Fourth District, Division 2 Remands For Proper Determination, Using Applicable Legal Principles.
In our category “Family Law Awards,” we frequently have surveyed decisions in which attorney’s fees were awarded to one side in a family law dispute based on “need” (Family Code sections 2030 and 2032) or as a “sanctions” because of litigious conduct (Family Code section 271). The next case reversed and remanded a fee award because the trial court never specified the statutory basis for the award and there no evidence of record that supported a “need” based award.
Husband in Marriage of Condoluci, Case No. E046238 (4th Dist., Div. 2 May 14, 2009) (unpublished) was ordered to pay $750 in attorney’s fees to ex-wife’s probate estate. He appealed, and won (at least for the time being).
The Fourth District, Division 2 reversed because neither the wife’s attorney nor family law court specified the particular statutory basis for the award and received no evidence concerning the relative financial positions of the parties. These defects were fatal. No section 2030/2032 awards were justified without current financial information from both sides (which would include information about assets in wife’s estate). As to awarding fees as a sanction under section 271, the requesting party did not do so under proper notice as far as motion timing rules or did not specify the basis upon which the request was made. So, the appellate panel reversed and remanded without prejudice to the trial court making a proper award of fees. Who says appellate jurists do not pay attention to due process concerns? This case shows they do.