Fees as Damages: Attorneys Asserting Claim For A Client In Order To Collect Some Of Their Attorney’s Fees Does Not Constitute Improper Purpose To Sustain A Malicious Prosecution Claim

When and how does the court award attorney’s fees for false child abuse allegations?

Family Court Sanctions

Featherstone v. Martinez –  “[i]n a vacuum, [Mother’s] declaration contained lies, was misleading, entitled, controlling, manipulative, constitutionally abusive, and dismissive of any rights to meaningfully participate in co-parenting from the initial requests and arguments of the initial filing till now [Father].”  The court deemed the request “that the court prevent overnights for two years, while limiting [Father] to an approximately one-quarter or one-half of one percent timeshare for those two years” “in and of itself, sanctionable”

Featherstone v. Martinez – “[T]he way you wrote it, it was along the lines of, I control everything, I’m the boss, and, you know, I’ll do him a favor and let him see his child.  That is not how it works. You are co-equal parents. Moms get the advantage because technically, literally, when a child is born, they are there, obviously. But then when it comes to court, they think, well, I’m the mom. I always win.” Mother agreed Father had always been involved in Minor’s life and the court then remarked, “So it’s not a lack of familiarity. You should literally be at 50/50. Not, I let him see her whenever he wants.  But he has a weird travel schedule.”

When Mother informed the court that, during mediation, she offered Father six hours of visitation “or whenever he’s home[,]” the court asked Mother if she would like it if the roles were reversed and said: “I know how hard it is.  You gave birth to the child.  You held the child.  You’ve taken care of this child.  It’s hard to conceptualize that he is every bit of the parent that you are, especially in this case because he’s been there from birth.”  The court then said, “So here’s the law:  If everything is equal, you’re supposed to be sharing 50/50.  Not six hours.  50/50.”

The court then made its ruling as follows: “I’m going to side completely with respondent today, and I think in the future you’re going to have a really hard time, because although I’ve tried to explain it, emotionally—and I understand—you do not feel like he’s an equal parent and you feel like you need to drag this out and make it slow.”

Featherstone v. Martinez – Family Court Sanctions – $$$

This is an appeal from a family court’s self-described sua sponte sanctions order under Family Code section 271.1 The family court judge ordered Appellants (Mother) and her attorney, to each pay $10,000 to Respondent (Father) and partly justified the sanctions on its finding that Appellants unjustifiably accused the judge of being biased (or appearing to be biased).

The Second Appellate District considered whether the sanctions order represents an abuse of the family court’s discretion and reversed the family court’s order. The court explained that as to the attorney, the family court’s sanctions award is obviously wrong: Section 271 permits imposing sanctions only on a party, not a party’s attorney, and the sanctions award against the attorney is, therefore, improper. As against Mother, the sanctions award is an error, too, even if a marginally less obvious one. There is a question as to whether section 271 even authorizes a family court to issue sanctions on its own motion, but the court explained it need not decide that issue because the conduct relied on by the family court to impose sanctions here, even considered in the aggregate, does not rise to the level of meriting sanctions. The family court abused its discretion in concluding otherwise.

Filed 12/21/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from an order of the Superior Court of Los Angeles County, James E. Horan, Judge.  Reversed.

Decker Law and James D. Decker for Plaintiff and Appellant and Objector and Appellant.

No appearance for Defendant and Respondent.

This is an appeal from a family court’s self-described sua sponte sanctions order under Family Code section 271.1 The family court judge ordered appellants Annaquite Featherstone (Mother) and her attorney, Crystal Hill (Hill), to each pay $10,000 to respondent Brian Martinez (Father) and partly justified the sanctions on its finding that appellants unjustifiably accused the judge of being biased (or appearing to be biased).  We consider whether the sanctions order represents an abuse of the family court’s discretion. LEARN ABOUT SUA SPONTE HERE

1. BACKGROUND
2. Case History
3. The petition

Mother and Father had a child (Minor) together in 2019.  Approximately two months after Minor was born, Mother filed a parentage petition requesting primary physical and joint legal custody of Minor.  In her supporting declaration, Mother represented Father traveled a lot for work and was usually in town only three to four days every month.  Mother acknowledged Father had been heavily involved in caring for Minor and had visited Mother’s house every day he was in town.  Mother declared she wanted Father to visit Minor, but she wanted each visit to be preceded by two weeks’ advance notice, to last only three to four hours, and to take place at Mother’s home until Minor was six months old.

Father filed a response with his proposed visitation schedule, and Mother filed a second declaration.  Mother expressed concerns with Father’s proposal, particularly his requests that each visit with Minor last eight hours and that overnight visits commence when Minor was six months old.  Mother proposed overnight visits be delayed until Minor was two years old.

2. The first hearing

The initial hearing in the case was held in December 2019.  Mother was not represented by counsel at the time and asked for a continuance so she could obtain counsel.  The family court granted the request but discussed visitation with the parties so it could make an initial interim visitation order.

