1. Marriage of Bareket and Marcus, Case No. H032760 (6th Dist. Nov. 12, 2009) (unpublished).
In this one, former husband was awarded attorney’s fees as the “prevailing party,” with the family law judge not specifying that it was a sanction or there was a contractual predicate for the award. Result? Reversal. “We are not aware of any Family Code provision, or any provision among the parties’ several agreements, that allows for an award of attorney fees based solely upon the party’s success in litigation.” (Slip Opn., p. 15.)
2. Marriage of Sisson, Case No. G040518 (4th Dist., Div. 3 Nov. 12, 2009) (unpublished).
Former husband challenged portions of the judgment ordering him to pay his ex-wife permanent spousal support of $2,000 per month and more than $100,000 of fees and costs she had incurred in the dissolution action. (With respect to the fee/costs award, $83,000 was to be paid off at a rate of $2,000 per month, and the other $21,500 at a rate of $1,000 per month.) No determination was made by the family law judge that husband was reasonably likely to be able to pay such a substantial fee/costs award. Result? Another reversal. The judgment specified that the lower court did not consider any assets and obligations in determining the award of spousal support, a refusal which also infected the fee/costs award with infirmity. (Family Code section 2030 expressly requires an assessment of each party’s needs and financial ability to pay.) Furthermore, other aspects of the judgment actually tended to demonstrate that husband did not have the ability to pay, based upon receiving the former marital residence having no value after he had to pay wife one-half of the net equity and one-half of the proceeds of prior refinancings. Also, the record showed he would owe a substantial retroactive debt to wife, had gross income which had declined by at least one-half, had his own expenses, and had to pay his own attorneys in the divorce proceeding. All of this showed he likely did not have the ability to pay the hefty fee award, even on an installment basis. The matter was remanded for reconsideration of both awards. This 3-0 opinion was authored by Acting Presiding Justice Bedsworth.