Appellate Court Reverses Partial Basis For 271 Award, Requiring A “Relook” Below.
Husband was not happy in being denied part of a substantial tax refund and other rulings in his dissolution proceeding, prompting an appeal in Marriage of Becker, Case No. G048497 (4th Dist., Div. 3 Jan. 28, 2015) (unpublished). He also challenged the lower court’s award of $25,000 in “needs based” fees to wife under Family Code sections 2030/2032 and award of $20,000 in sanctions for certain litigation conduct, including activities directed to obtaining the tax refund, under Family Code section 271.
On appeal, a 3-0 panel of the Fourth District, Division 3, in an opinion authored by Justice Aronson, reversed on the tax refund issue, which then lead to a reversal of the 271 award for a “relook.” However, the “needs based” fee award in wife’s favor was affirmed.
A 2030/2032 award is based on a consideration of many factors, with financial resources being just one factor to be considered. In this instance, the lower court based the fee award on the significant disparity in the ex-spouses’ relative access to funds and ability to pay for legal representation. (In re Marriage of Sorge, 202 Cal.App.4th 626, 662-663 (2012) [discussed in our Jan. 7, 2012 post].) That sufficed as far as a predicate to justify the award.
However, given the reversal on the tax refund issue, a different result occurred with respect to the 271 order. That award was based on husband seeking the tax refund as well as other litigation activities. The reversal on the refund issue—determining it was meritorious—required a reversal and remand for the trial judge to see if other conduct justified a 271 award (and, if so, an adjustment in the amount from the previous award, again if any).