Mother said she was very open to allowing Father to see Minor at any time.  In response, the family court referred to the declaration Mother filed with her parentage petition and expressed concern with the manner in which she drafted it: “[T]he way you wrote it, it was along the lines of, I control everything, I’m the boss, and, you know, I’ll do him a favor and let him see his child.  That is not how it works. You are co-equal parents. Moms get the advantage because technically, literally, when a child is born, they are there, obviously. But then when it comes to court, they think, well, I’m the mom. I always win.” Mother agreed Father had always been involved in Minor’s life and the court then remarked, “So it’s not a lack of familiarity. You should literally be at 50/50. Not, I let him see her whenever he wants.  But he has a weird travel schedule.” The court also asked Mother if she was breast-feeding—admonishing her “[d]on’t . . . lie” and “[d]on’t exaggerate”—before she answered.  When Mother said she was not breast-feeding, the court observed that this meant there were “no logistical problems” with visitation.

When Mother informed the court that, during mediation, she offered Father six hours of visitation “or whenever he’s home[,]” the court asked Mother if she would like it if the roles were reversed and said: “I know how hard it is.  You gave birth to the child.  You held the child.  You’ve taken care of this child.  It’s hard to conceptualize that he is every bit of the parent that you are, especially in this case because he’s been there from birth.”  The court then said, “So here’s the law:  If everything is equal, you’re supposed to be sharing 50/50.  Not six hours.  50/50.”

Father clarified he was only requesting for one weekend of visitation per month, with eight hours on Saturday and eight hours on Sunday.  The court asked Mother if she thought that was unreasonable, and she replied that Minor was young and she wanted Father to get to know Minor. The court then made its ruling as follows: “I’m going to side completely with respondent today, and I think in the future you’re going to have a really hard time, because although I’ve tried to explain it, emotionally—and I understand—you do not feel like he’s an equal parent and you feel like you need to drag this out and make it slow.”

3. Mother’s motion to disqualify the judge

Mother retained Hill after this first hearing, and Hill filed a motion in March 2020 to disqualify the family court judge under Code of Civil Procedure section 170.1 because the judge exhibited bias against her at the earlier December hearing we just described.  When the parties appeared in court before the hearing date on the motion to disqualify, Hill informed the family court that she had filed a motion for disqualification.

The family court judge stated the motion to disqualify him was “almost by definition untimely under these circumstances.”  Hill, however, represented that her office received the transcript for the earlier December hearing only earlier that same week and the delay in transcript preparation prevented pursuing the motion to disqualify more quickly.  The judge stated he was advancing the motion to the hearing and striking it as untimely because, in his view, Mother should have filed the motion in December 2019 or January 2020 when she was aware of the asserted bias.

The family court also briefly addressed visitation issues during this same hearing.  During the course of argument, the court stated Hill was not directly answering the court’s questions and warned that, without improvement, they would “start talking about sanctions.”

4. Proceedings in 2020 that are pertinent to the court’s later award of sanctions

Mother submitted a proposed judgment in July 2020.  Father objected to the judgment and contended it did not reflect orders the court had made in several respects.[2]  The family court rejected the proposed judgment.

At a hearing in November 2020, the family court instructed the parties to share driving duties for physical custody exchanges and to record the exchanges so they would have evidence in case an issue arose.  The court also made a record regarding the proceedings that had transpired in the case and expressed concern with, among other things, the initial declarations Mother filed earlier in the case.

5. Proceedings in 2021, and the court’s return to discussing sanctions

In February 2021, Father filed a trial brief in which he requested Mother be ordered to pay $7,000 toward the cost of his attorney fees (that amounted to $24,851 by that point).  He argued the requested fees had been incurred defending against Mother’s unreasonable litigation, including: her motion to disqualify the family court judge, her proposed judgment that did not correctly reflect the orders the court had made, and her refusal to settle.  A declaration accompanying Father’s trial brief that included the request for sanctions averred the attorney fees request was made pursuant to the Family Code’s sanctions statute—section 271, subdivision (a)—and further described what was characterized as Mother’s unreasonable litigation behavior.

At a hearing on February 24, 2021, the family court again attempted to make a record of how the litigation had proceeded to that point.  The court specifically emphasized Mother’s early declarations and her motion for disqualification as concerning.  In reference to the latter, the court acknowledged it was “not so sure [it] should wade into” the issue because “[Mother] has the right to believe I was biased.  She always has that right, and I can’t sanction her for that.”  But the court observed “she does not have the right to file late, improperly noticed, and/or out of context motions.”

The court opined both sides “seem to have come so far that I’m not sure sanctions are necessary” but the court said it would permit both sides to argue whether sanctions should be imposed.  Mother argued Father had not properly noticed a motion for sanctions under section 271.  The court responded and stated it believed the question of whether Father gave proper notice was irrelevant because it had done (or could do) the requisite noticing itself:  “I think I noticed petitioner for sanctions on my own motion at one of the earlier hearings when things were not proceeding so well, and I have slid back against that amount. . . .  [¶]  But I did notice her.  And counsel really doesn’t have to do anything further.  It’s the court’s own motion.  It’s a 271 sanction.  The only thing I have to do is notice her.”[3]

Father’s counsel later filed a supplemental declaration regarding Father’s request for attorney fees under section 271, describing actions Mother had—or had not—taken in the period spanning from March to June 2021, including continued disputes over holiday visitation.  The declaration represented Father incurred $43,455 in attorney fees as of May 2021 and asked the court to order Mother to pay Father $10,000 toward these fees.

