CALIFORNIA ATTORNEY'S FEES

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

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

            Marriage of Fader, Case No. B296972 (2d Dist., Div. 5 Sept. 24, 2020) (unpublished) is a situation teaching that a litigant should make a motion to amend deficient pleadings in order to preserve an attorney’s fee request.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

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

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

Specific Appealability Provisions Governed The Result.

            In Marriage of Rattan & Prasad, Case No. A157880 (1^st Dist., Div. 3 Sept. 24, 2020) (unpublished), ex-husband’s attorney was disqualified and was assessed with a CCP §§ 128.5/128.7 sanctions motion of $5,000 for filing frivolous motions.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

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

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

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  Marriage of Nott, Case No. B293055 (2d Dist., Div. 5 Sept. 16, 2020) (unpublished), is a good illustration of what will result in a reversal when due process requirements are not satisfied.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Result Is Close To A “Wash.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Family Law: Family Code §§ 1101(g) And 271 Sanctions Order Against Father Affirmed On Appeal

Purpose Of These Sanctions Is To Spur Candidness Between Parties To Dissolution Action.

            In Marriage of Gutierrez, Case No. B291507 (2d Dist., Div. 8 May 6, 2020) (published), among other things, father was sanctioned under Family Code §§ 1101(g) [fee sanctions against spouse violating fiduciary duty of disclosing assets] and 271 [sanctions for prolonging litigation/not promoting settlement] when he failed to make proper disclosures about a different house.  Father appealed to no avail, misunderstanding the nature of these statutory provisions.  They are not designed to punish past wrongs, but instead were enacted to spur good conduct in terms of both sides being candid with each and the court.  Here was the takeaway by the deciding panel: “Couples dissolving their bonds thus must grasp the importance of candor. They, and their attorneys, must understand concealment will be costly and counterproductive.”  (Original emphasis.)

Family Law: Needs-Based Award Of $24,000 To Ex-Wife Affirmed On Appeal

Record Below Did Not Show The Trial Judge Imposed It In Retribution Against Ex-Husband.

            In Marriage of Ward, Case No. A156599 (1^st Dist., Div. 5 Apr. 29, 2020) (unpublished), ex-husband appealed a $24,000 needs-based fee award under Family Code sections 2020/2032.  His only challenge on appeal was that the lower court imposed this award in “retribution” for him raising certain spousal support issues (issues which, by the way, had to be considered when making the needs-based award).  The appellate court affirmed, and for a simple reason:  the statement of decision did not bear out at all that the award was done for retribution. 

Family Law: No Abuse Of Discretion Where Trial Court Awarded Husband Only $15,000 In Needs-Based Attorney Fees Out Of Requested $49,000

Husband Failed To Meet His Burden In Showing Abuse Of Discretion Where Trial Court Considered All Evidence Presented, Husband Had Significant Financial Resources, And Wife’s Needs-Based Fee Payments To Husband Accounted For 45% Of His Total Fees.

            In Marriage of Burns, Case No. H046858 (6^th Dist., April 17, 2020) (unpublished), a husband with significantly less monthly income than wife requested a post-judgment award of needs-based attorney fees under Family Code sections 2030 and 2032.  Although the husband requested $49,000.00, the trial court awarded him only $15,000.00.  Husband appealed – citing abuse of discretion and failure to issue a statement of decision.

            The Sixth District was not persuaded and affirmed.  The trial court has broad discretion in determining how to apportion fees equitably between the parties.  Although the trial court did not issue a statement of decision to explain how it arrived at the $15,000.00 award as an appropriate apportionment, it was not required to do so.  (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4^th 44, 67.)  Also, the trial court did not summarily reject any of the arguments or evidence provided by the parties – telling them it was “going to need time” to consider the request, then taking more than a month to issue its ruling – showing the trial court did exercise its discretion and consider the relevant statutory factors in reaching its decision. (Alan S. v. Superior Court (2009) 172 Cal.App.4^th 238,254.)

            Additionally, the record reflected sufficient evidence, that the trial court was entitled to consider, which showed that husband was awarded an amount that was reasonably necessary, and just and reasonable under the relative circumstances of the respective parties.  (Alan S. v. Superior Court (2009) 172 Cal.App.4^th 238,253.)  Although husband’s monthly income was significantly less than wife’s, he had significant financial resources, plus his monthly income (including spousal support) exceeded his monthly expenses by about $4,200.  Wife had substantial income and assets, but also had a negative monthly cash flow of almost $2,000 in the month  following husband’s fee request.    The trial court also could have taken consideration of the fact that wife had already paid $40,000 in needs-based attorney fees to husband – totaling approximately 45% of husband’s total fees when combined with the $15,000 – and another $10,000 toward husband’s expert costs.

