Husband’s Acquiescence to Family Court’s Determinations During Fee Proceeding Constituted Acquiescence to the Award.
If there is a cardinal rule that bears repeating, it is this: in order to preserve one’s challenges for a future appeal, make your objections on the record. If not, brace yourself for a subsequent retort by appellate justices that you waived the argument or acquiesced to what the trial court did below.
The failure to object haunted the appellant in Marriage of Morcoso, Case No. A118594 (1st Dist., Div. 2 Sept. 16, 2008) (unpublished).
A family law judge ordered that husband was to advance $5,000 to cover wife’s attorney’s fees, subject to later apportionment at the end of the case. On appeal, husband argued that the judge failed to consider the parties’ relative ability to pay as required by Family Code section 2030, a requirement we have explored in past posts. (See, e.g., August 28, 2008 post on Marriage of Peterson and Weiss, which also reference prior posts on section 2030.) However, husband did not come close to creating a record that would preserve this challenge.
When the award was being discussed, the judge indicated husband’s counsel had represented that husband had much greater ability to pay, to which counsel responded "all right." This failure to object to this remark was deemed an acquiescence to the trial court’s conclusion.
Beyond that, the fee award was based on an agreement between the parties by which husband’s mother’s house was going to be liened so the fee advance could be obtained by husband. Wife’s counsel indicated that the mother had offered to do it but needed time to arrange the financing. When the family law judge inquired of husband’s counsel whether that was an acceptable arrangement, counsel similarly responded, "Yes." As the Court of Appeal tersely observed: "Again, acquiescence."
The failures to object resulted in an all-too-familiar disposition on appeal – affirmance of the $5,000 fee award in wife’s favor.