Section 4320 Financial Needs Factors Are Irrelevant in Setting 271 Fee Award.
Family Code section 271 is a sanctions-oriented fee shifting statute, allowing family law judges the ability to assess fees for litigation conduct that is “over the top” in the family law arena. Does a family law judge have to consider the financial needs factors under section 4320 in assessing a fee award under 271 (like it would for rendering a fee award under sections 2030/2032)? No, said the Fifth District in a recent unpublished decision.
Father in Marriage of McBrien, Case No. F055763 (5th Dist. Mar. 23, 2010) (unpublished) was awarded $16,000 in attorney’s fees under Family Code section 271, which fees were ordered against losing ex-wife/mother in a bitter child custody battle. (Father had paid $32,000 in the course of the dissolution proceedings.) Mother was representing herself, notwithstanding she was also suing four previous attorneys who had provided representation in the divorce. In assessing the fee award against mother, the family law judge found mother had $2,500 in monthly spousal support and $90,000 in proceeds from the sale of the family residence.
Mother’s challenge to the fee award was rejected on appeal.
No financial need is required to be shown for a 271 award, which is in the nature of a penalty. The award simply cannot impose an unreasonable financial burden on the sanctioned party. (In re Marriage of Corona, 172 Cal.App.4th 1205, 1225 (2009).)
Mother argued that the lower court had to consider the financial needs factors set forth in Family Code section 4320. That argument was rejected because the parties’ relative financial needs are irrelevant in setting a 271 fee award.
The $16,000 award was no abuse of discretion given the spousal support and family house proceeds received by the mother.