No Statutory Bases Existed For Fee Award or “Needs Based” Award Made Without Consideration of Proper Factors.
Former husband was assessed with adverse fee orders in family-related partition and quiet title actions involving his son and ex-wife. He appealed and won in Marriage of Lira, Case No. D054050 (4th Dist., Div. 2 Jan. 15, 2010) (unpublished).
The basis for the lower court’s decision was founded in the idea that a piece of real property was an omitted asset from a former dissolution judgment and that former husband had breached his fiduciary duty to ex-wife regarding disposition of the property. Upon review, however, the appellate court found that the real property was not an omitted asset, but was dealt with in the prior judgment—with discovery of the ownership problem leading to the partition and quiet title constituting a problem that wife should have picked up on (especially given she was represented by counsel). This led to a reversal of all the fee awards. However, there were other problems as well. First, the partition action was between wife and son, not father–such that the award against him could not stand. Second, nothing in the quiet title statutory scheme provided for an award of attorney’s fees against father. Third, father did not breach any fiduciary duty with respect to an omitted asset, which prevented any award of fees under Family Code sections 1101(g) or 271. Finally, the record showed the family law commissioner failed to factually considered the respective needs of husband and wife in reaching the fee award, which of itself required reversal (Fam. Code, §§ 270, 2030(a)(2)(A), 4320).
