Fourth District, Division 1 Serves a Stern Reminder to Litigants Seeking “Needs Based” Awards.
Marriage of Mells, Case No. D055917 (4th Dist., Div. 1 Sept. 9, 2010) (unpublished) is a situation where mother obtained a substantial child support arrearages award against father as well as awards of $7,500 in attorney’s fees and $2,778.24 in special master fees. Although the child support order was affirmed, there was a reversal and remand of the fees awards.
Reason? Although Family Code section 3557(a)(1)(A) does authorize an attorney’s fees award to a custodial parent who has to bring an action to enforce an existing child support order, it is tempered by section 270—which requires a showing that the fee-bearing party has the ability to pay.
In Mells, there simply was nothing of record (current income and expense declarations or otherwise) to support even implied findings on the “ability to pay” issue. That meant the fee awards had to be reversed and remanded for a determination of this issue. So, include up-to-date income and expense declarations or other proof of financial condition for both sides if you want to sustain family law fee awards in child support arrearage contests.