Section 6334(a) Fees Are Discretionary Even If Respondent Was A Prevailing Party.
In Bennett v. Rivers, Case No. B301211 (2d Dist., Div. 3 Oct. 6, 2021) (unpublished), a respondent did prevail (although the lower court technically erred in concluding otherwise) when petitioner dismissed a domestic violence restraining order petition after she obtained a criminal protective order against respondent in a separate criminal proceeding. The lower court denied respondent’s request for prevailing party attorney’s fees under Family Code section 6344(a).
The appellate court affirmed, determining that it was harmless error to not declare the respondent a prevailing party because the fee request was properly denied anyway. Section 6344(a) fee requests are a discretionary call for the trial judge, with he or she having the ability to deny on any reasonable ground deemed to be just. In contrast, section 6344(b) is a mandatory fee-shifting statute requiring reasonable fees to be granted to a prevailing petitioner. Here, there was no abuse of discretion because petitioner obtained her relief in a criminal forum such that denying fees was an appropriate exercise of discretion.