CALIFORNIA ATTORNEY'S FEES

Family Law: Husband Properly Assessed DVPA Mandatory Fees Because Of Wife’s Financial Disparity

Wife Prevailed In Obtaining Certain DVRO Orders Which Justified Mandatory Fees.

            In In re Marriage of Karen & Jason H., Case No. E068153 (4^th Dist., Div. 2 Aug. 21, 2019) (unpublished), among other things, wife was awarded some attorney’s fees (all in all, totaling $275,000) against husband.  However, some related to her winning domestic violence orders along the way, including personal-conduct and stay-away orders as well as a stipulated restraining order.  That was a sufficient basis under the Domestic Violence Prevention Act (DVPA), which has a mandatory fee-shifting clause in favor of a prevailing party like wife here who could not afford the fees based on the relative financial positions of the two sides.  (Fam. Code, § 6344(b).) 

Family Law, Sanctions: Father Making Another Sanctions Motion After Trial Judge Already Ruled On Prior Request Was Properly Denied

“A Party Cannot Be Sanctioned Twice For the Same Misconduct.”

           Presiding Justice Gilbert, who has a unique writing style, summed up the “end result” in Marriage of Anka & Yeager, Case No. B289610 (2d Dist., Div. 6 Aug. 19, 2019) (unpublished) this way: “A party cannot be sanctioned twice for the same misconduct.”

            In this case, a trial judge earlier imposed sanctions against a mother and her attorney to the tune of $50,000, jointly and severally (payable to the superior court), for disclosing confidential information contained in a child custody evaluation report, which authorizes a lower court to impose monetary sanctions under Family Code section 3111(d).  Mother and her attorney appealed, with the 2/6 DCA affirming the sanctions award against the attorney, but not as to mother.  While the appeal was pending, father made a motion for attorney’s fees and costs for the appeal as additional sanctions, which was denied by the trial judge. 

            The 2/6 DCA affirmed the “further” sanctions denial.  The problem here was that the trial court had previously imposed sanctions for attorney’s conduct, such that “[i]t cannot now impose additional sanctions for the same misconduct.”  (Sabado v. Moraga, 189 Cal.App.3d 1, 10-11 (1987).)

Family Law: Ex-Wife In Languishing Dissolution Matter Properly Denied Pendente Lite And Request For Appellate Fees To Process An Appeal

Languishing Nature Of Case And Ex-Wife’s Debt To Ex-Husband Figured In The Result.

            In Marriage of Charchian & Mahgereftech, Case No. B270201 (2d Dist., Div. 2 July 31, 2019) (unpublished), ex-wife let a dissolution case languish for five years, went through multiple attorneys, eventually had a judge conclude she was entitled to very little pendente lite attorney’s fees because she had availed herself of community property funds, owed a debt of $150,000 to ex-husband at the end of the day, was not ready for trial, and was denied a request for fees to appeal determinations in the case because of a lower court’s conclusion that the appeal could not be shown to have been brought in good faith.

            The 2/2 DCA affirmed in a very exhaustively reasoned decision.  On the request for attorney’s fees to process appeal, the appellate court discussed In re Marriage of Davis, 141 Cal.App.3d 71, 78 (1983), which set forth four factors which a party must satisfy to warrant an award of fees on appeal: “(1) the requesting spouse must show a need for the award; (2) the paying spouse must have the ability to pay the fees; (3) the appeal must be taken in good faith; and (4) there must be reasonable grounds for the appeal, although this does not imply that the requesting spouse must prevail on appeal. [Citation.]”  Appellant argued that Davis was no longer good law, but the appellate court rejected this argument because the Legislature had not acted to undermine it for over 30 years.  Beyond that, under these factors, the good-sized debt owed to husband and lower court’s conclusion of not seeing much merit to the appeal further supported affirmance of decision to not authorize fees for an appeal not seen as having much substance.   

Family Law: Section 271 Sanctions Of $1,000 Assessed Against Ex-Husband’s Counsel Was Reversed On Appeal

Section 271 Sanctions Can Only Be Awarded Against A Party; Proper Remedy Is To Seek CCP § 128.5 Sanctions Against Counsel.

            A family law judge assessed Family Code section 271 sanctions of $1,000 against ex-husband’s attorney.  That award was reversed in Martinez-Huff v. Huff, Case No. B284241 (2d Dist., Div. 3 July 18, 2019) (unpublished) because section 271 sanctions can only be assessed against a party, not a party’s counsel.  (Burkle v. Burkle, 144 Cal.App.4^th 387, 403 n. 7 (2006); Orange County Dept. of Child Support Services v. Superior Court, 129 Cal.App.4^th 798, 808 (2005).)  The proper remedy was to seek CCP § 128.5 sanctions against counsel, something which was not done.  (In re Marriage of Daniels, 19 Cal.App.4^th 1102, 1110 (1993) [construing predecessor statute].) 

Discovery, Family Law: $2,500 Discovery Sanctions Order Reversed In Favor Of Responding, Prevailing Party Because No Competent Declaration Of Incurred Expenses Was Presented

CCP § 2023.040 Was The Key Statutory Provision.

            Just to show you that technicalities can matter in the discovery area, the First District, Division 2 reversed a $2,500 discovery sanction against ex-wife in Marriage of Stupp v. Schilders, Case No. A154396 (1^st Dist., Div. 2 July 10, 2019) (unpublished).  What happened is that a party moving to compel discovery responses lost, and the lower court awarded the successful responding party with $2,500 in discovery sanctions.  This one had to be reversed because the trial judge, earlier, had stricken a declaration filed by the responding party because it was not signed by the actual declarant and that was the only proof of what was expended in responding to the motion to compel.  Given the lack of evidence on expenses incurred in responding to the discovery motion, the sanction award had no support at all.  (Code Civ. Proc., § 2023.040.) 

Family Law: $37,679.50 Needs-Based Award To Ex-Husband Reversed, Husband’s Sanction Request Was Not Appealed, And Denial Of Further Needs-Based Fees To Ex-Wife Reversed For Failure To Make Findings

Evidence in Record Did Suggest Ex-Wife Had Disparity In Ability to Pay.

            In Huynh v. Cao, Case No. A154556 (1^st Dist., Div. 4 June 27, 2019) (unpublished), the 1/4 DCA had to review several fee/sanctions awards and rulings in a dissolution matter.  First of all, it reversed a $37,679.50 fee award to ex-husband because he never asked for needs-based fees, only discovery sanctions against ex-wife’s counsel (not fees).  With respect to the lower court’s denial of fees as sanctions, ex-husband did not appeal that ruling such that he was not entitled to this type of relief.  Lastly, the appellate court reversed a denial of additional fees to ex-wife because the lower court failed to make findings about the existence of a disparity in access and ability to pay, with the failure being prejudicial because evidence did demonstrate a disparity in income between the parties.  (In re Marriage of Shimkus, 244 Cal.App.4^th 1262, 1279-1280 (2016).) 

Family Law: Although Matter Overlitigated and Ex-Wife Had Means To Meet Her Fees, Error To Not Grant Her Needs-Based Fees Where Ex-Husband’s Failure To Segregate Separate Property Consumed Lots Of Attorney and Expert Fees In “Tracing” Activities

More Nuanced, Granular Analysis Required Under The Circumstances.