6. The court finds Mother’s conduct is sanctionable

At a June 21, 2021, hearing, after discussing agreements reached on other issues, the parties began discussing their agreement that Father would have one video call per week with Minor.  Father asked that the video call take place on any platform that allows video interaction between Father and Minor.  Mother interjected that she agreed to use Zoom only because Zoom is recordable.  The court asked why Mother wanted to record the calls, and Mother said she wanted the ability to record because in the past she and Father disagreed about whether Father made certain statements.

After further discussion regarding Mother’s request, the court said, “[t]here has been, and I have been concerned, and we will touch on that later, that despite all the good things petitioner has to offer, there has been a tone of control in this case.  It started with the very first pleading.”  Mother’s counsel then said, “[w]e object to that statement as being biased.  Once again we’re going to renew our motion to move the matter from this courtroom.”

The family court decided it would “temporarily move into a sanctions hearing” and described the history of the case.  In doing so, the judge stated Mother’s request to record Father’s video calls with Minor was “offensive.”  The judge also stated Mother had a controlling mindset, which continued until at least March 5, 2020.  He then said, “[b]ut here I sit just asking questions, making clear to both sides what my concerns are, and every time I attempt to do so, I’m one, interrupted, and two accused.”  Later, the court said the case was close to resolution and it would have been a great opportunity for the court to give “just the tiniest sanctions” but “now sanctions are back, thoroughly back, on the table, and I am now accused of bias because I am concerned that your position might be a little overreaching and controlling.”[4]

1. The Sanctions Hearing

The court held a hearing to impose sanctions in September 2021.  At the outset, the court stated the parties were there “for sanctions which have been noticed, re-noticed, and repeatedly noticed.”  After hearing argument from both counsel, the court stated its intention to make a record and then issue sanctions.  The court again delivered a lengthy recitation of its perceptions of the case, beginning with Mother’s initial declarations.

According to the court, “[i]n a vacuum, [Mother’s second] declaration was misleading, entitled, controlling, manipulative, and dismissive of any rights to meaningfully participate in co-parenting by [Father].”  The court deemed the request “that the court prevent overnights for two years, while limiting [Father] to an approximately one-quarter or one-half of one percent timeshare for those two years” “in and of itself, sanctionable” but declared the court was “far to[o] experienced to have moved in that direction without giving [Mother] the time and space to become familiar with the law and the real-world practices of family court in California.”

Regarding the motion to disqualify the judge, the court stated the motion was untimely and procedurally deficient.  It stated any facts supporting an alleged claim of bias were known to Mother in late December 2019.  It also stated the substance of the motion “was written out of context in an intentionally inflammatory and dishonest manner.”  The court described its own rhetoric at the December 2019 hearing as an effort “to alert mothers to the law in the state of California, while repeatedly indicating empathy for the circumstances which bring litigants to such unwarranted and overreaching requests,” and characterized the motion to disqualify as “altering the court’s statements, removing the portions wherein the court repeatedly expressed empathy towards the petitioner, while presenting the now out-of-context, aggressive-sounding language as accurate and complete.”

The court stated it declined to sign a judgment prepared by Mother in November 2020 “because it was replete with errors and omissions, which consistently, and without basis, favored [Mother].  Detailed and accurate objections had been raised by [Father’s] counsel.”

The court then reviewed the hearings in November 2020 and February 2021.  It described the November hearing (during which the court suggested the parties’ record their physical custody exchanges) as “the very last date any reasonable litigant could rationally feel as though the court was doing anything other than moving them towards resolution.”  In discussing the February 2021 hearing (the hearing where the court said it had properly noticed sanctions itself), the court said there could be no doubt it was “intently evaluating and addressing any and all issues, without bias.”[5]

The court addressed the June 2021 hearing, remarking it had started well, and the sanctions “already noticed . . . were likely to move downward” as the parties were on the verge of ending the case.  Then, in the court’s view, Mother “without good cause” asked to limit video interactions between Father and Minor to Zoom so that she could record them, a request the court deemed “alarming, outrageous, unbelievable, tone deaf, counterproductive, and/or inconsistent with Family Code 271.”  The court stated it “cautiously began to indicate the problem with her request” at which point Mother’s attorney interrupted “in a rude and abrupt manner” and accused the court of bias.  The family court also remarked upon the demeanor of Mother and her attorney at the hearing, stating that at one point the court said “the parties should remain calm until the record is complete.”

The court opined it was clear “that the court was exactly correct in discerning the mindset that was inconsistent with Family Code 3040” and found “the court’s initial concerns have continued to permeate the entirety of the litigation.”  The court sanctioned Mother in the amount of $10,000 and separately sanctioned her attorney Hill as well, also in the amount of $10,000.

1. DISCUSSION

As to Hill, the family court’s sanctions award is obviously wrong: Section 271 permits imposing sanctions only on a party, not a party’s attorney, and the sanctions award against Hill is therefore improper.  As against Mother, the sanctions award is error too, even if a marginally less obvious one.  There is a question as to whether section 271 even authorizes a family court to issue sanctions on its own motion,[6] but we need not decide that issue because the conduct relied on by the family court to impose sanctions here, even considered in the aggregate, does not rise to the level of meriting sanctions.  The family court abused its discretion in concluding otherwise.