Family Law: Section 271 Sanctions Requests Are Not Subject To Different Civil Deadlines

Rather, Laches Govern Whether the Section 271 Sanctions Motions Were Timely.

            George v. Shams-Shirazi, Case No. A155158 (1^st Dist., Div. 1 Feb. 11, 2020) (published) dealt with a $13,000 “sanctions” award against a litigant under Family Code section 271, which allows a family law judge great latitude to award attorney’s fees and costs against a litigant who does not attempt to move the family law case to a resolution or files needless motions.

            Well, the losing party lobbed procedural argument to reverse the award.  The basic argument was that the section 271 sanctions motion was filed too late, because it was “lock stepped” into civil court deadlines for filing fees motion.  Wrong.  The problem was that this was a family court case and one involving postjudgment sanctions fees which triggered a different deadline in family law cases.

            So, what is the rule?  Laches, said the appellate court.  “ . . . postjudgment requests for statutory attorney fees can be denied under the equitable principles of laches if the delay in filing unfairly prejudices the other party,” citing Crespin v. Shewry, 125 Cal.App.4^th 259, 271-272 (2004).  Under the circumstances of this case, laches did not apply such that the sanctions award was affirmed based the particular circumstances of this case.  It will be interesting to see if legal practitioners try to stretch this case beyond its narrow facts.  Who knows!

Family Law: No Abuse Of Discretion In $200,000 Section 271 Sanctions Award Against Wife Even If Amount Includes Future Fees And Costs To Be Incurred As A Result Of Wife’s Conduct

The 4^th District Ordered A Remand, However, To Allow The Lower Court To Review The Award To Ensure It Is Limited Only To Attorneys’ Fees And Costs, And To Prepare An Order That Includes Information Regarding The Basis For The Sanctions Amount

            Family Code § 271 authorizes a court to impose attorney’s fees and costs as a sanction to encourage cooperation between the parties and attorneys where a party’s/attorney’s behavior is such that it unnecessarily increases the cost of the litigation or frustrates settlement of the case.  These sanctions are limited only to attorney’s fees and costs – whether already incurred or to be incurred in the future.

            Such sanctions, including future fees/costs, were issued in Menezes v. McDaniel, Case No. D074434 (4^th Dist., Div. 1 December 18, 2019) (unpublished), certified for publication on January 15, 2020, where Wife had failed – for years – to comply with the lower court’s order to transfer title of a property in Brazil to Husband.

            On appeal, the 4/1 DCA found no abuse in discretion with the lower court’s finding that Section 271 sanctions were warranted – nor with its decision to award both past and future fees/costs, connected with Wife’s failure to comply, as sanctions.  However, the 4/1 DCA was unable to determine from the lower court’s order whether the $200,000 improperly included Husband’s travel costs to and from Brazil and/or calculations for  vacation time Husband was forced to take to travel to Brazil to deal with the property transfer issue.  For that reason alone, remand was necessary to allow the lower court to review the award amount and to prepare an order clearly delineating the basis for the sanctions amount.

Family Law: Ex-Husband’s Challenge To Denial Of $150,000 In Need-Based Fees Affirmed On Appeal

Both Sides Spent A Ton; Both Sides Had Income to Fight; Both Sides Got What They Got After Seven Years Of Litigation.

            Needs-based fees under Family Code sections 2030 and 2032 have to be based on a consideration of the total circumstances.  Some litigants ignore this basic reality, but Ettenger v. Ettenger, Case No. H044184 (6^th Dist. Jan. 13, 2010) (unpublished) reminds us that this is the reality in most situations.

            In this one, ex-husband spent $340,000 in the dissolution action (owing another $17,000), while ex-wife spent $400,000 (and owed another $18,000).  Yikes!  Ex-wife had the better cash-flow income, with ex-husband seeking another $150,000 in needs-based fees, a request denied by the lower court.

            That determination was affirmed by the Sixth District.  It sustained the lower court’s conclusions that (1) neither side lacked access to funds based on distributions made earlier in the case, (2) ex-wife did not unilaterally drive up the costs of litigation; and (3) both parties had contributed to the cost of the litigation.  The appellate court found nothing wrong in the denial of fees to ex-husband, independently finding that ex-husband had plenty of liquid of funds to engage counsel to fight in the dissolution—something he did, maybe not something which was prudent in the long run.  Finally, the lower court was not obligated to issue a statement of decision in ruling on a needs-based fee request or a Family Code section 271 sanctions request.  (In re Marriage of Fong, 193 Cal.App.4^th 278, 296 (2011) [section 271]); In re Marriage of Askmo, 85 Cal.App.4^th 1032, 1040 (2000) [pendente lite attorney’s fees].) 

