CALIFORNIA ATTORNEY'S FEES

Family Law: Ex-Wife’s Needs Based Support Fee Request Properly Denied

She Had More Assets/Wealth After Dissolutions Rulings And Future Payments By Husband Which Meant She Should Pay Her Attorneys When She Recoups!

            Ex-wife was probably not happy that her Family Code sections 2030/2032 “needs based” attorney’s fees request was denied again in Marriage of Restaino, Case No. G054778 (4^th Dist., Div. 3 Nov. 14, 2019) (unpublished).  However, her appeal of this fee denial did not change the result.

            The 4/3 DCA, in an opinion authored by Justice Ikola, found there was no abuse of discretion based on family law judge’s findings that (1) ex-wife had more assets/wealth than ex-husband after rulings in the dissolution matter, and (2) both ex-spouses had the ability to pay their own attorneys.  Ex-wife argued that the needs-based award was warranted because ex-husband owed her $650,000; however, the appellate court found this did not resonate because ex-wife could simply pay her attorneys once she collected from ex-husband—no foul here!

            BLOG OBSERVATION—A footnote in the opinion may be even more telling.  Wife spent $1.2 million in the divorce, and husband spent $900,000, with the family law judge observing that much of this occurred because ex-wife over-litigated the case. 

Family Law: $10,000 2030 Award To Ex-Wife With A Big Disparity In Income/Assets Affirmed On Appeal As Against Ex-Husband

Appellate Court Implored That Appealing Ex-Husband Get Beyond Past Dissolution Disputes.

            Marriage of Dodson, Case No. E070719 (4^th Dist., Div. 2 Nov. 12, 2019) (unpublished) is an interesting acrimonious dissolution case where husband and wife went back and forth in a marriage where only a finite of assets/income were at issue.  (Sound familiar?)

            In the end, the trial court awarded ex-wife $10,000 in “needs-based” fees against ex-husband, rebuffing multiple requests for Family Code section 271 sanctions by both sides.  Ex-husband appealed this award, even though he moved on and has an apparent new finance.   This was no abuse of discretion in light of the record showing that husband had over 4 times earning taxable income over wife’s disability income. 

            Here is the telling ending observation by the Court of Appeal:  “We are hopeful that [ex-husband/appellant] will find a way to move past this very difficult and stressful period in his life and find a happier and brighter future for himself, his fiancé, and his adult children.” 

Family Law: Singer/Actor Tyrese Gibson Achieves $47,485 Reduction To Needs-Based Attorneys Fees Awarded To Ex-Wife Based On Trial Court’s Calculation Error

Significant Disparity Between The Parties' Income And Assets Mandated The Fee Award.

            In In re Marriage of Gibson, Case No. B294875 (2d Dist., Div. 1 November 1, 2019) (unpublished), ex-wife sought $170,890 in Family Code §§ 2030 and 2032 needs-based attorneys fees when ex-husband, singer/actor Tyrese Gibson, moved for a move-away order to allow him to move their daughter to his home in Atlanta, Georgia.  The trial court, looking to avoid a lot of back-and-forth on the fees issue throughout the duration of the litigation, requested a declaration from ex-wife’s attorney itemizing the specific anticipated legal work to be conducted through trial on the move-away petition.   

            After a 51-hour reduction for unnecessary/ unreasonable time and for time to be spent on work irrelevant to the move-away petition, the trial court ordered Mr. Gibson to pay $147,140 in ex-wife’s attorneys’ fees through a schedule of installment payments set forth in the order.  The trial court further ordered that – should Mr. Gibson’s move-away petition be successful, and he subsequently seek an order modifying child support – he pay an additional $14,725 in needs-based attorneys’ fees.

            Mr. Gibson moved for a new trial regarding the fee award, but his request was denied as an improper remedy as no “trial” had been held – with a motion for reconsideration being the appropriate vehicle.  Additionally, the trial court issued an order conditioning its further consideration of Mr. Gibson’s move-away petition on compliance with the attorney fee award.

            Mr. Gibson appealed – claiming the trial court: (1) failed to consider his monthly expenses and obligations, including his own attorney fees; (2) had improperly viewed his real property assets as a source of funds; (3) had abused its discretion in awarding fees because of wife’s ability to pay some of her own legal expenses; (4) abused its discretion by requiring him to pay additional fees if he succeeded on his move-away petition and sought a child support modification; (5) ordered fees in an amount greater than what it deemed reasonably necessary; and (6) that the installment schedule set forth in the order was not manageable.

            The 2/1 DCA rejected Mr. Gibson’s arguments and affirmed, with one exception – that the attorney fees award be reduced to $99,655 due to a calculation error made by the trial court, and that a new installment schedule be entered in line with the reduced amount.

            There was no abuse in discretion in awarding attorneys’ fees to ex-wife under sections 2030 and 2032.  Significant income disparity brought section 2030 into play – which allows an award of attorneys fees even if the party receiving the award has some ability to pay – in order to assure parity in the parties’ legal representation.

