Fourth District, Divisions Three and One Affirm Fee Awards Under Family Code sections 2030 and 2032.
In our category “Family Law Awards,” we have frequently seen the courts awarding attorney’s fees to one spouse in family court proceedings based on Family Code sections 2030 and 2032. The purpose of these statutory provisions is to have the party with more financial resources equalize the fight for the opposing party so that fees can be paid to the opponent’s attorney. In making a decision to award fees under these provisions, the family law judge must consider all evidence concerning the parties’ current incomes, assets, and abilities (including investment and income-producing properties) in terms of assessing one party’s relative “need” and the other party’s ability to pay. (In re Marriage of Drake, 53 Cal.App.4th 1139, 1167 (1997).) In the next two cases, different Divisions of the Fourth District affirmed fee awards against husbands under sections 2030 and 2032.
Marriage of Page, Case No. G039177 (4th Dist., Div. 3 Feb. 25, 2009) (unpublished)
Here, husband was ordered to pay $10,000 of wife’s fees based on her claim of a disparity in overall financial situations. (Wife claimed to have already paid $29,000 in fees and incurred—but not paid—another $36,000 in fees; husband claimed to have paid $65,000 to his attorney.) Evidence was introduced showing (1) he owned several pieces of real estate as his separate property, (2) he owned separate brokerage accounts with some high balances as separate property, (3) he removed “bundles” of money from a safe at home, and (4) he had a higher monthly income than his wife. Although husband contested the extent of resources he had, Acting Presiding Justice Bedsworth—on behalf of a 3-0 panel of Division 3—found no abuse of discretion, determining husband ignored evidence supporting the fee award (a “no no” under the abuse of discretion standard).
BLOG UNDERVIEW—Justice Bedsworth writes a funny column entitled “A Criminal Waste of Space” for The Orange County Lawyer. It’s a hoot.
Marriage of Nguyen, Case No. D052712 (4th Dist., Div. 1 Feb. 25, 2009) (unpublished)
In this one, husband was hit with a $7,500 fee award (out of a requested $13,781 in fees) made payable to wife’s attorney. Husband (1) had $550,000 equity in properties, (2) received gross annual rental income of $79,600 (which netted to $2,124), and (3) received $150,000 in loan proceeds. In contrast, wife’s monthly income was pretty close to eaten up by her monthly expenses. Husband’s challenges on appeal were rejected, because the appellate court determined husband had the ability to pay—as evidenced by the loan he obtained by borrowing against equity in some of the properties.
Husband argued that the trial court abused its discretion in considering the amount of fees that husband spend in defending against certain motions of wife in reaching his fee determination. Although disputing that this was necessarily done, the Fourth District, Division 1 rebuffed husband’s argument that In re Marriage of Keech, 75 Cal.App.4th 860, 869-870 (1999) prevented such consideration, observing “Keech does not hold otherwise, and even were it to do so, we would disagree with it and decline to follow it.” (BLOG OBSERVATION—This reasoning suggests that the fees spent by the objecting party may have relevance as far as gauging a reasonable fee award to the requesting party in family law matters.)
Husband also lost in a companion appeal to Division 1 (Case No. D053131, also decided via an unpublished opinion on February 25, 2009). For much the same reasons, the Court of Appeal affirmed the family law judge’s award of $6,000 to wife for winning a prior appeal (with the $6,000 being the exact amount of her compensation request).