First District, Division 3 Affirms Fee Denial; Wife Also Hit With $4,000 in Sanctions Under Section 271.
Ex-wife was married over 18 years to a successful attorney, who was apparently generous in both support payments and settlement equalizations in dissolution proceedings—at least according to the Court of Appeal. There were substantial assets to divide, and wife was deemed capable to earning $65,000-$75,000 a year (although not working since 2002). The trial court found ex-wife’s job search was inadequate. Ex-husband also may have “overpaid” support payments, with wife receiving assets having substantial equity. Wife then sought attorney’s fees and costs of $34,343 under Family Code section 2030, the “needs” based fee-shifting provision in family law proceedings. Husband sought attorney’s fees and costs of $23,932 under sections 2030 and 271 (the latter being a sanctions-based fee provision based on a litigant’s uncooperative, cost-driving-up actions). Trial court denied both parties’ fees/costs requests, but did assess $4,000 against wife as a section 271 sanction. Wife appealed the refusal to award her fees and costs, but did not challenge the $4,000 in sanctions.
On appeal, the First District, Division 3 affirmed the denial of fees to ex-wife under section 2030 in Marriage of Baylocq and Wilberding, Case No. A121732 (1st Dist., Div. 3 Apr. 17, 2009) (unpublished).
Wife initially argued that the trial court abused its discretion—yes, she did concede the correct review standard—in failing to consider the income disparity between herself and her ex. However, because income disparity is not the sole dispositive factor to consider under section 2030 (In re Marriage of Huntington, 10 Cal.App.4th 1513, 1516. 1520-1523 (1992), the trial court did not err in weighting other factors in husband’s favor. After all, wife had earning capacity, she arguably received a $45,000 windfall when husband overpaid child/spousal support (a windfall which could have gone to payment of fees), and husband may have been overly generous in certain asset settlement reallocations.
Wife’s main argument was that the section 271 sanctions award effectively “poisoned” the lower court into denying the section 2030 fee request based on need. Not only did wife not cite any authority to support this contention, but the appellate court found independent evidence to demonstrate she had an ability to pay fees—especially the $45,000 windfall that obviously was not used to reimburse her family law attorneys. Beyond that, in a footnote, the Court of Appeal observed that In re Marriage of Drake, 53 Cal.App.4th 1139, 1157 (1997) did reason that a court may consider trial tactics (normally a sanctions consideration) in a section 2030 award.
Fee denial decision affirmed, in the case of no fees to either former spouse under section 2030.