Family Law Judge Did Not Consider Husband’s Ability to Pay, And Wife Was Not Required To Make A Separate Request For Fees On Appeal When She Had Already Requested Them.
Marriage of McCallon, Case No. G054567 (4th Dist., Div. 3 Aug. 20, 2018) (unpublished) is an interesting case in which an ex-wife gets a remand opportunity to recoup fees for winning a previous appeal on other proceedings. A number of procedural and substantive issues were decided in this one, so strap up for the “judicial ride.”
What happened, boiled down, was this: wife prevailed on appeal from an order terminating spousal support, then seeking fees under a marital settlement agreement, Family Code section 271 (sanctions), and Family Code sections 2030/2032 (needs-based fees statute). The lower court denied fees on any of these bases, prompting an appeal. Wife did get relief in the form of a remand to determine fees under the needs-based fees statutes.
Appealability was the first issue. The interim order being appealed from was not a final order such that it was not appealable. It also did not qualify as a collateral final order given that wife was not directed to pay any money to husband.
The lower court did get it right as to no fee entitlement under the marital settlement agreement and section 271. With respect to the MSA, the language was not a prevailing party clause but simply reserved the right to apply for future fees under sections 271 or 2030/2032—this reservation language was not akin to a fees entitlement clause on a stand-alone basis. The section 271 sanctions request was correctly denied because ex-husband’s modification request was not frivolous and simply did not confer fee entitlement because it was reversed on appeal.
That took the appellate court to the critical needs-based fees request, which took ex-wife to the promised land as far as a reversal was concerned. The main problem is that the lower court denied fees without recognizing that the appellate court’s earlier reversal was one for the entire post-judgment order inclusive of the decision on attorney’s fees. Ex-wife was entitled to fees on remand for successful appellate work. Ex-wife also did not have to request fees somehow again until an appeal was concluded to be entitled to them—after all, a litigant like wife does not have to be clairvoyant in predicting whether an appeal would be won. Finally, on the merits, the trial court failed to consider husband’s ability to pay versus just basing a fees denial based on wife’s ability to pay. So, both parties’ relative circumstances had to considered on remand as it related to all of the germane fee motions denied below.
Acting Justice Fybel authored the 3-0 panel decision in favor of ex-wife.