Family Law: Preemptive Sanction Against Future Conduct Not Allowable Because It Impedes The Ability Of Litigation To Defend Litigant’s Interests And Gives No Opportunity To Withdraw The Offensive Conduct

Preemptive Sanction Order Reversed, Although Court Of Appeal Was Sympathetic To What Family Law Judge Was Attempting To Do.

           In the acrimonious dissolution case of Marriage of Richards, Case No. G056626 (4^th Dist., Div. 3 Jan. 9, 2020) (unpublished), ex-wife continually interrupted the family law judge and filed 11 matters in one month, prompting the lower court to issue an OSC re sanctions which ultimately indicated that ex-husband would be awarded sanctions for having to oppose any future motions.  The 4/3 DCA, in an opinion authored by Presiding Justice O’Leary, reversed.  CCP §§ 128.5 and 128.7 only deal with an existing action, tactic, or filing, such that the lower court’s order did not properly allow ex-wife an opportunity to withdraw an offensive motion.  Besides that, fundamental rights were involved:  “We conclude a preemptive award unfairly impedes the ability of a litigant to raise a defense or take appropriate legal action in the case,” which was illustrated by the fact that not all of ex-wife’s motions had been frivolous in the past.

Family Law: $15,000 “Needs-Based” Award To Ex-Husband, Where Ex-Wife’s Parents Had Funded $290,000 In Her Child Custody Battle Fees, Was Appropriate Under Family Code Section 2030

Not Improper To Factor In Ex-Wife’s Parents’ Significant Funding Of Litigation.

            In Marriage of Janssens, Case No. C085986 (3d Dist. Dec. 26, 2019) (unpublished), ex-wife and ex-husband were engaged in a contentious dissolution battle over child custody issues relating to their son.  Earlier, a family law judge had ordered ex-wife to pay ex-husband $15,000 in “needs based” fees because ex-wife’s parents had funded about $194,000 in her fees up to that point.  Later, ex-husband requested another $100,000 in “needs based” fees, given that ex-wife’s parents had now funded about $290,000 in the custody battles.  The trial judge ordered that an additional $15,000 in attorney’s fees be paid to ex-husband, even though ex-wife had yet to pay him the prior award.  The Third District had no problem affirming this award, even though ex-husband did not file a respondent’s brief (probably because he could not afford it).  The moneys loaned by ex-wife’s parents certainly could be considered in the equation, such that the lower court award was not even close to an abuse of discretion under the circumstances.

Family Law: No Abuse Of Discretion In Trial Court’s Denial Of Need-Based Attorney Fees To Husband With Significantly Less Income Than Wife

Husband Devoted The Majority Of His Time To A Failing Cycling Apparel Business, And Although Wife Had More Income From Sources Designed For The Care Of The Couple’s Disabled Child, She Also Had More Expenses Than Husband.

            Husband in Marriage of Castia, Case No. A155088 (1^st Dist., Div. 1 December 2, 2019) (unpublished) appealed lower court’s orders terminating his spousal support and denying his request for need-based attorney fees and costs.  It was all for not.  The 1/1 DCA found no abuse of discretion in the lower court’s decisions.  Husband had not acted in good faith in trying to become self-sufficient.  Instead, he focused on his failing cycling apparel business.  Although Wife’s income was roughly 10 times that of her Husband, she was not in a superior financial position.  Her income was derived from sources established for the care of the couple’s disabled son, she was a full-time caregiver to their son, and her debt and expenses were significantly greater than Husband’s expenses.  The 1/1 DCA found the lower court had properly evaluated every single one of the more than a dozen factors under Family Code section 4320 in its order for spousal support, and had properly found financial parity between the parties existed – especially considering that the lower court had equally divided the parties’ marital assets – in its denial of attorney fees and costs.

Family Law: Denial Of Fourth Request For “Needs-Based” Appellate Fees By Ex-Wife Reversed

Res Judicata Ground For Denial Was Not Borne Out Because Earlier Three Denials Were Without Prejudice.

            Marriage of Uriostegui and Maffei, Case No. B289948 (2d Dist., Div. 7 Dec. 23, 2019) (unpublished) demonstrates that sometimes the fourth time is the charm.

