First District Affirms, While Fourth District Reverses.
Under our category “Family Law,” we previously have explored Family Code section 271, which authorizes a family law judge to award fees to a family law litigant where the other side fails to promote settlement or fails to reduce the costs of litigation by being uncooperative. Two recent decisions reviewed section 271 orders, coming to different results as to the propriety of the orders. Marriage of Moody, Case No. A121691 (1st Dist., Div. 5 Mar. 11, 2009) (unpublished) and Marriage of Burns, Case No. D053065 (4th Dist., Div. 1 Mar. 13, 2009) (unpublished).
Tie workers driving steel wedges into a pine log to split, Pie Town, New Mexico. Russell Lee, photographer. 1940. Library of Congress.
In Marriage of Moody, no abuse of discretion was found in ordering a wife to pay husband $10,000 (out of a requested $19,000) in attorney’s fees under section 271 as well as Family Code section 2030 (based on the “need” of husband). Although wife argued that the record did not demonstrate husband could not pay, the Court of Appeal noted that the award was separately based on section 271, which is a sanctions-based statute not requiring a “needs” analysis. The record did show that wife had needlessly complicated the proceedings, with the family law judge crediting husband’s attorney’s declaration about the amount of fees (with it being unnecessary to include an itemized breakdown of time spent on the case). Beyond that, however, the record did show that wife had more income and assets than husband, which would have supported a fee award under section 2030.
However, a section 271 fee award did not hold up in Marriage of Burns. There, an attorney was ordered to pay $20,000 in fees to husband as a section 271 sanction. Attorney won his challenge to this award against him. The appellate panel found that nothing in section 271 contemplated an award against an attorney so as to require reversal of the fee award. (Orange County Dept. of Child Support Services v. Superior Court, 129 Cal.App.4th 798, 804 (2005); see also Burkle v. Burkle, 144 Cal.App.4th 387, 403-04 n. 7 (2006); In re Marriage of Daniels, 19 Cal.App.4th 1102, 1110 (1993); Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2008) para. 14:237, p. 14-62; 2 Cal. Civil Practice: Family Law Litigation (2003) sec. 10:14, p. 22.)