One $42,169.75 Component Of The Fee Award Was Remanded For Restudy, With the Remainder Of The $204,682.97 Award Affirmed, Although It Could Be Offset By Amounts Ex-Husband Owes To Ex-Wife.
Family law proceedings can be messy. Domestic violence (DVRA) proceedings often are brought, with the nonprevailing party facing exposure for fees and costs under certain circumstances. Malinowski v. Martin, Case No. A172705 (1st Dist., Div. 3 Dec. 4, 2025) (unpublished) is an example of where a non-prevailing party ex-wife losing a DVRA petition, found to be frivolous and abusive, was assessed with a substantial fee award, most of which was affirmed on appeal, although it might be offset against amounts that ex-husband owes ex-wife. (These same parties are involved is a discovery sanctions order appeal, which we have also posted on.)
This case involved ex-wife’s DVRA petition against ex-husband relating to children from the marriage. The lower court denied the petition, later awarding ex-husband $204,687.97 in attorney’s fees and costs under Family Code section 6344, which permits a court to award fees and costs to a prevailing respondent showing that the DVRA proceeding was frivolous or abusive in nature if the petitioner likely has an ability to pay. The lower court’s order indicated that the amount could be offset against amounts that ex-husband owed ex-wife, and it further determined that ex-wife’s income/expense declaration showed considerable debt counterbalanced against high income—she had an ability to pay.
The 1/3 DCA affirmed, except on a $42,169.75 component of the prior attorney’s requested fees. After rejecting substantial evidence and ability to pay arguments, the panel determined that a large chunk of the fees were justified because they were supported by a sworn attorney declaration, with redacted billings not changing the result because submission of detailed billings are not required under California law and the trial court has huge leeway to base fee determinations on its observations on the work effort of the requesting counsel. However, with respect to the work of prior attorney, there was no supporting attorney declaration and the amount looked to include work in a second action –suspicions which required a remand to determine whether the prior attorney work should or should not be allowed.