However, Denial of Needs-Based Fee Motion Remanded For Failure to Engage in Needs Based Analysis, Although Outcome May Not Differ.
Justice Rylaarsdam, on behalf of a 3-0 panel, in Marriage of Restaino, Case No. G045429 (4th Dist., Div. 3 May 16, 2013) (unpublished), affirmed a $75,000 sanctions (Family Code section 271) order against wife as well as the denial of two Borson motions by her family attorneys (Borson allows former attorneys to request and recoup fees from the other litigant, ex-husband in this case). However, ex-wife was denied fees on certain property division issues, but the appellate court remanded but did indicate that the outcome may not be different the second time around.
The reviewing court initially determined that the pendency of wife’s prior appeal did not divest the lower court from ruling on the fee/sanctions issues because they were reserved and collateral in nature. On to the merits the justices went.
The 271 sanctions were sustained because the lower court could conclude ex-wife unreasonably refused some settlement proposals from ex-husband on property division issues.
Because the law now requires that the needs-based analysis be undertaken and the record revealing in express findings that it was done, the matter had to be remanded as far as the refusal to award 2030/2032 fees to ex-wife. However, the appellate court seemed to tell appellant that the result might not differ for two reasons: (1) her refusal to settle was a likewise probative factor for this motion on remand (In re Marriage of Falcone & Fyke, 203 Cal.App.4th 964, 975 (2012); and (2) the record demonstrated she had a net $600,000 from pretrial distributions, suggesting ex-wife did have ability to pay the $75,000 sanctions award.
Finally, the two Borson motions were properly denied. The first one was correctly denied because wife did not submit a declaration indicating she consented to the motion (bolstered by the fact she had sued these former attorneys for malpractice). The second one was rightfully rejected because the income and expense statement required at the time was not submitted to the lower court.