            In re Marriage of Ciprari, 32 Cal.App.5^th 83 (2d Dist., Div. 1) (2019) is an important case both for the type of expert testimony which can be allowed in “tracing” cases as well as holding that needs-based fees can be allowed to a litigant having access to a significant asset base but needing to litigate because the opponent drove up the litigation costs by failing to segregate separate property.

            In this one, ex-husband came to about a 20-year marriage with around $2 million in separate property.  During the marriage, there were assets maintained and preserved both with community and ex-husband’s separate property funds, with a forensic accountant needing to trace the use of both and driving up costs for both sides.  At the end of the day, ex-wife had expended $1 million in fees (only obtaining $85,000 in reimbursements) even though she did have access to a significant community property asset base.  In contrast, ex-husband had expended $1.2 million, half of which was on his “tracing” forensic accountant.  Ex-husband was gainfully employed and had the better asset base, while ex-wife was not employed (and had no pending prospects for employment) albeit having an asset base from which to fund her own fees.  The trial court denied ex-wife’s request for additional fees under needs-based Family Code section 2030/2032 statutes, after looking at the “finances” and observing that the matter had been overlitigated.

            The fee denial was reversed on appeal. 

            The fact that ex-wife could pay for her own fees did not preclude a needs-based award, much less the circumstances that the matter had been overlitigated.  The critical factor in this one was that ex-husband had failed to segregate his separate property, driving up attorney’s and accountant’s fees for wife so that a proper “tracing” had to be done to get at the bottom of things.  Under these circumstances, a more nuanced and granular inquiry was required as to reasonableness of ex-wife’s fee request, requiring a reversal and a remand.

            BLOG OBSERVATION AND HAT TIP—This decision is must reading for family law practitioners on the use of expert testimony in “tracing” cases, establishing that the lower court is not shackled in using just the “direct tracing” or “exhaustion tracing” approaches developed in prior case law.  We give a HAT TIP to Anthony D. Storm of Storm Family Law for bringing this case to our attention.

Family Law: Denial Of Ex-Wife’s Request For Needs-Based Fees And 271 Sanctions Of $193,223.43 Was No Abuse Of Discretion

Record Showed She Went Through A Lot Of Attorneys And Rejected Initial Settlement Offers Which Were Within The Realm Of The Ultimate Outcomes In The Dissolution Case.

            In Marriage of Santore, Case No. G055121 (4^th Dist., Div. 3 June 21, 2019) (unpublished), ex-wife was denied a request for $193,223.43 in attorney’s fees based on need (Family Code section 4320) or as sanctions (Family Code section 271).  The 4/3 DCA, in a 3-0 opinion authored by Justice Ikola, affirmed.  The record supported the result based on these facts:  (1) ex-wife represented herself in pro per after going through seven prior attorneys and racking up $204,406.27 in fees, while ex-husband stayed with one attorney throughout; (2) some of the fees were the result of a QDRO attorney’s calculation mistake which caused distrust by ex-wife; and (3) ex-wife’s unfamiliarity with the process caused her to reject ex-husband’s initial settlement offers at an early stage which were within the striking range of the ultimate outcomes.

Family Law: $10,000 Sections 271 Sanctions Order Based On Declarations Was Not Erroneous

Losing Party’s Right To Live Testimony Under Family Code Section 217 Is Forfeited Unless Party Requests Party To Appear At Hearing.

            The 4/1 DCA, in Marriage of George & Deamon, Case No. D073667 (4^th Dist., Div. 1 May 17, 2019) (published), decided that a trial judge can decide a Family Code section 271 sanction motion based on declarations.  The lower court ordered sanctions against ex-wife based on declaration testimony.  She primarily argued on appeal that live testimony was required under Family Code section 217.  Although agreeing up to a point, the appellate court determined that ex-wife forfeited the right to live testimony by not requesting the other side (her ex-husband) to appear at the OSC pursuant to a notice to appear pursuant to CCP § 1987(b), which is incorporated into family law proceedings via Family Code section 210. 

Family Law, Sanctions: Husband Losing Hiding Marital Asset Appeal Was Going To Have To Pay Attorney’s Fees And Frivolous Appeal Sanctions On Remand, Likely, In Some Amount

Rub Here Was That Trial Judge Stayed Any Fee Ruling Pending Determination Of Merits Appeal.

           Although procedurally different in nature, Marriage of Haghighat, Case No. G054993 (4^th Dist., Div. 3 April 17, 2019) (unpublished) demonstrates how family law judges and appellate justices can impose attorney’s fees and frivolous appeal sanctions when a litigant hides marital assets.

            Briefly stated, husband eventually lost a merits appeal that he hid marital assets, which under Family Code section 1101 allows for recovery of interest, attorney’s fees and costs, as well as the invested assets. However, the trial judge stayed any ruling on fees until the appeal on the merits decision was made.

            The 4/3 DCA affirmed the merits decision as well as remanded to the family law judge to determine the initial fees requested under section 1101 as well as sanctions for the frivolous appeal. Although normally the appellate court would determine the frivolous appeal sanctions, this one went back to the lower court to set given that it had to determine the initial fees which had to be awarded also. Justice Goethals authored the 3-0 panel decision.

Family Law: Lower Court’s Failure To Make Certain Needs-Based Findings Under Family Code Section 2030(a)(2) Required A Reversal And Remand

However, Appealing Ex-Wife Not Awarded Costs On Appeal For Failure To Direct Trial Court’s Attention To This Omission.

            Since 2010, needs-based requests for attorney’s fees by family law litigants require family law judges to make findings on whether there is a disparity in access to funds by one party and whether the responding party has the financial resources for representation by both sides. In two published decisions since then, appellate courts have stressed the mandatory nature of this legislative pronouncement. (See In re Marriage of Shimkus, 244 Cal.App.4^th 1266, 1279-1280 (2016) [4/3 DCA]; In re Marriage of Morton, 27 Cal.App.5^th 1025, 1030 (2018) [5^th Dist.].)

            What happened in Marriage of Aldridge, Case No. G055666 (4^th Dist., Div. 3 March 22, 2019) (unpublished) is that a family law judge, commendably trying to end a case, denied a section 271 sanction request (a determination which was affirmed) and awarded a small amount of needs-based fees to ex-wife under section 2030 without making any of the required findings (a determination which was reversed). The appellate court could not find this error to be harmless in nature given that wife did submit financial data showing she was unemployed. Although that required a reversal and remand, the appellate panel—in an opinion penned by Acting Presiding Justice Bedsworth—did not award appellate costs to ex-wife because she could have brought this omission to the lower court’s attention.

Family Law: No Abuse Of Discretion For Trial Court To Issue Parentage Judgment Against Father And Award Of $3,000 In Attorney Fees To Mother, But No Substantial Evidence Supported Amount Of Income Imputed To Father

Attorney Father, Whose Wife Had Passed, Claimed He Entered Into A Strictly No Strings Attached Arrangement With College Student Mother In Exchange For Money. She Claims Otherwise.

