CALIFORNIA ATTORNEY'S FEES

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  Ex-husband in Marriage of Thompson, Case No. A164210 (1^st Dist., Div. 1 Nov. 7, 2023) (unpublished) got hit with an adverse section 271 sanctions award of $300,000.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.

Appealability, Family Law: Failure To Independently Appeal Family Code Section 271 Sanctions Motion Meant The Merits Could Not Be Reviewed

$25,000 Sanctions Order Was Not Subject To Review.

            In Marriage of Freeman, Case No. B311411 (2d Dist., Div. 6 Dec. 6, 2022) (unpublished; opinion after rehearing), ex-wife was peeved she was assessed with Family Code section 2071 sanctions to the tune of $25,000.  However, her challenges could not be entertained because she did not appeal from the postjudgment sanctions order. 

Family Law, Sanctions: $73,000 Fee Award, $220,952 Expert Fee Award, And $200,000 Sanctions Award Under Family Code Section 2107(c) Were Not Erroneous

Statutory Provision Allows For These Awards Where An Ex-Spouse/Ex-Partner Fails To Satisfy His/Her Disclosure Violations In A Dissolution Proceeding.

            Family Code section 2107(c) allows a family law judge to award fees, costs, and sanctions for disclosure violations during a dissolution proceeding, with certain disclosure obligations triggered by the service of the divorce action.  In Marriage of Matkovic, Case No. H047406 (6^th Dist. Nov. 14, 2022) (unpublished), ex-wife was hit with $73,000 in attorney’s fees, $220,952 in expert costs, and $200,000 in deterrence sanctions under section 2107(c).  Although hefty, the Sixth District found the awards were no abuse of discretion by the lower court.  The appellate court affirmed these rulings, but it did remand for a reduction in an award under Family Code section 1101(g) [limiting misappropriation awards to an ex-spouse’s community interest in an undisclosed or transferred asset]. 

Family Law, Sanctions: Husband’s Dismissal of Joinder Complaint Involving Wife’s Brother Did Not Divest Lower Court Of Jurisdiction To Impose Sanctions Against Brother And In Favor Of Husband For Frivolous Motion Under Family Code Section 271

$58,400 In Sanctions Were Imposed.

            In In re Marriage of Blake & Langer, Case No. B311966 (2d Dist., Div. 4 Nov. 10, 2022) (published), husband filed a joinder complaint against wife’s brother and wife’s father in wife’s dissolution action.  Wife’s brother filed a frivolous motion to disqualify husband’s attorneys.  Husband filed a Family Code section 271 sanctions motion against wife’s brother, with the lower court requesting supplemental documentation and with husband voluntarily dismissing his joinder complaint against both wife’s brother and father.  Later, the lower court awarded husband $58,400 in sanctions as against wife’s brother.

            The appellate court rejected brother’s argument that husband’s voluntary dismissal of the joinder complaint divested the lower court of jurisdiction to impose 271 sanctions, because the sanctions proceeding was a collateral one and the procedural posture of the dismissal was inconsequential.  (See Day v. Collingwood, 144 Cal.App.4^th 1116, 1125-1126 (2006).)

Family Law, Substantiation Of Reasonableness Of Fees: Attorney Fee Award To Husband Prevailing In Restraining Order Matter Reversed Due To Lack Of Information Necessary For Trial Court To Perform A Lodestar Calculation

An Unsworn Statement Made By Husband’s Counsel, As To His Hourly Rate And Time Spent Working On The Case, Did Not Support The Trial Court’s Lodestar Calculation.

            In Marriage of Halamandaris, Case No. E076933 (4^th Dist., Div. 2 October 10, 2022) (unpublished), husband defeated wife’s attempt to obtain a restraining order under the Domestic Violence Prevention Act (Fam. Code, § 6200 et seq.), then successfully moved for $38,395 in prevailing party attorney fees under Fam. Code, § 6344 – which allows for an award of fees and costs to the prevailing party in any domestic violence restraining order matter.

            Wife’s argument against husband’s fee request fared much better on appeal than it did in the trial court – namely that husband had failed to carry his burden of proof regarding the $38,395 in fees by failing to provide a basis for the fees requested.  Agreeing with wife’s contention that the fee award was not supported by substantial evidence, the 4/2 DCA reversed and remanded for a redetermination of the fee award. 

            The only evidence provided by husband’s counsel in support of the fee request was a list of tasks performed by him and his staff, and a statement that husband had incurred a total of $38,395 in fees.  Husband’s counsel submitted nothing to evidence the number of hours spent on the case, by whom the hours were spent, and at what rate – thereby failing to provide the information necessary for the trial court to complete the lodestar calculation, which involves the trial court first determining the actual hours spent by counsel on the case, then subtracting any hours it finds inefficient or unreasonable, and finally, it multiplies that amount by the applicable billing rate (if it finds the rate reasonable).  An unsworn statement made during the fees hearing by husband’s counsel, as to his hourly rate and time spent working on the case, were insufficient to support a lodestar calculation.  “[A] fee request ordinarily should be documented in great detail.” (Weber v. Langholz, 39 Cal.App.4th 1578, 1587 (1995).)

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

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

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

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

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

Failure To Rule Was Prejudicial, Leading To A Reversal.

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

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

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

Trial Transcript Records Are Key In This Area.

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

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

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

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

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

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

Family Law: Marriage of Nakamoto and Hsu Now Published

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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