1. Family Code Section 271

“Section 271 provides that a family court may impose an award of attorney fees and costs ‘in the nature of a sanction’ where the conduct of a party or attorney ‘frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.’  (§ 271, subd. (a).)”  (In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1316.)  “Expressed another way, section 271 vests family law courts with an additional means with which to enforce this state’s public policy of promoting settlement of family law litigation, while reducing its costs through mutual cooperation of clients and their counsel.”  (Id. at 1318.)  “We review an award of attorney fees and costs under section 271 for abuse of discretion.”  (In re Marriage of Fong (2011) 193 Cal.App.4th 278, 291.)

1. The Family Court Erred by Sanctioning Mother’s Attorney

Section 271, subdivision (c) provides that “[a]n award of attorney’s fees and costs as a sanction pursuant to this section is payable only from the property or income of the party against whom the sanction is imposed, except that the award may be against the sanctioned party’s share of the community property.”  (§ 271, subd. (c), italics added.)  Similarly, section 271, subdivision (b) provides sanctions shall be imposed “only after notice to the party against whom the sanction is proposed to be imposed and opportunity for that party to be heard.”  (§ 271, subd. (b); italics added.)

As should be clear from the text of the statute and ample precedent, the provisions of section 271 do not provide for sanctions to be imposed on counsel for a party.  (E.g., Burkle v. Burkle (2006) 144 Cal.App.4th 387, 403, fn. 7 [sanctions under section 271 may only be imposed on a party, not an attorney]; Orange County Dept. of Child Support Services v. Superior Court (2005) 129 Cal.App.4th 798, 804 [sanctions under section 271 “can be imposed only against a party”]; see also Shenefield v. Shenefield (2022) 75 Cal.App.5th 619, 629 [including attorneys in sanctions provisions under section 271 would be redundant because attorneys are subject to sanctions for such behavior under Code of Civil Procedure section 128.5].)

The only ground on which the family court here made its sanctions order was section 271.  Because an attorney may not be ordered to pay a sanction under that statute, the family court’s order compelling Hill to pay $10,000 in sanctions was improper and must be reversed.

1. Sanctions Were Not Warranted Against Mother Either

The family court’s final recitation of the grounds for its award of sanctions included: (1) Mother’s early declarations in the case; (2) Mother’s section 170.1 motion to disqualify the judge for bias; (3) Mother’s proposed judgment; and (4) Mother’s request that Father’s video calls with Minor take place on Zoom only.  Threaded throughout the court’s recitation were (1) the court’s characterizations of Mother’s requests as “entitled,” “controlling,” and “overreaching,” and (2) its own umbrage at being accused of bias and being the subject of a disqualification motion.  Individually or collectively, this is not litigation behavior that a judge, staying within the bounds of reason, could conclude merited sanctions at all—much less a $20,000 sanctions award (if we count the improper amount assessed against counsel too).  (See generally Goodman v. Lozano (2010) 47 Cal.4th 1327, 1339 [“‘“The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason”’”].)

The family court’s discussion of the grounds for its sanctions order referenced what it called Mother’s controlling “mindset.”  Yet section 271 provides for sanctions where the conduct of a party or attorney frustrates the policy of the law to promote settlement.  The record indicates that, in sanctioning Mother for the requests she made in her early declaration and for requesting video calls take place on Zoom, the court was principally sanctioning Mother not for taking actions that frustrated settlement efforts but for taking litigation positions with which the court disagreed.[7]  That is improper.

Mother’s motion to seek disqualification of the family court judge and her objection to perceived bias again at the February 2021 hearing were not sanctionable either.  The family court itself had it right when it stated during an earlier hearing that “Petitioner has the right to believe I was biased.  She always has that right, and I can’t sanction her for that.”  But the record reveals the court was unable to hold to that standard and did what it said it could not by improperly relying on Mother’s disqualification motion and renewed objection to impose sanctions.[8]

With these grounds for sanctions appropriately put aside, that leaves only Mother’s filing of a proposed judgment with errors.  That cannot justify the sanctions award here, which is infected with other inappropriate considerations that we have detailed.  Further, the particular errors in the proposed judgment were not so significant as to merit sanctions anyway.

DISPOSITION

The family court’s order is reversed.  Appellants shall bear their own costs on appeal.

CERTIFIED FOR PUBLICATION

BAKER, Acting P. J.

We concur:

MOOR, J.

KIM, J.

[1]         Undesignated statutory references that follow are to the Family Code.

[2]         Specifically, Father objected the proposed judgment: (1) did not specify the child custody and support orders were “Non-Montenegro”; (2) did not include the date on which Mother’s “tie-breaking authority” would end; (3) misstated aspects of temporary visitation ordered by the court; (4) did not specify the parties would share joint legal custody; (5) misstated the child support amount by $70; (6) stated additional child support had been ordered when the court had not ordered additional support; and (7) included an incorrect child support calculation summary.  Counsel for Mother would later explain that aspects of the support amounts in the proposed judgment were incorrect because of an inability to obtain information from Father.

[3]         During the same hearing, the court referred to Father’s request for attorney fees as “redundant.”  The minute order for the hearing recites, “Both sides are noticed as to sanctions.”

[4]         The minute order for the hearing states, “[t]he Court finds that petitioner and petitioner’s counsel are subject to sanctions” and continued the issue of sanctions to the next court date.

[5]         In the course of bristling at what it characterized as suggestions from Mother and Hill that the court was “engaging in some quest to favor fathers over mothers,” the court pointed to what it described as “extremely soft, mother-friendly, pendente lite orders” that it made at the initial hearing in the case.