        A child with special needs, who suffers from cerebral palsy and chronic lung problems, is at the center of this He Said/She Said in Monterey County Dept. of Child Support Services v. P.H., Case No. H043351 (6^th District, February 28, 2019) (unpublished). Petitioner Mother and Respondent Father had met online. Father claims they entered into an approximate 4-month long, no-strings-attached arrangement in exchange for his monthly payments to her of $600 per month. He claims Mother was responsible for, and confirmed she was taking, birth control, and that he was responsible for providing her with evidence that he did not have a sexually transmitted disease. She claims they had a 6-7 month long dating relationship, that she had made it clear she was looking for long-term commitment, and that he provided her $800-$900 per month to assist with her expenses. Father claims the arrangement ended over a dispute as to whether he was getting what he paid for. She claims the relationship ended and he stopped giving her money when she became pregnant.

        Nonetheless, after the child was born, Mother petitioned the court to establish paternity, for child support, and attorney fees of $5,000. Father did not object to, and repeatedly failed to comply with, the trial court’s order for genetic testing. The court then made its own paternity finding, concluding him to be the father of the child, pursuant to Family Code section 7551 (based on Father’s refusal to participate in the court-ordered genetic testing).

        With regard to child support, Father claimed he had been a stay-at-home dad while his now-deceased attorney wife worked full-time, had last received a paycheck in 1988, had since been a self-employed civil appellate attorney taking only the odd job here and there, and had only earned a gross average of $500 per month every year since 2008. Ultimately, the trial court determined it to be in the child’s best interest to consider Father’s earning capacity in lieu of actual income for determining child support. To that end, the court imputed $4,583 per month to Father based on employment ads and general salary amounts/evidence for new attorneys in the area that were presented at the hearing.

        Finally, the trial court ordered Father to pay Mother $3,000 (in monthly installments of $1,000) of the $5,000 in attorney fees she had requested pursuant to Family Code sections 2030 (needs-based) and 271 (sanctions-based for misconduct), without designating any portion of the award to either section.

        On appeal, Father challenged the Parentage Judgment – claiming the trial court did not consider the “rights of others” in determining parentage, and erred in considering only the child’s rights rather than his. The 6^th District disagreed – viewing section 7551 as a discovery sanction, and concluding that the trial court correctly considered the “rights of others,” meaning the rights of those persons who are entitled to the “probative value of the blood test evidence,” not the rights of the party or “wrongdoer” who refuses to submit to the genetic test as ordered – that the rights of the child supported entry of the Parentage Judgment based on Father’s failure to undertake the court-ordered genetic testing. The 6^th District also did not agree with Father’s argument that substantial evidence did not support the trial court’s determination that imputing income was in the child’s best interest, but agreed that substantial evidence did not support the amount of income imputed to Father. On that issue, the 6^th District found the trial court had abused its discretion, and remanded back to the trial court for further proceedings.

        As for the award of attorney’s fees, the 6^th District affirmed the trial court’s order. Although they agreed with Father, that section 2030 does not apply to actions for determination of parentage, they determined that there are similar needs-based statutes found throughout the Family Code that do apply – citing section 7605 – with the principle that the best interests of the child governs. Further, they found substantial evidence that Father had notice that Mother would seek attorney fees based on the parties’ relative financial circumstances, and that substantial evidence concerning the parties’ circumstances also supported the award.  Based on the 6th District's findings on the needs-based award, it did not address Father's arguments concerning section 271 for sanctions-based fees.

Family Law: Trial Court Did Not Abuse Its Discretion In Denying Wife’s Requests For Attorney Fees.

Wife’s Requests For Award Of Attorney Fees Under Family Code Sections 271 and 2030 Were Denied As Husband’s Conduct Did Not Warrant Sanctions Under Section 271, And No Disparity In Access To Funds Existed Between The Parties Under Section 2030.

            In Marriage of Whooley, Case No. B277145 (2d Dist., Div. 3 February 26, 2019) (unpublished), Husband and Wife entered into a partial settlement agreement to divide certain property and bank accounts. The trial court then divided remaining assets/community property, with consideration to Husband’s employment as an attorney and Wife’s lack of employment that was not likely to change considering the substantial care she provided for the parties’ autistic son, and additionally ordered Husband to pay Wife child and spousal support.

            In her trial brief, Wife requested attorney fees under Family Code sections 271 and 2030. Section 271 allows the trial court to impose fees and costs ‘in the nature of a sanction’ based on the conduct of a party or attorney who frustrates the policy of the law to promote settlement of litigation, and thereby reduce the cost of litigation, and does not require a showing of financial need. Wife claimed that Husband had escalated the litigation by disputing certain facts, but the trial court disagreed and denied her request for fees under section 271.

            Under her needs-based section 2030 request for fees, Wife claimed that Husband would end up with substantially greater assets. In reaching a decision on her requested fees under this section, the trial court considered the parties’ income and need assessments, stipulated income and expense declarations, declarations and exhibits submitted regarding the fee request, reasonable living expenses and the division of property, and took into account that Wife would receive more than half of Husband’s income in child and spousal support and 25% of his bonus income. It determined that there was ‘no disparity between the parties in access to funds.’

            In a later hearing, Wife made an additional request for $30,000 in future appellate fees and costs to retain another attorney. Six days before that hearing, Wife filed a late supplemental request for $230,080.90 in fees. The request for $30,000 was denied as Wife had not identified how her situation had changed to her detriment, and the supplemental request was disregarded due to the late filing.

            On appeal, the 2/3 DCA agreed with the trial court’s findings and affirmed.

Family Law: It Was No Abuse Of Discretion For Trial Court To Find Marriage of 9 Years and 10 Months To Be A Long Term Marriage, Nor To Order Husband To Pay Wife Attorney’s Fees of $2,500.

Husband Seeking To End Spousal Support Was Ordered To Continue Paying For Additional Five Years, Plus Needs-Based $2,500 Toward Wife’s Attorney’s Fee Due To Change In Circumstances After Entry Of Stipulated Judgment – Not Due To Court’s Determination That Their Marriage of Less Than 10 Years Was Long Term.

           In Marriage of Weiskittel, Case No. G055204 (4^th Dist., Div. 3 February 25, 2019) (unpublished), Husband and Wife ended a 9 year and 10 month marriage – though they had cohabitated for years and had children prior to the marriage – with the court finding the marriage to be long term despite the fact that it had lasted less than 10 years.

            In issuing the judgment for dissolution, the court incorporated the parties’ stipulated judgment which defined the marriage as being of 9 years and 10 months, but was silent as to whether it was classified as long term, and provided that spousal support payments to Wife would continue until the death of either party, the remarriage, agreement in writing between the parties, or further order of the court.

            Later, Husband sought to end the spousal support payments claiming the marriage had been short term, that he had been paying for more than half the length of the marriage, Wife’s income had increased by $1,600 per month, and Wife was cohabitating with boyfriend who financially contributed to household expenses. Wife argued, however, that Husband’s income had increased by $2,000 per month, that she was no longer receiving child support payments for their oldest child who had turned 18, and that Husband was able to maintain the marital standard of living while she was not.

