Sixth District Rules Again On Dissolution Dispute Between Repeat Litigants.
In Marriage of Falcone and Fyke, Cases Nos. H032396 & H032482 (6th Dist. May 1, 2009) (unpublished), the Sixth District dealt, yet again, with a former husband and wife that had been before it on numerous occasions. (We, too, have posted on their prior appellate battles. See, e.g., our posts of July 8, 2008 and March 6, 2009.) In this one, wife appealed two things: (1) denial of her oral reconsideration motion requesting temporary attorney’s fees; and (2) the trial court’s order awarding sanctions of $23,680 to her former husband under Family Code section 271. She was unsuccessful on appeal.
With respect to the oral reconsideration motion for temporary fees, the Court of Appeal dismissed the appeal based on its conclusion that the reconsideration motion order was not appealable. Wife mainly countered based upon In re Marriage of Hobdy, 123 Cal.App.4th 360, 364 (2004), where a second “needs” motion under Family Code section 2030 was permitted because section 2030 prevailed over the more general Code of Civil Procedure section 1008 reconsideration statute. However, the Sixth District found that “Hobdy did not hold that need-based attorney fees motions can never be construed as motions for reconsideration.” (Slip Opn., at p. 5.) Here, the renewed oral motion was a reconsideration request, based on wife’s unhappiness with the court’s original order. “Even if Hobdy is correct that Code of Civil Procedure section 1008 does not deprive the trial court of jurisdiction to rule upon such a motion, where the trial court refuses to reconsider its prior decision, the court’s order is still an order denying a motion for reconsideration. Allowing the litigant to appeal the ruling would give her two appeals from the same order.” (Slip Opn., at p. 6.) (BLOG OBSERVATION—We think the Sixth District did not like the result in Hobdy.)
Wife was no more successful in contesting the section 271 fee award, which is in the nature of a sanction. (See our discussion of this statute under our category “Family Law Awards.”) Wife had been unsuccessful in several appellate proceedings, with husband racking up fees and costs totaling $32,680. The appellate court found that the $23,680 sanctions award by the trial court was justified based on (1) wife’s “scorched-earth approach,” (2) wife seeking to negate every prior order even though she had benefited from many of the orders, and (3) the fee award being a very small percentage of her $600,000 in assets such that the sanctions were reasonable in nature. Wife also challenged that husband’s fees paperwork was defective because husband never verified same. Although family law pleadings must be generally verified under Family Code section 212, the Court of Appeal found it was proper for the attorney to verify the information based on attorney’s personal knowledge instead.