Second District, Division 3 Sustains Denial of Fees under Family Code section 6344(a).
The next case reinforces the notion that if you are going to appeal, make sure you develop an adequate record on review—especially so when a fee entitlement statute is permissive and any fee ruling is scrutinized under the abuse of discretion standard.
Family Code section 6344(a) gives the court discretion in deciding whether to award attorney’s fees and costs to the prevailing party in a restraining order matter; in other words, it is permissive in nature. In Mironov v. Mironov, Case No. B206527 (2d Dist., Div. 3 Mar. 17, 2009) (unpublished), brother challenged a court’s denial of a requested $15,470.50 in attorney’s fees after he successfully obtained a restraining order against his sister. The trial court found sister’s fee opposition to be persuasive and observed that the amount of brother’s requested fees was “outrageous for a restraining order.” Brother appealed this denial ruling.
The Second District, Division 3 affirmed, mainly because brother failed to provide an adequate record for review. The clerk’s transcript on appeal did not show the attorney work leading up to the restraining order, which hampered review and made too difficult to show there was an abuse of discretion. Beyond that, the trial court did allow the parties to present their positions both in writing and orally, followed by an adequate statement of the basis for its decision in denying an award of fees. No abuse of discretion was found under the circumstances.