            After weighing all the factors, the court ordered Husband to continue paying spousal support for five more years and to pay Wife a needs-based amount of $2,500 for attorney’s fees. Husband was unhappy and appealed, arguing that the court had abused its discretion in determining the marriage long term, and for awarding Wife $2,500 in attorney’s fees.

            The 4/3 DCA upheld the lower court’s ruling. It found the lower court’s ruling to be based on a change in circumstances following entry of the stipulated judgment – not because the lower court had defined the marriage as long term – and was within its right to modify the spousal support and to award Wife $2,500 in attorney’s fees based on her needs and changes in the parties’ circumstances.

Family Law: $7,500 Needs-Based And 217 Sanctions Awards To Ex-Husband Affirmed On Appeal

Lack Of Fee Hearing Reporters’ Transcripts Sealed The Correctness Of The Orders.

            The Third District, in Marriage of Samorano, Case Nos. C084143/C086540 (3d Dist. February 5, 2019) (unpublished), affirmed $7,500 in fees and sanctions awards in favor of ex-husband and against ex-wife under Family Code sections 2032 (needs-based provision) and 271 (sanctions provision). The main reason was that she did not provide any reporter transcripts of the fee hearings, so the orders were presumed correct. An inadequate appellate record sealed the deal.

Family Law: Needs-Based Analysis Similar To That Under Family Code Section 2032 Used To Review Denial Of Fees To Mother Under Family Code Section 7605

Section 7605 Deals With Proceedings Involving Child Custody/Visitation.

            In Darab N. v. Olivera, Case No. B282972 (2d Dist., Div. 1 February 4, 2019) (published), child’s mother appealed denial of her request for $100,000 in attorney’s fees under Family Code section 7605 relating to her efforts to defend against motions to quash brought by father (which were granted). Section 7605 is a fee shifting provision in child custody/visitation proceedings. The appellate court decided that much of the analysis of Family Code section 2032, the needs-based statute, applies to section 7605, with the lower court properly looking at the requesting party’s litigation tactics and whether claimed fees truly related to the appropriate proceedings. Section 6344 did allow fee shifting to a successful party in a DVRO proceeding, but mother lost in that phase. With respect to other fees, the lower court properly concluded that they were not reasonably incurred due to mother’s unreasonable litigation tactics and her failure to apportion them to potentially compensable work.

Family Law: Family Code Section 3111(b) Justified $50,000 Sanctions Against Attorney, But Not Client, For Disclosing Confidential Child Custody Evaluation Report

2/6 DCA Remembers That Attorneys Are Both Zealous Advocates And Officers Of The Court.

            Presiding Justice Gilbert, in Marriage of Anka & Yeager, Case No. B281760 (2d Dist., Div. 6 February 4, 2019) (published), reminds licensed attorneys that we are both zealous advocates and officers of the court. The appellate court affirmed a trial judge’s imposition of $50,000 in sanctions against an attorney for disclosing information in a confidential child custody evaluation report. Family Code section 3111(b) does allow the family law court authority to impose such sanctions for a violation of section 3025.5. However, because nothing showed that the client directed the disclosure, the joint and several award against client was reversed.

Family Law: Wife’s Request For Section 271 Sanctions In Her Responsive Declarations To A Dissolution Modification Request Was Not Affirmative Relief Under Family Code Section 213 Requiring A Separate 271 Motion

Also, Hearing The 271 Sanctions Request At The Same Time Saved Court Resources.

            The Second District, Division 2, in Perow v. Uzelac, Case No. B283457 (2d Dist., Div. 2 Jan. 31, 2019) (published), decided that a wife’s request for Family Code section 271 sanctions in her responsive declarations in a dissolution modification proceeding was not “affirmative relief” under Family Code section 213 requiring that the request be brought through a separate motion. As colorfully put by the panel, “A party seeking attorney fees under section 271 is not seeking affirmative relief within the meaning of section 213 because the request for such fees is an attack on the messenger, not his message.” Also, hearing the sanctions request with the modification request avoided duplicative proceedings and conserved judicial resources.

Family Law: Pont v. Pont Now Published

Appellate Court Recognized Spin-Off Litigation Under Stipulated Settlement With A Fees Clause Could Give Rise To Fee Recovery Even Though Dissolution Case Venued Elsewhere.

            In our December 22, 2018 post, we discussed Pont v. Pont, Case No. B284064, which was a 2/1 DCA decision which was unpublished at the time. The opinion upheld an attorney’s fees award to a husband who prevailed in Orange County spin-off litigation involving a stipulated dissolution settlement even though the dissolution case was venued in Los Angeles County. We can now report that the opinion was certified for publication on January 16, 2019.

Family Law: Ex-Husband Siphoning Off Equity In House Properly Assessed With Fiduciary Breach, 271, And Financial Disclosure Failure Sanctions

No Abuse of Discretion Shown, With Appellate Court Reminding Practitioners That Fiduciary Breach Fee Sanctions Are Mandatory In Nature.

            Ex-husband in Marriage of Tsatryan, Case Nos. B270784/B276299 (2d Dist., Div. 7 Jan. 14, 2019) (unpublished) was not happy with being hit with $65,000 in attorney’s fees sanctions under Family Code sections 1101(g) [for breach of fiduciary duty with regard to community assets], 271 [failure to promote settlement/hold down the costs of a dissolution case] and 2107(c) [failure to make required disclosures in declaration of financial disclosure]. However, the sanctions award was hardly an abuse of discretion when the record showed that ex-husband had siphoned off equity in the ex-couple’s house to the tune of $650,000 in encumbrances—making the sanctions award only 10% of the transfers (with section 1101(g) allowing a base award of 50% of any transferred asset). The appellate court also reminded everyone that the section 1101(g) award of fees for a spouse’s breach of fiduciary duty is mandatory. (In re Marriage of Fossum, 192 Cal.App.4^th 336, 348 (2011).)

Family Law: Wife Properly Awarded $87,500 In Needs-Based Fees And $46,000 In 271 Sanctions

Husband And Wife Had Litigated Themselves Into Financial Ruin, Trial Court Observed.

            In Thacher v. Thacher, Case No. B279985 (2d Dist., Div. 2 Jan. 3, 2019) (unpublished), the trial judge observed that husband and wife had litigated themselves into financial ruin in the dissolution case. After all, they had engaged in a 38-day trial on dueling domestic violence protective petitions, followed by a 6-day bench trial on dissolution issues and several hours on fees/sanctions requests. Wife had spent $1.2 million on the case, while husband had expended $603,000 (using three attorneys, including mother—who was a family law specialist representing him free at some later phases of the case). Eventually, husband was ordered to pay needs-based fees to wife in the sum of $87,500 and also ordered to pay $46,000 in 271 sanctions to wife. He appealed aspects of the prior dissolution order as well as the fees/sanctions orders.

            The 2/2 DCA affirmed. The prior dissolution judgment was independently appealable even though issues such as spousal support and fees had not been adjudicated; husband’s failure to appeal the dissolution judgment prevented any challenges to it. With respect to fees and sanctions, husband could show no abuse of discretion in the orders. He had three times the base annual salary as compared to wife’s salary, and he had money to pay the orders based upon his half of sales proceeds from a sale of the family house and funds leftover in trust accounts for his girls’ counsel. The record did show that 271 sanctionable conduct did take place, not to mention that wife was sanctioned for some conduct (with that amount offsetting to arrive at the net aggregate award).