            The 2/1 DCA found that unlike the trial courts in In re Marriage of Keech (1999) 75 Cal.App.4^th 860 and Alan S. v. Superior Court (2009) 172 Cal.App.4^th 238, the trial court here had not failed to consider Mr. Gibson’s expenses and other obligations, and ability to afford his own attorney.  It further agreed with the trial court – that even if Mr. Gibson had a monthly shortfall in meeting the scheduled payments, he has the ability to obtain funds through the approximate $1.8 million equity in his homes, his $100,000 bank account, and the ability to adjust his discretionary expenses.  Following the reasoning in Alan S. v. Superior Court (2009) 172 Cal.App.4^th 238, 255, the 2/1 DCA found the trial court appropriately considered the equity in Mr. Gibson’s real property assets in determining his ability to pay.

            Finally, there was no error and no abuse of discretion as to the trial court’s contingent fee order tied to, and derived from, the success of Mr. Gibson’s move-away petition. If Mr. Gibson’s move-away petition were unsuccessful and he, therefore, did not seek a modification in child support as a result thereof, the contingent fee order would not come into play.  Fee awards under section 2030 necessitate that courts make educated estimates on work yet to be performed, and provides them the discretion to do so.   The trial court had reduced from ex-wife’s attorneys’ fees request the amount anticipated to conduct financial discovery.  Financial discovery would, however, become necessary if Mr. Gibson moved for a modification of child support as a result of the move-away outcome.  Having the fee information for the financial discovery already before it, the trial court simply shifted the burden, with respect to fees, to Mr. Gibson.  It would be up to him to request a revision to that fee award before filing a modification request.

Family Law: $48,000 Needs-Based Attorney’s Fee Award Affirmed Against Husband Asserting No Monthly Income

Bank Records Showed Husband Had Monthly Non-Taxable Income of $62,896.86

            In Marriage of Gu and Gao, Case Nos. B290406 and B292480 (2d Dist., Div. 1 October 28, 2019) (unpublished), couple met in Hong Kong and began living together in 2015, coming to the United States in 2016 when husband sought political asylum.  They settled in California in April 2016, had twin daughters a month later, then married in December 2016.  Four months later, husband filed for divorce.  He was arrested the same day on suspicion of domestic violence. 

            During their time together, the couple had enjoyed an “extremely extravagant and affluent lifestyle” paid for entirely by husband.  Wife did not work and had few assets.

            When wife requested temporary spousal support, child support, and a needs-based attorney’s fees award, husband claimed he had no income.  He provided a 5-month period of bank statements showing deposits that averaged only $773.12 per month.  However, evidence provided by wife showed husband owned numerous businesses, had recently sold $4.1 million in stock, and had deposited a total of $754,762.32 into the couple’s joint checking account in the year preceding his dissolution petition.  After reviewing the evidence and hearing testimony from husband and wife, the trial court found that husband had complete and total access to money up until he petitioned for dissolution.  Husband was ordered to pay monthly temporary support of $13,356 in child support and $8,000 in spousal support, and $48,000 in needs-based attorney’s fees.  Husband appealed.

            Husband argued that the trial court should have calculated support based on the 5-month period of bank statements showing deposits of only $773.12 per month.  The 2/1 DCA disagreed – citing In re Marriage of Riddle (2005) 125 Cal.App.4^th 1075, 1083 [“It is a manifest abuse of discretion to take so small a sliver of time to figure income [for support orders] that the determination essentially becomes arbitrary”] – and found no abuse of discretion in the trial court’s orders.

Family Law: Famiy Law Judges Are Allowed To Reduce Or Limit A Family Law Attorney’s Real Property Lien Even After The Lien Is Recorded

FLARPLs Are Conditional, With Family Code Section 2034(c) Giving The Lower Court Discretion To Resolve Disputes Over The Propriety Of FLARPs, Including Revisiting The Propriety Of Such Liens At A Later Time.

            Acting Presiding Justice Yegan opened the published opinion in Marriage of Bittenson, Case No. B288233 (2d Dist., Div. 6 Oct. 22, 2019) (published) with this observation:  “Family law practitioners should read this opinion with the following in mind:  ‘[F]amily law court is a court of equity ….”  (E.g., In re Marriage of Boswell (2014) 225 Cal.App.4^th 1172, 1174.)  Appellate attack upon a discretionary trial court ruling is an ‘uphill battle.’  (Estate of Gilkison (1998) 65 Cal.App.4^th 1143, 1448.)”