            What happened in this dissolution case is that a family law commissioner, on three prior occasions, denied ex-wife’s “needs-based” request for attorney’s fees primarily to prosecute an ultimately successful appeal based on deficient financial information.  In response to a fourth request for fees, a different judge interpreted the commissioner’s third ruling as being with prejudice such that res judicata required a denial of the fourth request.

            The 2/7 DCA reversed.  Res judicata did not apply because the commissioner never indicated that the earlier denials were with prejudice, such that the request could be renewed.  Also, res judicata usually does not apply to earlier rulings in an action, unless they were appealable orders and never appealed from—not the situation in this matter.

Family Law: $5,000 In Needs-Based Appellate Fees To Ex-Wife Was Not A Reasonable Award

Trial Judge Failed To Focus On What Husband Had Spent As Well As Failed To Appreciate Ex-Wife Was Both A Respondent And Cross-Appellant.

            The 4/1 DCA in Marriage of Fiore & Jimenez, Case No. D074927 (4^th Dist., Div. 1 Dec. 20, 2019) (unpublished) reversed a $5,000 Family Code section 2020 “needs based” fees award to ex-wife for necessary attorney appellate services, although she had asked for $65,559.  The appellate court concluded that $5,000 was too low of an award given the financial disparity between ex-wife and ex-husband, failing to factor in that (1) husband himself had spent $30,000 on his appeal, and (2) ex-wife was not only a respondent but also a cross-appellant in dissolution appellate proceedings.  The fact that she went in pro per at some point on appeal did not require a different result given that she had substantial consultation with an appellate attorney.

Family Law: Family Code Section 271 Sanctions Of $65,000 Against Ex-Wife Affirmed On Appeal

Ex-Wife Prevented Ex-Husband’s Access To His Lawyer Such That Conservatorship Had To Be Established, And Wife Had Ability To Pay From Her Divorce Equalization Payment.

            A family law judge concluded in Marriage of Henkel, Case No. H044147 (6^th Dist. Dec. 12, 2019) (unpublished) that ex-wife should be assessed with Family Code section 271 sanctions of $65,000 to inure to the benefit of ex-husband.  After all, ex-wife had engaged in a bogus incapacitation scheme which prevented ex-husband’s lawyer from having access to him, requiring initiation of a successful conservatorship so the attorney could gain access.  The Sixth District affirmed the sanctions order, determining that the order did compensate ex-husband for some of the expenses of the conservatorship proceeding.  Although no financial need is required for a 271 sanctions order, ex-wife did have the financial wherewithal based on a divorce equalization payment ordered earlier in the dissolution matter. 

Family Law: $2,500 Fee Award Reversed For Abuse Of Discretion

Trial Court Failed To Consider Any Actual Evidence And Based Its Decision Solely On Argument Of Counsel and Unsworn Statements.

            In Marriage of Pasco, Case No. C085721 (3d Dist., November 25, 2019) (published), husband requested an order terminating spousal support based on wife’s new job and increased monthly income.  To support his request, husband hired an expert to review financial records to determine the monthly amount wife would need to maintain the marital standard of living. 

            Wife opposed husband’s request, retained her own expert, and made a request for attorney fees.  The court set the matter for a two-day trial.  On the first day of trial, the trial court found no changed circumstances warranting an order terminating spousal support, but did so without considering any evidence.  Rather, the trial court listened to arguments from counsel, and may have reviewed wife’s trial brief and the parties’ declarations which were never entered into evidence.  In addition to denying husband’s request to terminate spousal support, the trial court also awarded wife $2,500 in attorney fees. 

            Husband appealed – arguing that the trial court abused its discretion by denying his request “without ever actually taking evidence.”  Wife opposed – arguing that the trial court acted within its discretion in refusing to hear oral evidence.

            The Third District, in disagreement with wife's contention, reversed and remanded with direction to proceed with the previously scheduled two-day trial barring any settlement or circumstances negating the need for the trial.  Citing In re Marriage of Swain (2018) 21 Cal.App.5^th 30, 836-837, the Third District concluded that while trial courts have broad discretion in deciding whether to modify a spousal support order, findings must be based on substantial evidence – something not done here.  The appellate court went on to add that the trial court was precluded from relying on the parties’ declarations which had not been admitted into evidence because a prima facie showing of changed circumstances existed based on husband’s declarations at trial (In re Marriage of Boblitt (2014) 223 Cal.App.4^th 1004, 1022), and that it was further precluded from relying on unsworn statements of either party and on argument of counsel pursuant to In re Heather H. (1988) 200 Cal.App.3d 91, 95; People v. Superior Court (Crook) (1978) 83 Cal.App.3d 335, 342; and California State Bar Rules of Professional Conduct, Rule 3.4(g).

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.