Fee Clause Interpretation, Family Law: Husband’s Fees In Defeating Wife’s Orange County Action, Although Stipulated Judgment Entered In Los Angeles Family Law Court, Was Allowable Under Wording Of Stipulated Judgment Fees Clause

“Court Intervention” Language Not Limited To Just One Court, 2/1 DCA Concludes.

            In Pont v. Pont, Case No. B284064 (2d Dist., Div. 1 Dec. 20, 2018) (unpublished), ex-husband was awarded $90,000 in attorney’s fees and costs for defeating ex-wife’s claim that he siphoned off community assets in an Orange County action, after the parties had entered into a stipulated judgment with a fees clause in Los Angeles County family law court. The fees clause covered a prevailing party involved in a “court intervention . . . in connection [with the stipulated judgment].” Both the trial and appellate court had no difficulty concluding that husband’s Orange County victory qualified him as the prevailing party, not just limited to the Los Angeles County family law court producing the entry of the stipulated judgment. Husband obtained a dismissal at the demurrer stage, so that this certainly was a prevailing “win.” Finally, hourly rates ranging from $120-800 per hour for his attorneys was sustained as reasonable given this was a family law matter (although the lower court did note that the $800 mark was at the high range of fees for this type of matter).

Discovery, Family Law: Family Law Judges, On Discovery Matters Rather Than OSC Matters, Can Issue Sanctions Based On Declaration Testimony

No Oral Testimony Required Under The Circumstances.

            We found Marriage of Clarke and Akel, Case No. A151888 (1^st Dist., Div. 5 Dec. 11, 2018) (unpublished) to be an interesting case given that it involved an intersection between family law and civil discovery procedures.

            The essence of the matter was a discovery dispute between parties to a marital dissolution proceeding. Eventually, ex-wife was ordered to pay to ex-husband $15,000 on a discovery motion to compel under CCP §§ 2023.030(a), 2031.310(h). The principal challenge was that the family law judge erred in deciding the discovery dispute based on declarations, rather than admitting oral testimony.

            The appellate court affirmed. Nothing exempts family law cases from application of discovery principles, which routinely allow these disputes to be resolved through declaration testimony. This is contrasted with substantive order to show cause matters, which usually require oral testimony unless the parties stipulate otherwise. Beyond that, ex-wife did not object to the declarations such that any argument otherwise was waived.

Family Law: Third District Affirms Discretionary Family Law Fees And Spousal Support Awards Because No Reporter’s Transcript Provided

Trial Judge Is Presumed To Follow The Law In Lines With His/Her Official Duties.

            We have posted many times that it would be a good (if not mandatory) idea to have a reporter present for discretionary fee award proceedings. The Third District, in line with other sister court courts (especially the Second District, Division 5), recently followed authority that error on discretionary rulings cannot be presumed where a reporter’s transcript is not provided on fee and pendente lite spousal support rulings. We refer you to Marriage of Asefirad & Rakhshandeh, Case No. C085720 (3d Dist. Dec. 5, 2018) (unpublished) to show another affirmance based on the lack of a RT, because judges are presumed to follow the law and error must be affirmatively demonstrated. Without a RT, these presumptions could not be overcome.

Family Law: Family Law Judge’s Family Code Section 271 Sanctions Reversed And Remanded Based On “Double Dips,” Due Process Grounds, And Client Not Being Liable For Them

Opinion Demonstrates That Fees Must Be Specifically Targeted To Independent Conduct Not Previously Sanctioned And To Conduct For Which Due Process Concerns Are Honored.

            In Marriage of Bentley, Case No. H043593 (6^th Dist. Nov. 13, 2018) (unpublished), the family law judge imposed various Family Code section 271 sanctions against ex-wife. Some of them were reversed and remanded for determination. First up, a$10,000 sanctions award was too much because it included the amount of a prior discovery violation sanctions order (put another way, a “double dip”). Second, ex-wife could not be sanctioned for not showing up at an ex parte hearing because she had no notice she could be subject to sanctions. Third, she could not be sanctioned for failing to show up at scheduling conferences because she was not ordered to be present and she appeared through an attorney.

Family Law: $10,000 Sanctions Award Reversed Because Not Tethered Into Any Specific Fees Or Costs

Gotta Have Causation, Family Law Practitioners!

            Okay, we have posted before on sanctions awarded against litigants in a family law dissolution or related matter under Family Code section 271, which is aimed at dissuading conduct which is frivolous or not targeted at resolving the matter. The facts in Marriage of Karuppiah and Thurairajah, Case No. D071601 (4^th Dist., Div. 1 Oct. 31, 2018) (unpublished) are not important because a $10,000 section 271 sanctions award was vacated. The problem was that the winning litigant must “tether” the request to attorney’s fees and costs actually incurred—a causation principle. Because that was not done in this case, the $10,000 award was invalid.

Family Law: $75,000 Pendente Lite Attorney’s Fee Award To Ex-Wife Was No Abuse Of Discretion

There Was A Disparity In Assets/Cash Flow So As To Justify The Award.

            The appellate court in Marriage of Azmoon, Case No. B277654 (2d Dist., Div. 7 Oct. 23, 2018) (unpublished) affirmed a $75,000 pendente lite attorney’s fees award to ex-wife under Family Code sections 2030/2032/4320. It was made payable $5,000 per month and the record showed that wife’s monthly expenses outstripped her income, ex-husband had much more income and assets upon which to draw, and ex-wife was the primary caregiver for their daughter. Beyond that, ex-husband did not file an opposition such that there was no great basis for a continuance to allow for a future submission of opposing papers. The amount of the fee award was sustained because the court can use its own observations as to how much is needed given the conduct of the parties in the litigation.

Family Law: Denials Of Contempt Proceeding For Alleged Visitation Order Disobedience And Needs-Based Fees Request, Adverse To Ex-Husband, Were Proper

Trial Judge Denied Fees Request Without Prejudice, So It Could Be Renewed.

            In Jordan v. Binford, Case No. F075265 (5^th Dist. Oct. 5, 2018) (unpublished), ex-husband lost a contempt proceeding in which he alleged that ex-wife willfully disobeyed a custody and visitation order. Ex-husband also sought to recover attorney’s fees from his ex-wife. The lower court observed that usually a successful party in a contempt proceeding could obtain fee recovery (Code Civ. Proc., § 1218(a), but that situation was not present. However, the lower court asked ex-husband if he was seeking a needs-based award, to which he affirmatively responded.   But ex-wife objected because no income and expense declaration had been filed. The lower court denied the needs-based fees request without prejudice, indicating it could be refiled complete with an income and expense declaration. Ex-husband appealed.

            The Fifth District affirmed. The contempt order appeal had to be dismissed because the contempt ruling could only be reviewed by a writ of habeas corpus, given that the proceeding is quasi-criminal in nature. With respect to the fee order, there was no abuse of discretion because no financial evidence was presented so that the lower court could properly rule on the needs-based fees request and the lower court did not foreclose ex-husband from renewing the request with proper financial data. No costs were awarded on appeal, given that ex-wife did not even file a respondent’s brief.