[6]         Compare § 271, subd. (a) [“In order to obtain an award under this section, the party requesting an award of attorney’s fees and costs is not required to demonstrate any financial need for the award”], italics added with Code Civ. Proc., § 128.5, subd. (c) [expenses may be imposed pursuant to section “on the court’s own motion”]; Code Civ. Proc., § 128.7, subd. (c)(2) [court may enter order describing sanctionable conduct “[o]n its own motion”]; Code Civ. Proc., § 177.5 [court may impose sanctions under section “on the court’s own motion”].

[7]         As to the matter of Zoom recording, the family court itself had previously encouraged the parties to record each other (when participating in physical custody exchanges—to avoid disputes about what occurred).

[8]         The best that can be said for the family court’s reliance on the disqualification motion as grounds for sanctions is that the court believed what it thought was a procedural defect in the motion (purported untimeliness) was fair game even if the substance was not.  There are several problems with that, however.  One, the family court also cited counsel’s renewal of a bias objection during the June 2021 hearing as reason for sanctions, and there was undisputedly no timeliness problem with that objection.  Two, one cannot read this appellate record without coming away with the impression that the family court was just miffed about being accused of bias.  On a personal level, that is understandable.  But exercise of the judicial function requires more, and the mere accusation of bias here is not reason for a five-figure sanction—or any sanction, for that matter.  Three, the filing of a motion is generally not sanctionable under section 271 unless it is “so devoid of merit that no reasonable person would have pursued it.”  (In re Marriage of Abrams (2003) 105 Cal.App.4th 979, 991.)  Procedurally, the motion was not obviously untimely in light of Mother’s retention of counsel and the date on which the transcript of the pertinent hearing was received.  Substantively, Mother’s motion to disqualify the judge was not utterly devoid of merit either.  A non-frivolous argument could be made that the family court’s statements at the December 2019 hearing suggested the court was allowing an apparent view about how mothers generally act (the court stated its remarks during the hearing would “alert mothers” to the law in the state of California) to color its view of Mother’s then-self-represented litigation of her case.

cited https://law.justia.com/cases/california/court-of-appeal/2022/b316280.html#:~:text=The%20family%20court%20judge%20ordered%20appellants%20Annaquite%20Featherstone%20(Mother)%20and,or%20appearing%20to%20be%20biased).

Family Code 2030 is one of the most important California family laws we have

Family Code 2030 is intended to bring fairness to the California divorce process. It is designed to ensure that both the husband and wife have equal access to the family law courts through legal representation. Family Code 2030 is also one of the most misunderstood and misused code sections.

This guide on Family Code 2030 will help spouses better understand this code section and how it is used in divorce, legal separation and annulment matters.

This guide is not legal advice. It is not intended to apply to your specific situation. Our divorce attorneys offer an affordable strategy session to discuss your situation.

1. What does Family Code 2030 (a) through (d) state about attorney’s fees?

We are not going to copy and paste Family Code 2030’s entire text here. We put the entire code section at the end of this guide if you want to read every word of it. Instead, we summarize its main points.

A. Access to representation and preservation of each spouse’s rights is a must.

Family Code 2030 applies to divorce, annulment or legal separation cases and any post judgment family law matter related to those three types of actions. The code states the Family Court must:

1. Ensure that each party has access to legal representation;

2. Preserve each party’s rights by ordering whatever amount is reasonably necessary for attorney’s fees and for the cost of maintaining or defending the pending action; and

3. Make these orders based on the income and needs of the parties.

B. The Court must give a statement of reasons for its decision.

Family Code 2030 further states the Family Court must state its reasons (“findings”) on the following issues when it rules on such an attorney fee request:

1. Whether an attorney fee and cost award is appropriate;

2. Whether the parties have a disparity in access to funds to hire an attorney; and

3. Whether one party is able to pay for legal representation of both parties.

Family Code 2030 states if the court makes findings that show this disparity and ability to pay, the court must make an attorney fee and costs order.

C. Self represented spouses have rights.

Family Code 2030 allows a self represented party who does not have the financial ability to hire an attorney to ask the court to order the other party to pay for the fees. The Family Court can make that order if the other party has the financial ability to pay a reasonable amount. This payment is intended to allow the self represented party to hire a lawyer “in a timely manner” before the proceeding goes forward.

D. Fees can be awarded for services before or after the case starts.

Family Code 2030 allows the Family Court to award attorney fees and costs for legal services rendered before or after the case commences.

E. The Family Court can increase or modify the initial attorney fee award.

Family Code 2030 also states the Family Court must augment (increase) or modify the initial attorney fee award it made. The Court can do this if reasonably necessary to prosecute or defend the proceeding, any related proceeding and even after an appeal’s conclusion.

F. Sometimes, the Family Court can award fees against a non-party.

Finally, Family Code 2030 allows the Family Court to order fees against a party “who is not the spouse of another party to the proceeding.” This amount however is limited to the amount “reasonably necessary to maintain or defend the action on the issues relating to that party.”

2. How do Family Code sections 2031 and 2032 relate to a Family Code 2030 attorney fee request?

Family Code 2031 and 2032 work together with Family Code 2030. Think of them as a set. Again, we are not going to just copy and paste the entire code section here. If you want to read the entire text of Family Code 2031 and 2032, we placed it at the end of this guide.

