Opinion Has An Excellent Discussion of Needs-Based Analysis for Appellate Work, Which Has A Few Wrinkles From the Analysis for Trial Level Work.
Wrinkles. Shar Pei. Wikipedia.
Presiding Justice O’Leary, on behalf of a 3-0 panel sitting in our local Santa Ana appellate court, has authored a highly informative opinion on the factors to be used in deciding to award needs-based fees for appellate work. We now review Marriage of Nigro, Case No. G047511 (4th Dist., Div. 3 Nov. 22, 2013) (unpublished).
In this matter, ex-wife, a family law attorney specialist herself, requested needs-based fees for appeals work to the tune of $25,000 against ex-husband, also an attorney. The trial judge carefully reviewed financial information, ultimately deciding that ex-wife had more net income each month (even though ex-husband had greater overall assets) such that she had sufficient ability to secure appellate representation–denying her fee request. (The trial judge especially weighted the fact she was maxing out credit debt payments rather than just making the minimum payment so as to have more net cash to devote to family law appellate work.)
The appellate court affirmed the fee request denial.
Unlike the needs-based analysis for trial work (based on ability to pay), the analysis for appellate work also considers two additional factors–the appeal/appellate response was made in good faith and was based on reasonable grounds. (Hunter v. Hunter, 202 Cal.App.2d 84, 92 (1962), with the Hogoboom Rutter Group and Witkin treatises indicating these two additional factors are at play.) Ex-wife argued that the Hunter factors were no longer relevant, but this was rejected as follows: “After searching the body of case authority regarding need-based appellate fee awards, we found no express reason stated for the two additional requirements of ‘good faith’ and ‘reasonable grounds’ for an award of need-based appellate fees. Nevertheless, we conclude the additional conditions are logically and legally sound . . . . Section 271 sanctions provide little solace to the spouse asked to finance an appeal (or appellate response) made from the start in bad faith or on unreasonable grounds. Equity supports including additional requirements when considering a request for need-based attorney fees for appellate proceedings.” (Slip Opn., pp. 13-14.)
Since Hunter is still viable law, the record certainly supported the view ex-wife, who had superior net income, could finance the appeal. The needs-based analysis was broad in nature, satisfying Alan S./Keech reasoning for the necessity of a macro methodology on this issue. Fee denial affirmed on appeal.