Family Law: Fourth Time Appeal Is No Charm For Losing Wife

 

She Has To Pay $26,650 In Appellate Fees And Costs To Husband Under Needs-Based Statute.

     We knew one would not go well for the loser–in this case, the ex-wife–when the appellate court ominously observed early on: “This case is before us for the fourth time.” It didn’t.

     Ex-wife lost two prior fee battles and appeals. She won the third fee battle on appeal, but only for a remand on the reasonableness issue. That brought the parties in Marriage of Moody, Case No. A128515 (1st Dist., Div. 5 June 22, 2011) (unpublished) to the fourth appeal of a trial court’s decision to award husband $26,650 in appellate fees and costs so he could defend the third appeal. [We have blogged on the prior appellate decisions in our March 21, 2009, June 24, 2009, and June 26, 2010 posts–a virtual appellate trifecta!] She did not win the appeal of the $26,650 award.

     Wife first made an argument that we have seen frequently: the appellate court’s earlier directive of “each side bearing their costs on [the third] appeal” precluded a fee award. Not so, said the appellate panel, citing Mustachio v. Great Western Bank, 48 Cal.App.4th 1145, 1149-1150 (1996). [Butler-Rupp v. Lourdeaux, 154 Cal.App.4th 918, 925-928 (2007) also supports this conclusion, relying on Mustachio.]

     She also challenged the needs-based determination, but the record supported the award to husband–wife had more income than husband and the current economic slump had impacted husband’s earning power. The appellate court also found that $26,650 in fees was not grossly excessive for the time spent by husband on the third appeal.

Scroll to Top