Family Law: Family Law Commissioner Did Not Err In Denying Most Of Ex-Wife’s 2030/271 Fee Or Sanctions Request Based On DissoMaster Showing Equal Net Spendable Income And Both Sides’ “Grossly Over-Litigated” Stances

No Abuse Of Discretion Shown.

            In Marriage of Elgin and Yenyk, Case No. B285857 (2d Dist., Div. 1 Oct. 2, 2018) (unpublished), the family law commissioner—except for one missed appearance by ex-husband’s attorney—did not award anywhere close to the needs-based fees or Family Code section 271 sanctions to ex-wife as she requested. The commissioner used the DissoMaster to show that each party had roughly the same net spendable income and observed that the case had been “grossly over-litigated” with “fault in both directions.”

            Ex-wife’s challenges on appeal could not overcome the abuse of discretion standard, given she had the burden of proof on both the fee and sanctions grounds. The DissoMaster showing was good enough alone, but ex-wife’s “trial tactics” could not go ignored—even though both parties were at fault in over-litigating the matter.

Family Law: Family Code Section 2030(a) Requires Explicit Needs-Based Findings And A Mandatory Fee Recovery If The Findings Show Disparity In Financial Resources/Ability To Pay

Here, Appellate Court Determined Record Showed Financial Gulf Such That Fee Recovery Was Mandatory, Remanding To Determine Amount Of Fees To Be Awarded To Ex-Wife.

            In Marriage of Morton, Case Nos. F073689/F074243 (5^th Dist. Sept. 26, 2018; reposted for corrected version on Oct. 1, 2018) (partially published; fee discussion published), the Fifth District concluded that amendments to Family Code section 2030, the “needs-based” fee provision, require lower court to make explicit findings on the need factors set forth in section 2030(a)(2) and then require a mandatory fee recovery if those factors show a financial disparity or inability to pay by the moving dissolution litigant. The findings can be in writing or made orally on the record. In this instance, the findings were not made, so that left the remedy on appeal—either a remand to make the findings or remand to determine the amount of fees to be awarded to ex-wife. The Court of Appeal concluded that the record clearly showed disparity/lack of an ability to pay, so that the remand was made to determine the amount of fees to ex-wife plus any fees for winning the appeal as determined in the discretion of the lower court.

Family Law: Trial Judge Properly Denied Ex-Husband’s Request That Ex-Wife Pay $35,000 Of His Fees Under “Needs-Based” Family Code Section 2030

Neither Side Enjoyed A Substantial Financial Advantage Over The Other, Plus Ex-Husband’s Emails Showing He Intended To Make The Case “A Battle Of Attrition,” Justified Denial Of The Fee Request.

             Family Code section 2030 is a needs-based fee shifting provision which allows a family law judge to “level the playing field” by ordering one side to pay the other side’s attorney’s fees where the circumstances show a financial advantage by one side and other circumstances justify such a shifting of fees.

             Ex-husband, in Marriage of Papageorges, Case No. G054776 (4^th Dist., Div. 3 Sept. 24, 2018) (unpublished), brought a 2030 request for ex-wife to pay $35,000 out of $58,000 in attorney’s fees which he incurred. Ex-husband also criticized the work of one of his former divorce attorneys. Ex-wife had incurred about $25,000 in fees, with ex-husband sending some improvident emails indicating he was going to make the dissolution matter a “very long, long battle of attrition,” threatening to involve the media, and observing that he was going to “start the meter and spend her money.” The trial judge denied the fee request, finding that discrepancy on what was spent was inexplicable and that ex-husband had driven up the costs based on his “battle of attrition” mentality.

             The Fourth District, Division 3, in an opinion authored by Justice Goethals, affirmed. No abuse of discretion was shown in denying fees, given that (1) ex-husband provided no justification for the substantial difference in fees he incurred versus what his ex-wife incurred, (2) neither party enjoyed a substantial financial advantage over the other as far as assets and marital income, and (3) ex-husband’s emails showed that his own conduct had contributed to the fees for which he requested 2030 fee shifting. We definitely believe that ex-husband’s emails hurt his cause before both the lower and appellate courts, which signals to litigants that they need to be careful about what they say in emails—they can and will be used against you!

Family Law: Lower Court Erred In Failing To Award Needs-Based Fees To Ex-Wife After She Prevailed On Appeal

Family Law Judge Did Not Consider Husband’s Ability to Pay, And Wife Was Not Required To Make A Separate Request For Fees On Appeal When She Had Already Requested Them.

            Marriage of McCallon, Case No. G054567 (4^th Dist., Div. 3 Aug. 20, 2018) (unpublished) is an interesting case in which an ex-wife gets a remand opportunity to recoup fees for winning a previous appeal on other proceedings.  A number of procedural and substantive issues were decided in this one, so strap up for the “judicial ride.”

            What happened, boiled down, was this: wife prevailed on appeal from an order terminating spousal support, then seeking fees under a marital settlement agreement, Family Code section 271 (sanctions), and Family Code sections 2030/2032 (needs-based fees statute). The lower court denied fees on any of these bases, prompting an appeal. Wife did get relief in the form of a remand to determine fees under the needs-based fees statutes.

            Appealability was the first issue. The interim order being appealed from was not a final order such that it was not appealable. It also did not qualify as a collateral final order given that wife was not directed to pay any money to husband.

            The lower court did get it right as to no fee entitlement under the marital settlement agreement and section 271. With respect to the MSA, the language was not a prevailing party clause but simply reserved the right to apply for future fees under sections 271 or 2030/2032—this reservation language was not akin to a fees entitlement clause on a stand-alone basis. The section 271 sanctions request was correctly denied because ex-husband’s modification request was not frivolous and simply did not confer fee entitlement because it was reversed on appeal.

            That took the appellate court to the critical needs-based fees request, which took ex-wife to the promised land as far as a reversal was concerned. The main problem is that the lower court denied fees without recognizing that the appellate court’s earlier reversal was one for the entire post-judgment order inclusive of the decision on attorney’s fees. Ex-wife was entitled to fees on remand for successful appellate work. Ex-wife also did not have to request fees somehow again until an appeal was concluded to be entitled to them—after all, a litigant like wife does not have to be clairvoyant in predicting whether an appeal would be won. Finally, on the merits, the trial court failed to consider husband’s ability to pay versus just basing a fees denial based on wife’s ability to pay. So, both parties’ relative circumstances had to considered on remand as it related to all of the germane fee motions denied below.

            Acting Justice Fybel authored the 3-0 panel decision in favor of ex-wife.

Family Law: Section 271 Sanctions Award Of $50,000 Against Ex-Husband Reversed On Due Process Grounds

None Of Ex-Wife’s Papers Before A Critical Hearing Specifically Referenced Section 271, Requiring A Reversal Without Prejudice.

            This next case, Marriage of Bauer, Case No. H041338 (6^th Dist. Aug. 10, 2018) (unpublished), teaches an important due process lesson in family law cases: if you are going after fees as Family Code section 271 sections (not being cooperative or trying to resolve the case), make sure your papers or briefs cite the section specifically.

