Sixth District Does Nice Review of Factors in Unpublished Decision.
In our July 13, 2008 post on In re Marriage of Kline Jr. and our August 13, 2008 post on George III, we reviewed cases discussing Family Code sections 2030 and 2032, which allow for a need-based award of attorney’s fees so that one party in a dissolution proceeding has some adequate resources to litigate the family law controversy. Under both sections 2030 and 2032, the family law court has flexibility to consider the circumstances delineated in section 4320, such as the parties’ respective ages and health; duration of the marriage; assets, debts, and earning ability; and the balance of hardships, with discretion to order payment of the fee award from any type of property (e.g., community or separate; principal or income).
The Sixth District, in Marriage of Peterson and Weiss, Case No. H031450 (6th Dist. Aug. 26, 2008) (unpublished), does a nice review of need-based fee awards in a dissolution setting. The highlights of points made by the appellate court include:
· Section 2032(b) endorses no fixed measure or fixed percentage for purposes of demonstrating need (In re Marriage of Duncan, 90 Cal.App.4th 617, 631 (2001));
· Trial tactics employed by the parties may be considered in the need equation (In re Marriage of Drake, 53 Cal.App.4th 1139, 1167 (1997));
· The family law court can look at the normal factors used in gauging the reasonableness of a fee request in normal civil litigation—such as nature of the litigation, its difficulty, amount at stake, skilled required and employed in handling the litigation, the attention given, the success of the attorney’s efforts, the learning, age and experience of the attorney, any special skill needed to try the case, and the time consumed (In re Marriage of Cueva, 86 Cal.App.3d 290, 296 (1978));
· Family law courts are vested with broad discretion in making fee awards, but the awards must be just and reasonable in nature (In re Marriage of Cheriton, 92 Cal.App.4th 269, 314, 318 (2001)); and
· Sections 2032 and 4320 do not contain any limitations as to the kinds of assets that can be considered in addressing the fee motion (In re Marriage of Drake, supra, 53 Cal.App.4th at 1167).
Under the circumstances before it, there was no abuse of discretion when ex-husband was ordered to award ex-wife $30,000 in fees. Husband Larry was an attorney and had a much better asset/earning power base than wife Jeanette. Larry had the aid of two attorneys (himself and another lawyer, both certified family law specialists), while wife had one attorney who had a mounting receivable for representing her in the dissolution proceeding. The family law court did not err in considering Larry’s substantial equity in his house as a need factor.
However, the Sixth District—in a 3-0 opinion authored by Justice Duffy— did not like the aspect of the award by which Larry had to make the $30,000 fee payment in lump sum fashion within 9 days of the fee order. Obviously, it would have been impossible for Larry to refinance his house in only 9 days. On the other hand, the appellate court found the error had become moot—it was 18 months later due to the appeal time processing, which gave Larry plenty of leeway to refinance and satisfy the fee award.
The family law court did not error in continuing the trial date until the fee award was paid, because that would mean wife’s attorney would have to carry her through trial—an unfair leveraging stance by a husband against an impecunious wife.
NICE APPELLATE POINT—With respect to the exact date on which fees had been ordered to be paid, there was a discrepancy between what was reflected in the reporter’s transcript of the hearing and a minute order in the clerk’s transcript. Unless circumstances dictate otherwise, the reporter’s transcript usually trumps the clerk’s transcript in resolving such discrepancies. See Slip Opn., at p. 8 n. 12, citing In re Merrick V., 122 Cal.App.4th 235, 249 (2004).