However, Ex-Wife’s Appeal From The Final Judgment Was Timely Because the Interim Order Denying Fees Was Not A Separately Appealable Order.
The main lesson from Marriage of Davis, Case No. D080980 (4th Dist., Div. 1 Sept. 18, 2023) (unpublished) is a simple one: if you are seeking fees, make sure you have a fee entitlement basis which is tethered to the matter before the lower court; otherwise, you lose, as happened in the opinion upon which we now post.
In a dissolution hearing, ex-wife orally requested her attorney’s fees to obtain counsel in a proceeding under Family Code section 3121, which allows need-based fees akin to those allowable under sections 2030/2032 where an action involves exclusive custody of children from the marriage. The court denied the motion, prompting an appeal.
The first issue was appealability. Given that this matter involved the denial of a fee request, the appellate court agreed that the interim denial did not have to appealed until notice of a final judgment, with ex-wife timely appealing from that. It did note a rift in appellate thinking, but followed the majority view that an appealable collateral order must direct the payment or money, not a denial of money. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2022) § 2.78, also discussing the minority view in Muller v. Fresno Community Hospital & Medical Center, 172 Cal.App.4th 887, 901-902 (2009).)
On the merits, the record showed that the hearing matter before the lower court involved requests for a domestic violence restraining orders (DVROs) and a residence request, not a child custody controversy. It was not enough that the dispute was part of the overall dissolution case, but it had to be targeted at an exclusive child custody dispute. (Compare with C.T. v. K.W., 71 Cal.App.5th 679, 681-685 (2021), where the DVRO petition included a request for child custody and visitation orders justifying a fee grant under analogous fee provision under the Uniform Parentage Act).