Family Code 2031

Family Code 2031 states a request for a temporary attorney fee and cost order must be made by motion on notice or by an order to show cause. The California legislature hasn’t gotten around to updating this statute because, now days, motions and orders to show cause for attorney fees have been replaced with something called a “request for order.” It’s the same thing under a different name and different forms.

Family Code 2031 allows this request for:

1. Making an attorney fee or costs request;
2. Augmenting (increasing) an attorney fee or costs award; or
3. Modifying an attorney fee or costs award.

Family Code 2031 states the Family Court must make the ruling “within 15 days of the hearing on the motion or order to show cause.”

Family Code 2031 even allows such a request to be made orally, in open court, at the following times:

1. “At the time of the hearing of the cause on the merits”; or
2. “At any time before entry of judgment against a party whose default has been entered pursuant to Section 585 or 586 of the Code of Civil Procedure.”

A similar 15 day rule applies that states the Family Court must rule “on any motion made pursuant to this subdivision within 15 days and prior to the entry of any judgment.”

Family Code 2032

For some reason, the California legislature decided to enact Family Code 2032 as a separate code section from Family Code 2030 and 2031 and add the terms summarized below. Family Code 2032 is important to understanding 2030 and 2031.

Family Code 2032 states the attorney fee and cost award should be “just and reasonable under the relative circumstances of the respective parties.” Family Code 2032 explains this through the following language: “The need for the award to enable each party, to the extent practical, to have sufficient financial resources to present the party’s case adequately, taking into consideration, to the extent relevant, the circumstances of the respective parties described in Section 4320.” Family Code 4320 deals with spousal support. We will discuss its relevance to an attorney fee request later.

Family Code 2032 states just because the person requesting attorney fees and costs has the “resources” to pay his or her own attorney’s fees does not automatically mean he or she won’t get an award for it from his or her spouse. The code states that is just one factor. The Family Court’s job is to apportion the litigation’s overall cost “equitably” between the parties.

Family Code 2032 also states the court can order attorney fees and costs from “any type of property, whether community property or separate property, principal or income.” That is critical and we discuss this more below.

Family Code 2032 has specific provisions regarding complex cases.

Family Code 2032 also states that either party can, before the ultimate hearing, request the court “make a finding that the case involves complex or substantial issues of fact or law related to property rights, visitation, custody, or support.” The code states this must be made by a noticed motion. That means a request for order has to be filed. If the court agrees, it can then “determine the appropriate, equitable allocation of attorney’s fees, court costs, expert fees, and consultant fees between the parties.” The Family Court has a lot of power here. It can order “the allocation of separate or community assets, security against these assets, and for payments from income or anticipated income of either party for the purpose described in this subdivision and for the benefit of one or both parties.”

Family Code 2032 even allows the Family Court to appoint a referee per Code of Civil Procedure 639 “to oversee the allocation of fees and costs.” A referee is usually a retired judge or experienced attorney who is assigned to oversee certain parts of a case and report back to the court.

Let’s break down some of the terms Family Code 2030 uses, so we can better understand them.

3. What does Family Code 2030 mean by each party having access to legal representation?

Access to legal representation means access to a lawyer. Family Code 2030 requires this access to take place. Divorce and family law cases are not supposed to be a war of attrition such that one spouse who has significantly more income or access to money can beat up the other spouse in the litigation process.

4. How does Family Code 2030 preserve each party’s rights by ordering attorney fees and costs?

Access to a lawyer is supposed to level the playing field. It is a rare situation that a self represented spouse will have the same knowledge and ability to advocate on his or her own behalf on the same level as a highly skilled family law attorney. Self represented spouses don’t know the in’s and out’s of the California Family Code or the rules of procedure (there are lawyers we have gone up against who call themselves family law attorneys who don’t even have such knowledge). With experienced and skilled representation, California Family Code 2030 better preserves a spouse’s rights.

5. What is considered “reasonably necessary” for attorney’s fees and costs?

Family Code 2030 is not intended as a blank check to attorneys. The attorney fees and costs must be reasonably necessary to litigate the issues in the divorce, legal separation or annulment case.

6. What does Family Code 2030 mean by disparity in access to funds to hire an attorney?

The word disparity is important and many times forgotten in Family Code 2030 attorney fee requests. This also relates to what we wrote about Family Code 2032 that just because a spouse who requests attorney fees and costs has the resources to pay his or her own attorney’s fees does not mean he or she should not get an award for fees and costs against his or her spouse.

California appellate cases have held that the difference between one spouse’s ability to pay versus another spouse’s ability to pay is an important part of the analysis. One case called Marriage of Sorge stated that just because the wife could pay her own attorney’s fees didn’t mean the husband should escape paying a contribution when the wife’s liquid assets were over $7 million and the husband’s were $64 million. Understand the analysis? Husband had far more access than the wife did even though wife could pay her own fees.

7. Why do Family Code 2030 – 2032 reference Family Code 4320, which deals with spousal support?

First, it is important to understand that Family Code 4320 is only considered “to the extent relevant.” That means if certain parts of Family Code 4320 don’t matter to an individual case, those parts may be disregarded.

Second, we write about Family Code 4320 in detail in our California spousal support guide. Please check it out as it is a comprehensive overview of spousal support.

Family Code 4320 is the measure of the marital standard of living. Understanding the marital standard of living in a divorce or legal separation case helps gauge spousal support and also helps gauge the money available to pay toward fees after payment of support. This is especially important when the source of attorney’s fees may be a spouse’s income. There is only so much money to go around.