            With that, the 2/6 DCA panel proceeded to affirm a lower court’s revisiting of a Family Law Attorney’s Real Property Lien (FLARPL), which allows either party in a dissolution action to encumber his or her interest in community real property to pay reasonable attorney’s fees for purposes of retaining/maintaining legal counsel in a dissolution proceeding.  In the particular case before it, husband’s trial attorney recorded three FLARPLs totaling $250,000 as security for the payment of his on-going attorney’s fees.  Wife belatedly filed objections to the FLARPLs, but the objections were moot because they were not made before recordation of the liens.  However, subsequently, the trial court reduced the liens under Family Code section 2034 to protect wife’s community interest in escrow proceeds from the sale of the family residence, ordering husband’s trial attorney to deposit $100,000 of the funds into a blocked account and releasing the remaining $150,000 to the attorney in satisfaction of the FLARPLs.

            The lower court’s discretionary order was affirmed.  Section 2034(c) makes clear that the lien is conditional such that a family law judge can revisit the propriety of a FLARPL at any time and can even expunge or limit the lien.  Obviously, the lower court wanted to protect wife’s interest in escrow proceeds, such that equity was served, and no discretion was abused given the wide berth allowable under section 2034(c). 

            BLOG COMMENT—Interestingly enough, Justice Yegan’s citation to Gilkison (which he authored) is nice, because that opinion colorfully painted the “uphill battle” this way:

"An attorney who prosecutes an appeal from an order addressed to the trial court’s sound discretion is confronted with more than a daunting task.  This is an uphill battle which, absent unusual circumstances, may be equated with confederate General John Bell Hood’s attempt to capture ‘Little Round Top’ at the battle of Gettysburg in the Civil War.   General Hood did not succeed."

Family Law: Family Court’s Failure To Make Mandatory Findings Required Under Family Code Sections 2030 and 2032 Was Abuse Of Discretion

Family Court Did Not Award Fees Due To Wife’s Pro Per Status At The Time It Rendered Its Decision.

            In Marriage of Soares, Case No. F076532 (5^th Dist., Sept. 26, 2019) (unpublished), Wife challenged family court’s denial of her needs-based fees request, its spousal support determination, and the judge’s failure to recuse himself for conflict of interest.

            Although Wife gained no traction on the spousal support and disqualification issues, she achieved a remand on the attorneys’ fees issue.

            Throughout the course of this action, Wife was represented by three different attorneys before proceeding in pro per.  Her request for attorneys’ fees was filed during representation from her first attorney, but Wife was representing herself at the time the court rejected her request based on her self-representation.

            Citing In re Marriage of Cheriton (2001) 92 Cal.App.4^th 269 and In re Marriage of Tharp (2010) 188 Cal.App.4^th 1295, the 5^th District found the family court’s failure to make a mandatory determination pursuant to Fam. Code §§ 2030 and 2032 to be an abuse of discretion.  Wife’s eventual self-representation was of no consequence.  She had received legal services and had made a request for fees which may be awarded under Fam. Code § 2030 (b) “for legal services rendered or costs incurred before or after the commencement of the proceeding.”

Family Law: Family Law Judge’s Failure To Allow Argument Over, Much Less Address, Needs-Based Fee Request, After Agreeing To Bifurcate Same For Determination, Reversed On Due Process Grounds

Surprise, Last-Minute Reversal In Tentative Decision Required A Reversal.

            Due process required a reversal of a family law judge’s decision denying a needs-based fee request by ex-wife in Marriage of Bramhall and Melvoin, Case No. B288129 (2d Dist., Div. 7 Sept. 23, 2019) (unpublished).  The parties stipulated to bifurcation of a needs-based fees request, with the trial judge remarking that this would be considered later, only to not address the issue in a tentative decision that became the final statement of decision.  The 2/7 DCA reversed because the trial judge had agreed to bifurcate and consider the issues, with a Reporter’s Transcript confirming the trial judge’s intentions which were not followed in a “surprise” last-minute order.  Here is our favorite due process case citation in the opinion: Monarch Healthcare v. Superior Court, 78 Cal.App.4th 1282, 1286 (2000) [“fundamental principles of due process . . . call for those with an interest in the matter to have notice and the opportunity to be heard, so that the ensuing order does not issue like a ‘bolt from the blue out of the trial judge’s chambers’”].

Family Law: $10,000 Needs-Based Fee Award To Wife Reversed Because Family Court Failed To Make Mandatory Findings Required Under Family Code Sections 2030/2032

Fifth District’s Morton Decision Found Persuasive To The 4/1 DCA.

            The Fourth District, Division 1 in Marriage of Bustillo, Case No. D075369 (4^th Dist., Div. 1 Sept. 12, 2019) (unpublished) reversed a $10,000 “needs-based” fee award to ex-wife under Family Code section 2030 and 2032 for a multiday support hearing.  The reason was that the family law judge failed to make mandatory findings for needs-based awards as detailed in In re Marriage of Morton, 27 Cal.App.5^th 1025, 1049-1054 (2018), a Fifth District decision which the 4/1 DCA found to be well-reasoned and persuasive.  Morton is must reading for family law practitioners, in our view, when asking for pendente lite fee awards of this nature.

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.