            What basically happened was that ex-wife failed to cite section 271 in her latter requests for order or trial briefs, despite doing it in prior hearings at which the requests were denied for the time being. Ex-husband raised the argument he did have notice or opportunity to be heard, with the appellate court agreeing and reversing the trial judge’s $50,000 sanctions award without prejudice. The reason was ex-wife’s failure to comply with Parker v. Harbert, 212 Cal.App.4^th 1172, 1178 (2012), which holds that due process requires that a notice for section 271 sanctions must specify the authority relied upon and must advise of the specific grounds/conduct on which sanctions are to be based.

Family Law: Bulk of Attorney’s Fees Rulings Contested By Ex-Wife Affirmed, Although One Award Denying Fees For Child Support Modification Was Reversed

Large-Scale Dissolution Battle Was Involved, With Appellate Court Giving Great Explanation Of Abuse Of Discretion Standard Of Review—Likely a “Smell Test” At Best.

            In Marriage of Vinhas and Krognes, Case No. A144387 (1^st Dist., Div. 2 Aug. 9, 2018) (unpublished), a family law judge largely decided marital standard of living issues in favor of ex-husband where his earnings plunged to a quite modest level after a few years of large earnings before separation. This case involved a non-consummated Swiss divorce agreement and ex-wife moving to Paris to live with her boyfriend, and the couple finally signing a divorce agreement in San Francisco, among other interesting and diverse facts. Ex-wife wanted $71,700 per month in support, but the family law judge awarded closer to $12,000 per month after factoring in other transfers or retentions of substantial assets. The family law judge denied most of ex-wife’s request for late-in-the game attorney’s fees requests, including denial of fees relating to child and spousal support requests.

            Ex-wife appealed, with ex-husband mainly winning but with a remand to revisit an award of fees for ex-wife’s successful child modification request. However, as we note in our BLOG OBSERVATION below, the opinion maybe has the most lucid, pragmatic definition of the appellate abuse of discretion standard—although some of our readers might think it too trite (even though we actually think it has some commonsense appeal).

            In denying fees, the family law judge did observe that ex-wife incurred $472,107 in attorney’s and forensic accounting fees (yikes!); husband took the laboring oar with respect to a realistic financial analysis; and wife drove up the fees based on how she litigated and in not being candid in her financial disclosures. So, the appellate court found that her requests for additional prejudgment fees and appellate fees were properly denied given that she had substantial access to funds (she had received $3.1 million in separate property) and that she had received over $8,500 in monthly child/spousal support for a period of time—not to mention her request for relief was astronomical in nature. However, it was error to not award her some fees for modifying child support under the Family Code section 3652 fee-shifting provision. But, to the contrary, the family law judge did not err in denying fees for modification of spousal support request given that ex-wife purchased an $1.8 million house such that her plea of “liquid asset poverty” did not resonate with the reviewing court.

            BLOG OBSERVATION—As we promised, here is what the appellate court had to say on the abuse of discretion standard, which we truncate (but with the full discussion being even more enlightening): “[O]ne commentator colorfully described a reversal for abuse of discretion as ‘the noise made by an appellate court while delivering a figurative blow to the trial judge’s solar plexus. It is a way of saying to the trial judge, “This one’s on you.” The term has no meaning or idea content that I have ever been able to discern. It is just a way of recording the delivery of a punch to the judicial midriff.’ (Rosenberg, Professor of Law, Columbia University, address to Federal Appellate Judges Seminar (May 13–16, 1975) Appellate Review of Trial Court Discretion.)”

Family Law: $2.5K Needs-Based Fee Award Of Req. $42K Was Abuse Of Discretion As Ex-Wife Did Attach Sufficient Fin. Info., Notice Not Given That Blanks In Jud. Council Forms Would Result In Denial, And Judge Excluded Her Ltd. Appearance Counsel’s Fees

Appellate Court Found These Combined Errors To Require A “Relook” At the RFO.

            Family law is certainly a specialty, where a lot gets done through a Request for Order (RFO) for support, provisional attorney’s fees, visitation, and other matters in a dissolution action. A lot of activity is governed by Judicial Council forms, with civil detailed legal memorandum not seen very much unless there is a complex issue or maybe in a trial brief in a complicated case. The next illustrates how a family law judge was reversed for not giving a little more leeway under the RFO process.

            In Marriage of Bazar & Shorr, Case No. B275808 (2d Dist., Div. 7 July 31, 2018) (unpublished), ex-wife sought need-based Family Code section 2032 attorney’s fees and costs to have a limited appearance attorney defend her (she was mainly acting in pro per in the dissolution action) in ex-husband’s motion to declare her a vexatious litigant. The family law judge, after several hearings on RFOs from ex-wife, only awarded her $2,500 in fees out of a requested $42,341 in fees and costs. The appellate court reversed after ex-wife appealed.

            It found several errors.

            First, the family law judge incorrectly refused to consider one RFO because ex-wife did not attach Judicial Council FL-158 (“Supporting Declaration For Attorney’s Fee and Costs”) and FL-157 (”Spousal or Partner Support Declaration Attachment”). In doing so, it distinguished how the process goes: “We acknowledge it is preferable from the court’s perspective to have all necessary information relating to the requesting party’s needs and the responding party’s ability to pay the other side’s attorney fees in the moving papers. But as Bazar’s counsel emphasized at the hearing on the first request for fees, the court’s reasoning creates a Catch-22 for a self- represented litigant in family court where, as here, that party must respond under a deadline to a request for order filed by his or her former spouse: The self-represented party cannot request an order for pendente lite attorney fees without first conducting discovery about his or her former spouse’s current financial situation; but without first filing a request for order for fees, discovery regarding the former spouse’s financial situation is not authorized. Moreover, without an order awarding fees, the self- represented litigant generally cannot afford an attorney to conduct discovery, to respond to the request that triggered the new proceedings or even to seek to continue the substantive matters until the fee issues, as well as any discovery disputes, have been resolved.” (Slip Op., pp. 13-14.) The reviewing court also noted that there was no prejudice to ex-husband, because was able to provide a meaningful response to the RFO.

            Second, the family law judge erroneously failed to consider ex-wife’s Income and Expense Declaration (FL-150) because she left certain items blank rather than putting zeroes in the form, which was in derogation of a Los Angeles County Superior Court Local Rule. The appellate court viewed the refusal to consider as tantamount to a terminating sanctions order, which was not justified given ex-wife’s substantial compliance and the fact that an OSC notice of not considering the Declaration due to these defects should have been given to her.

            Third, in light of the previous flaws, the family law judge erred in not considering the fees and costs that ex-wife paid to her limited appearance attorney when adjudicating her RFO.

            The $2,500 award was reversed for a remand “relook.”

Family Law: Court-Appointed Expert Award Against Ex-Husband Reversed Because No Hearing Held To Determine If Request Was Reasonable

Evidence Code Section 730 Makes Reasonableness A Requirement.

            In Marriage of Aresh, Case No. G054062 (4^th Dist., Div. 3 July 25, 2018) (unpublished), an ex-husband was saddled with a $179,561 award to a court-appointed forensic accountant in a dissolution matter. He appealed and was awarded by doing so. The problem was that Evidence Code section 730 determines that such an award must be reasonable in nature, and the lower court held no hearing to determine if that was the case. So, it was reversed and remanded for an evidentiary hearing. Justice Aronson authored the 3-0 opinion.