Family Code 4320 also helps the Family Court better understand the estate being divided, which includes the assets and debts. How much of the assets are liquid and available versus tied up in real estate or other sources that are not easily accessible? How much debt exists against those assets? Considerations like this give the Family Court the big picture and allow it to look at available sources for attorney’s fees.

8. Why is a Family Code 2030 – 2032 request important for the spouse who wants his or her attorney’s fees paid by the other spouse?

Money is power and if one spouse has significantly more access to money than the other spouse, the wealthier spouse can bully the other spouse. This can happen in the litigation process and leave the less wealthy spouse vulnerable. Family Code 2030 – 2032 is intended as the equalizer. It gives that spouse the ability to request and hopefully obtain attorney’s fees and costs so the family law case can proceed forward fairly and reasonably with both sides properly represented.

9. How does the spouse requesting fees per Family Code 2030 – 2032 bring such a request to the court’s attention?

Family Code 2031 lays out options for an oral request. While that does happen, it is in our experience the exception and not the norm. Self represented spouses should definitely use this method if they have an immediate need for legal representation and don’t have immediate access to money to hire an attorney.

The more common method is to file a request for order. The request for order is a set of forms and one or more declarations under penalty of perjury. Once property filed, the Family Court will assign a hearing date, time and department. That request for order must then be served on the other spouse or lawyer.

10. Does the Family Court really order all of a requesting spouse’s attorney’s fees and costs to be paid?

The Family Court has the discretion to order reasonably necessary attorney’s fees and costs. Can that be all of the requesting spouse’s fees? Yes. Can it be some or very little? Yes. It all depends on the case’s specific facts. Lazy, shot-gun approaches to attorney fee requests usually fail because the requesting spouse doesn’t give the Family Court enough information on issues such as:

1. The exact amount of attorney’s fees sought,
2. The amount of costs and expenses sought, such as for expert witnesses as one example,
3. The specific factual reasons for the attorney fee request including the amount of time already expended on the matter and the amount of future time expected to be expended?
4. An explanation of why the fees requested and the time estimated is reasonable.

11. From what sources do Family Code 2030 – 2032 allow attorney’s fees to be paid?

Family Code 2030 and 2032 taken together allow for fees to be paid from community property, separate property, principal or earnings. In short, it can be paid from nearly everything. There is one exception. There is case law that suggests an attorney fee award pursuant to Family Code 2030 may not ordered against a retirement plan. Does that apply to every situation? That is unclear and an attorney’s advice is important.

12. How do Family Code 2030 – 2032 affect a spouse’s agreement with his or her lawyer?

Family Code 2030 orders are intended to eliminate disparity. However, they are not intended to create a windfall. The spouse requesting attorney fees typically has a retainer contract with his or her lawyer. The attorney fee award, if one is made, either pays the spouse or the attorney for the fees incurred or expected to be incurred.

13. How does the spouse opposing an attorney fee request per Family Code 2030 – 2032 explain his or her opposition?

Opposing an attorney fee request made per Family Code 2030-2032 requires diligence. Not wanting to pay is irrelevant. What matters is showing the court the requesting spouse does not have a need, there is no disparity or the spouse opposing it doesn’t have the ability to pay. The opposing spouse can also show the amount requested is unreasonable or unnecessary. These are only some of the proper reasons to oppose a Family Code 2030 request.

The paperwork that comprises the opposition includes certain judicial council forms, the opposing spouse’s declaration and generally a declaration from that spouse’s attorney. An attorney’s assistance and/or representation is important.

14. What are some tips for a spouse requesting attorney’s fees per Family Code 2030 – 2032?

Here are some general tips for the spouse that makes the Family Code 2030 request:

1. Hire an experienced family law attorney to make the request on your behalf. It can make a significant difference when the paperwork is done correctly.
2. Don’t overreach or understate the need. Ask for a reasonable amount, not high and not low.
3. Your declaration should go into your need, the disparity and the other spouse’s ability to pay.
4. If you are also receiving support (child support, spousal support or both), factor that into the net disposable income equation. You may tell the Family Court that you want attorney’s fees to be paid from your spouse’s income. But does your spouse also pay you support from that same income? Have you figured out what your net disposable income is compared to your spouse when you factor in support? Is it still very different? Or close to the same?
5. Don’t assume income is the only source. Property can be sold to pay for attorney’s fees. Accounts can be accessed. Stocks can be sold. Home equity lines of credit can be used. These are just a few of many examples.

15. What are some tips for a spouse opposing an attorney fee request per Family Code 2030 – 2032?

Here are some general tips for the spouse that opposes the Family Code 2030 request:

1. Similar to our tip, above, please hire an experienced family law attorney.
2. If there is a clear disparity in income or access to funds and it is likely the family court will order fees against you, consider making a reasonable offer to avoid spending thousands of dollars in opposing the request.
3. If your spouse’s fees are procedurally or substantively defective, strategize carefully with your lawyer as to how much of that you point out in your opposition paperwork versus bringing it up at the hearing. This depends in part on the California county your case is pending and the style of the court and judges there.
4. If there is no source from which attorney’s fees can be paid, point that out clearly in your opposition.
5. If you are paying spousal and/or child support then do the math as to why your net disposable income is not that different from that of your spouse.
6. If you are not paying spousal and/or child support but such a request is pending or likely coming, point that out.
7. Just telling the court you cannot afford to pay your spouse’s attorney fees may not be enough unless you have evidentiary support. Show the Family Court in your paperwork and at the hearing with proper, admissible evidence, why your position is actually fact and why that disparity or access your spouse claims exists actually does not. Be prepared to explain to the court how you are paying your own attorney’s fees.

