Second and Sixth District Cases Show That Appellate Record Can Be The Key to Success on Appeal.
Needs-Based Fee Award Is Reversed and Remanded
In Marriage of Rothe, Case No. B202733 (2d Dist., Div. 4 Nov. 20, 2008) (unpublished), the Court of Appeal reversed and remanded a lump sum fee award of $92,552.86 in favor of wife and against husband where the appellate record showed that the trial court did not really exercise discretion by having no supportive evidence and not attempting to give the husband adequate due process in the fee proceeding. Husband appealed and won.
Interestingly enough, the first issue was appellate jurisdiction. The trial court had assessed fees of $88,552.86 in a July 2007 order and then assessed further fees of $4,000 which was added to a “composite” order in September 2007 totaling $92,552.86. Husband only appealed the July 2007 order, such that wife claimed the $4,000 additional fees in the September 2007 could not be challenged. By analogy to Grant v. List & Lathrop, 2 Cal.App.4th 993, 997 (1992), the Second District, Division 4 found that wife was put on notice that husband was challenging the entire fee award and was not prejudiced by a liberal reading of the notice of appeal to encompass the September 2007 order. (BLOG OBSERVATION—As we discussed in our November 15, 2008 post on Christie v. Piccolotti, this appellate law issue needs to be clarified in situations where there are multiple prevailing party/fee fixing orders. Clarification is needed so that both parties and practitioners have some closure on how to proceed. The most prudent course would to appeal from all of these multiple orders in light of the current state of California’s jurisprudence in this area.)
That brought the appellate panel to the merits of the fee award. Family Code section 2030 allows a family law judge discretion to order one spouse to pay for the fees of the other, but it must be based on need and comparison of the respective financial resources of each side. Here, the problem was that the lower court did not show that any consideration was given to the “need” factors set forth in the statutory and case law. In fact, nothing showed that husband could make a lump sum payment of over $90,000. The family law judge’s reaction, over objection, was to tell husband to take it up on appeal. He did, and won—especially because the record showed his expenses outstripped his income, he had no savings or liquid assets, and a lump sum payout seemed to be a near impossibility. (See In re Marriage of Keech, 75 Cal.App.4th 860, 868-869 (1999).) The reversal was ultimately based on due process grounds, requiring a reconsideration of fixing fees upon remand.
Litigiouness-Based Fee Award Is Affirmed
An entirely different picture was presented in In re Marriage of Earls and Amdahl, Case No. H031582 (6th Dist. Nov. 21, 2008) (unpublished). There, the Court of Appeal affirmed a discovery-related attorney’s fees award of $60,000 and family law litigiousness-related fees award of $225,000 against wife, based on a record that showed a history of trying to undo agreements that had been previously agreed to by wife.
Both awards were predicated primarily upon Family Code section 271, which allows the family law judge discretion to award fees against a party or attorney frustrating the policy of the law to promote settlement or to reduce the costs of litigation through cooperative conduct. The Sixth District found the lower court was well justified in finding that wife had not been forthcoming in discovery and had protracted the litigation by trying to set aside agreements which she had voluntarily entered into previously. There was evidence to show the awards would not be a financial burden on wife, so no abuse of discretion was shown when the appellate record was rife with a chronology of wife’s past conduct in the case.
BLOG OBSERVATION—It could have been worse for wife, although the amount of fees spent by husband again gives credence to our mantra that fees are the tail that wags the litigation dog. Wife spent almost $57,000 on the discovery dispute, while husband said he spent $104,500 (with husband eventually being awarded $60,000). With respect to the non-discovery fee disputes, husband claimed to have spent $485,000 [Trivia: husband Calrton G. Amdahl is the son of Gene Amdahl, the computer genius and founder of Amdahl Corporation and Trilogy Systems], while wife said she spent $103,894 (with husband eventually being awarded $225,000). All we can say is wow and good thing that wife has some assets to satisfy these hefty fee awards totaling $285,000.