Third Party Claimant May Have No Standing to Receive 2030 Needs Award in Dissolution Proceeding, While Attorney May Lack Standing to Appeal Borson Motion Denial.
The interesting thing about this blog is what we learn each day from reading and then posting on various decisions. Here, we learned about motions brought under Marriage of Borson, 37 Cal.App.3d 632 (1974).
A Borson motion is one where an attorney expecting to be discharged by a client in a dissolution dispute may file a motion pursuant to Family Code section 2030 seeking attorney’s fees and costs as long as the attorney is still counsel of record and has the former client’s express/implied consent to bring the motion. The rationale behind this motion is it is one brought on behalf of the former client because it avoids circuity in litigation—former counsel suing client for fees, with client in turn asking the court to order the ex-spouse to pay attorney instead under section 2030. In the next case we discuss, a Borson motion filed by an attorney representing a third party claimant joined in a dissolution proceeding (mother of the ex-wife) sought fees for his work on behalf of the third party. Attorney appealed a fee denial (one without prejudice), a determination affirmed on appeal in Marriage of Calienes, Case No. B217517 (2d Dist., Div. 7 Aug. 17, 2010) (unpublished).
In a scholarly review of the law relating to Borson motions, Presiding Justice Perluss—on behalf of a 3-0 panel—initially observed that there was a split opinion on whether a lawyer had standing to appeal directly from the denial of a Borson motion. (Compare In re Marriage of Kelso, 67 Cal.App.4th 374, 383 n. 3 (1998) [yes] with In re Marriage of Tushinsky, 203 Cal.App.3d 136, 142 (1988) [no; attorney not aggrieved for appeal purposes].)
Beyond that, appealing attorney cited no authority—with the appellate panel also finding none—to support the proposition that a third party claimant is eligible for a “needs based” fee award under section 2030. The panel questioned whether this could be so, given that section 2030’s purpose was to level the playing field for spouses, not joined third parties.
However, these issues did not have to be resolved. Reason? The record showed no abuse of discretion in denying the motion. It demonstrated that wife had defrauded husband over the course of the proceedings, using funds to arrange a transaction that accrued to the benefit of her mother (the third party) rather than the community. Given that the trial court concluded it would not be equitable to force ex-husband to pay ex- mother-in-law’s fees, the appellate panel had no basis to overturn the denial of the Borson motion.