FLARPLs Are Conditional, With Family Code Section 2034(c) Giving The Lower Court Discretion To Resolve Disputes Over The Propriety Of FLARPs, Including Revisiting The Propriety Of Such Liens At A Later Time.
Acting Presiding Justice Yegan opened the published opinion in Marriage of Bittenson, Case No. B288233 (2d Dist., Div. 6 Oct. 22, 2019) (published) with this observation: “Family law practitioners should read this opinion with the following in mind: ‘[F]amily law court is a court of equity ….” (E.g., In re Marriage of Boswell (2014) 225 Cal.App.4th 1172, 1174.) Appellate attack upon a discretionary trial court ruling is an ‘uphill battle.’ (Estate of Gilkison (1998) 65 Cal.App.4th 1143, 1448.)”
With that, the 2/6 DCA panel proceeded to affirm a lower court’s revisiting of a Family Law Attorney’s Real Property Lien (FLARPL), which allows either party in a dissolution action to encumber his or her interest in community real property to pay reasonable attorney’s fees for purposes of retaining/maintaining legal counsel in a dissolution proceeding. In the particular case before it, husband’s trial attorney recorded three FLARPLs totaling $250,000 as security for the payment of his on-going attorney’s fees. Wife belatedly filed objections to the FLARPLs, but the objections were moot because they were not made before recordation of the liens. However, subsequently, the trial court reduced the liens under Family Code section 2034 to protect wife’s community interest in escrow proceeds from the sale of the family residence, ordering husband’s trial attorney to deposit $100,000 of the funds into a blocked account and releasing the remaining $150,000 to the attorney in satisfaction of the FLARPLs.
The lower court’s discretionary order was affirmed. Section 2034(c) makes clear that the lien is conditional such that a family law judge can revisit the propriety of a FLARPL at any time and can even expunge or limit the lien. Obviously, the lower court wanted to protect wife’s interest in escrow proceeds, such that equity was served, and no discretion was abused given the wide berth allowable under section 2034(c).
BLOG COMMENT—Interestingly enough, Justice Yegan’s citation to Gilkison (which he authored) is nice, because that opinion colorfully painted the “uphill battle” this way:
"An attorney who prosecutes an appeal from an order addressed to the trial court’s sound discretion is confronted with more than a daunting task. This is an uphill battle which, absent unusual circumstances, may be equated with confederate General John Bell Hood’s attempt to capture ‘Little Round Top’ at the battle of Gettysburg in the Civil War. General Hood did not succeed."