Did you enjoy what you just read?

We hope you enjoyed this guide on Family Code 2030.

If you have a divorce, legal separation or annulment matter, you may contact us for an affordable strategy session. While this article focused on attorney’s fees per Family Code 2030 through 2032, there are other ways to obtain attorney’s fees in a divorce. Check out our article on Family Code 271 as another example.

And finally, as promised earlier in this guide, below is the full text of Family Code 2030, 2031 and 2032 as of the date we write this guide in 2016. Family Code sections may get amended from time to time so do not assume what you read below is the updated code section. This article is current as of the date it was written.

The full text of Family Code 2030, 2031 and 2032

Full text of Family Code 2030:

2030. (a) (1) In a proceeding for dissolution of marriage, nullity of marriage, or legal separation of the parties, and in any proceeding subsequent to entry of a related judgment, the court shall ensure that each party has access to legal representation, including access early in the proceedings, to preserve each party’s rights by ordering, if necessary based on the income and needs assessments, one party, except a governmental entity, to pay to the other party, or to the other party’s attorney, whatever amount is reasonably necessary for attorney’s fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding.

(2) When a request for attorney’s fees and costs is made, the court shall make findings on whether an award of attorney’s fees and costs under this section is appropriate, whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for legal representation of both parties. If the findings demonstrate disparity in access and ability to pay, the court shall make an order awarding attorney’s fees and costs. A party who lacks the financial ability to hire an attorney may request, as an in pro per litigant, that the court order the other party, if that other party has the financial ability, to pay a reasonable amount to allow the unrepresented party to retain an attorney in a timely manner before proceedings in the matter go forward.

(b) Attorney’s fees and costs within this section may be awarded for legal services rendered or costs incurred before or after the commencement of the proceeding.

(c) The court shall augment or modify the original award for attorney’s fees and costs as may be reasonably necessary for the prosecution or defense of the proceeding, or any proceeding related thereto, including after any appeal has been concluded.

(d) Any order requiring a party who is not the spouse of another party to the proceeding to pay attorney’s fees or costs shall be limited to an amount reasonably necessary to maintain or defend the action on the issues relating to that party.

(e) The Judicial Council shall, by January 1, 2012, adopt a statewide rule of court to implement this section and develop a form for the information that shall be submitted to the court to obtain an award of attorney’s fees under this section.

Full text of Family Code 2031

2031. (a) (1) Except as provided in subdivision (b), during the pendency of a proceeding for dissolution of marriage, for nullity of marriage, for legal separation of the parties, or any proceeding subsequent to entry of a related judgment, an application for a temporary order making, augmenting, or modifying an award of attorney’s fees, including a reasonable retainer to hire an attorney, or costs or both shall be made by motion on notice or by an order to show cause.

(2) The court shall rule on an application within 15 days of the hearing on the motion or order to show cause.

(b) An order described in subdivision (a) may be made without notice by an oral motion in open court at either of the following times:

(1) At the time of the hearing of the cause on the merits.

(2) At any time before entry of judgment against a party whose default has been entered pursuant to Section 585 or 586 of the Code of Civil Procedure. The court shall rule on any motion made pursuant to this subdivision within 15 days and prior to the entry of any judgment.

Full Text of Family Code 2032

2032. (a) The court may make an award of attorney’s fees and costs under Section 2030 or 2031 where the making of the award, and the amount of the award, are just and reasonable under the relative circumstances of the respective parties.

(b) In determining what is just and reasonable under the relative circumstances, the court shall take into consideration the need for the award to enable each party, to the extent practical, to have sufficient financial resources to present the party’s case adequately, taking into consideration, to the extent relevant, the circumstances of the respective parties described in Section 4320. The fact that the party requesting an award of attorney’s fees and costs has resources from which the party could pay the party’s own attorney’s fees and costs is not itself a bar to an order that the other party pay part or all of the fees and costs requested. Financial resources are only one factor for the court to consider in determining how to apportion the overall cost of the litigation equitably between the parties under their relative circumstances.

(c) The court may order payment of an award of attorney’s fees and costs from any type of property, whether community or separate, principal or income.

(d) Either party may, at any time before the hearing of the cause on the merits, on noticed motion, request the court to make a finding that the case involves complex or substantial issues of fact or law related to property rights, visitation, custody, or support. Upon that finding, the court may in its discretion determine the appropriate, equitable allocation of attorney’s fees, court costs, expert fees, and consultant fees between the parties. The court order may provide for the allocation of separate or community assets, security against these assets, and for payments from income or anticipated income of either party for the purpose described in this subdivision and for the benefit of one or both parties. Payments shall be authorized only on agreement of the parties or, in the absence thereof, by court order. The court may order that a referee be appointed pursuant to Section 639 of the Code of Civil Procedure to oversee the allocation of fees and costs.

cited https://farzadlaw.com/california-divorce/family-code-2030-attorney-fee-request