hearing testimony.  In Bruhl, he suffered an adverse $10,000 fee award under the discretionary civil restraining order fee-shifting provision, CCP 527.6(s).  This was no abuse of discretion given the lack of a complete record of papers below and in light of the other side not asking for all incurred fees.  A somewhat similar result occurred in Holtman, where the lower court awarded $25,000 in fees, given that the other side actually incurred about $51,000 fees and smartly only asked for half of them (which happened to be the award). 

Appealability, Discovery, Family Law, Requests For Admission, Sanctions: Appeal Dismissed For Petitioner Who Was Dissatisfied With Trial Court’s Order On His Motion To Have Requests For Admission Deemed Admitted And For Sanctions

The Appellate Court Has No Jurisdiction To Review A Discovery Order.

            Petitioner father and respondent mother in Minasian v. Katz, Case No. A158517 (1^st Dist., Div. 2 June 11, 2020) (unpublished) were involved an incredibly protracted action – dating back to 2004 – regarding their child who was born the year before. 

            In 2018, petitioner served respondent with Requests for Admission, but considered petitioner’s original and second sets of responses inadequate, and filed a Request for Order to have the RFAs deemed admitted and for sanctions against respondent.  When the trial court ultimately ordered sanctions of $195 against respondent and that she file proper responses within 21 days, petitioner appealed – arguing the trial court exceeded its authority and discretion in ruling the respondent would have 21 additional days to file her RFA responses.  Unfortunately for petitioner, his appeal turned out to be an exercise in futility.  The 1/2 DCA dismissed.  The panel concluded petitioner’s appeal was of a discovery order, not a judgment, and that it was without jurisdiction to rule on the discovery order given there is no statutory provision allowing for an appeal of an order on a discovery motion.  (Lund v. Superior Court of Orange County, 61 Cal.2d 698, 709 (1964); Code Civ. Proc. § 904.1.)  

Family Law: Lower Court’s Award Of § 2030 Pendente Lite Fees To Ex-Wife, $45,000 Out Of $93,000 Request, Was No Abuse Of Discretion Despite An Appeal By Ex-Husband Firefighter

Nothing Showed Any Error In The Lump Sum Payment, The Monthly Payments, Or Still Ordering Them Even Though Ex-Wife Was Cohabitating With Someone Else!

            We have posted, very frequently, on Family Code section 2030 “needs-based” awards to spouses, which are pendente lite awards to spouses with financial disparity needing an award during a dissolution proceeding to “even the playing field” relating to a spouse with more resources.  In the end, many of the results are equitably based, although financial data usually is provided to support such an award.  This next case nicely encapsulates all of these principles.

            In Heredia v. Heredia, Case No. B296823 (2d Dist., Div. 2 June 4, 2020) (unpublished), an ex-wife with tangibly lesser financial resources—following a settlement—moved to recover section 2030 fees of $93,000 against her ex-husband firefighter.  The trial judge, after weighing financial submissions from each side, ordered ex-husband to pay ex-wife $45,000 – with $20,000 upfront and $1,000 a month for the next 25 months.

            Ex-husband’s appeal of this order was unsuccessful.  Ex-husband’s plea of not being able to meet the order was not helped by the fact that he had made large cash withdrawals of over $32,000, such that the appellate court had no problem inferring he could pay the $20,000 lump sum amount.  With respect to the longer-term $1,000 monthly payments, he did work overtime routinely so that these earnings could be taken into account.  Ex-husband then argued that ex-wife really did not need the assistance because she was cohabitating with someone else, but the appellate court observed that ex-husband offered no authority that the presumption applying in the spousal support context applied to section 2030 fees, not to mention that ex-wife still needed spousal support even with her “new mate’s” support. 

Family Law: Assessment Of $30,000 In Section 271 Sanctions Against Husband Was No Abuse Of Discretion

First District Was Not Persuaded By Husband’s Claim That The Sanctions Equated To 30% Of His Total Net Worth.

            Husband in Lacourciere v. Lacourciere, Case No. A155881 (1^st Dist., Div. 1 June 1, 2020) (unpublished) appealed a $30,000 Family Code § 271 sanctions award assessed against him to the benefit of his Wife.  He argued abuse of discretion claiming the sanctions award constituted an unreasonable financial burden on him as it equated to 30% of his total net worth, but the 1/1 DCA did not bite. 

            First, husband had forfeited the argument by failing to oppose the award in the lower court on the basis of its relation to his net worth.  Second, even if husband had preserved the argument, it was without merit as the record on appeal clearly demonstrated that the lower court considered husband’s annual earnings of substantially more than $200,000 and assets.  Husband’s claims on appeal concerning the value of his assets and net worth simply were not supported by the record.  Finally, although not discussing in detail husband’s conduct which gave rise to the sanctions, the 1/1 DCA commented that husband “has only himself to blame for any financial pressure he faces as a result of the attorney fee order” as the lower court’s order was “eminently fair” based on husband’s “truculent and self-defeat[ing]” behavior in failing to act in good faith, not being forthright in his financial disclosures, and over-litigating the case.

Family Law: $15,000 In Section 271 Sanctions And $25,000 In Breach Of Fiduciary Duty Fees Were No Abuse Of Discretion

Even If Explanations Could Have Been Clearer, No Prejudice Shown By Appealing Ex-Wife.

            Presence of prejudice is a critical factor in any appeal.  The next case, Marriage of Effner, Case No. D074478 (4^th Dist., Div. 1 May 18, 2020) (unpublished), so demonstrates.

            There, ex-wife—who was found by the lower court to have diverted assets to her own benefit—was hit with Family Code section 271 sanctions of $15,000 and with attorney’s fees under Family Code section 1101(g) for not being candid with respect to treatment of assets.

            The appellate court affirmed these orders.  Ex-wife could point to no support for her argument that the trial judge had to make a detailed explanation on her ability to pay with respect to the section 271 sanctions given his rather pointed remarks at the oral hearing.  On the section 1101(g) issue, ability to pay is a concern and the lower court’s reasoning was somewhat cursory, but no prejudice was demonstrated based on its comments on the section 271 sanctions issue (which inferentially tended to show ex-wife did have the financial resources to pay the fees order).