Family Law: In Fletcher Jones, Jr. Dissolution, $5.8M Fee Award Of Requested $9.5M To Ex-Wife For CA Litigation Not Abuse Of Discretion, But Remanded To See If Ex-Wife Entitled To More Than $375K For NV Litigation Where She Failed To Invalidate Agrmnts.

Remand Necessary In Nevada Litigation Because California Family Law Judge Improperly Took Judicial Notice Of Factual Finding By Nevada Court In Denying A Request For A Reimbursement Of Additional Fees.

       

        Admittedly, the Fletcher (Ted) Jones, Jr. dissolution case was going to be messy—after all, the couple lived a lavish lifestyle based on lucrative luxury car dealerships/ leasing businesses. The dissolution took on litigation in both California and Nevada, with California dealing with standard issues (status, parenting schedules, and child/spousal support) while Nevada dealt with the issue of whether the three prenuptial/postmarital agreements were valid/enforceable.

        The family law judge ordered Ted to pay Kimberly $375,000 in attorney’s fees so that she could do war in the Nevada litigation. After a 23-day trial in California, the family law judge ordered Ted to pay Kimberly $120,000 per month in child support for three children, $245,000 per month in spousal support, and $5.8 million in attorney’s fees (just for the California litigation). What he refused to do was order Ted to pay another $3.7 million in fees requested by Kimberly, which would have totaled about $9.5 million in fees altogether.

       Kimberly did not do well in Nevada. After a 31-day trial, she lost the attempts to invalidate the three agreements, with the Nevada court ordering her to reimburse Ted $4 million for his attorney’s fees and costs.

        Kimberly requested the California judge to award her more than the $375,000 in fees for Nevada work, but he refused after taking judicial notice of the Nevada judgment and factual findings associated therewith.

        Kimberly appealed, partially losing but gaining a shot again at the Nevada fee reimbursement request (although one wonders how successful this will be), in an unpublished opinion authored by Justice Moore in Marriage of Jones, Case No. G053394 (4^th Dist., Div. 3 July 18, 2018) (unpublished).

        The appellate court agreed that the $5.8 million California fee award was no abuse of discretion. It found that the California litigation involved standard issues and was over-litigated on Kimberly’s side.

        However, it did find that the trial court incorrectly determined that it was legally precluded from ordering Ted to reimburse Kimberly for fees related to the Nevada litigation, given an earlier appellate decision finding that “related” proceedings could allow a California judge discretion to award for work in them. (See our post of May 14, 2015 on the earlier decision.) The family law judge decided he had no fee adjudication powers with respect to the Nevada action, with exclusive jurisdiction being in that court such that the judgment there was binding under res judicata/collateral estoppel principles. The 4/3 DCA panel disagreed because the Nevada action involved the three agreements versus the more standard issues which were germane in California. However, the appellate court was uncertain that Kimberly was prejudiced, but gave her the benefit of the doubt given the California family judge took judicial notice of “toxic findings” in the Nevada judgment about her Nevada-based litigation behavior—which might have tainted things. So, the matter goes back for a remand on the Nevada fee issue.

        BLOG OBSERVATION—The California appellate court awarded Ted his costs on appeal. While we do not know the fees spent on this appeal (or the additional fees being expended in Nevada by the parties), we can tell you that the ex-couple at a minimum likely spent $10 million apiece, if not more, between the California and Nevada cases if our math is anywhere close to correct by the time this decision was issued.

 

      

Family Law: Section 271 Sanctions For Attempted Sale Of Property, Even Though No Attorney’s Fees Incurred, Had To Be Reversed

Sixth District Follows First District’s Lead As Far As Section 271 Sanctions Limitations.

            In Marriage of Henley & Jackson, Case No. H043753 (6^th Dist. June 29, 2018) (unpublished), a family law judge imposed Family Code section 271 sanctions of $25,000 against husband for his efforts to sell a community asset without notice to wife, even though she incurred no attorney’s fees and costs in the process. That, among other issues, were reversed and remanded on appeal, by husband. The Sixth District adopted the reasoning of the First District in Sagonowsky v. Kekoa, 6 Cal.App.5^th 1142, 1144, 1157 (2016), which held that misconduct over beyond fees/costs actually incurred was not within the reach of section 271.

Family Code: $114,522.50 In Section 270 Sanctions Against Husband In Contentious Dissolution Affirmed On Appeal

Attorneys Did Seek Sanctions On Behalf Of Wife And Failure To Include Income/Expense Declaration On Appeal Failed To Support Husband’s Financial Burden Argument.

            In Marriage of Sokol & Avidor, Case No. B280783 (2d Dist., Div. 5 June 20, 2018) (unpublished), husband was ordered to pay a total of $114,522.50 in Family Code section 270 based on failing to cooperate and driving up expenses during the course of a dissolution proceeding. Of that, $14,552.50 was awarded to one of wife’s former attorneys, and $100,000 went to wife’s then-current attorney based on five instances of sanctionable conduct. (By the way, husband did not have to pay needs-based fees to wife.)

            The 2/5 DCA affirmed the sanctions awards.

            Husband argued that the family law judge erred by ordering him to pay wife’s attorneys directly, in contravention of Webb v. Webb, 12 Cal.App.5^th 876, 883 (2017) [which held that section 270 “contemplates that only a party may move for an award of sanctions”]. The reviewing court found Webb distinguishable because the record indicated that the sanctions were imposed for wife’s benefit, not just the attorneys’ benefit such that they would be credited to her fee obligations. With respect to the argument that the awards were financially crushing for husband, he failed to include a filed copy of an income/expense declaration with the appellate record (despite being submitted before the lower court), such that the appellate court presumed that the declaration supported the court’s conclusion that sanctions would not impose an unreasonable financial burden.  

Discovery, Family Law, Sanctions: $5,500 Discovery Sanctions Award Against Ex-Client Attorney Reversed Where Attorney Not Given Notice She Was A “Sanctions Target”

Due Process Violation Was Reason For Reversal.

             In Marriage of Mehta & Grover, Case No. A146919 (1^st Dist., Div. 4 June 19, 2018) (unpublished), a $5,500 discovery sanction against an ex-attorney for wife was reversed on due process grounds. What happened was that before the discovery sanctions motion was decided, attorney was relieved as wife’s attorney, with nothing in the papers indicating she was the target of a discovery sanctions request (with only her client wife indicated as a target). The subsequent $5,500 sanctions order against ex-attorney was reversed on due process grounds, given the attorney had no notice that she was personally the subject of the sanctions request. Here is what the appellate court had to say on a broader basis with respect to sanctions request in moving or opposing papers: “To interpret [Code of Civil Procedure] section 2023.040 as imposing a notice obligation only on those who elect to include a sanctions motion in moving papers (i.e., in a discovery motion or in a separate sanctions motion), and not on those who include a sanctions motion in opposition papers, would defeat the obvious purpose of the statute and would lead to absurd consequences.” (Slip Op., p. 9.)