A Possibly Easier Way to Get the Other Side to Pay for Attorney Fees

Family Code section 2030 requires judges to make sure each party in a divorce case has equal access to legal representation.  Usually, section 2030 fees will be awarded if, among other things, there is a significant disparity between the income of each party.

But in the final analysis, appeals courts will only reverse a trial judge’s decision on attorney fees if there is an abuse of discretion.  This means that historically, a judge’s decision to award or not to award attorney fees (or the amount of attorney fee awarded) is up to the judge.  In other words, absent something unusual, the judge can do whatever he or she wants.  That’s why he or she is the judge.

But a new case, from Kern County, has tightened the standards regarding attorney fee awards.  The Court of Appeal that covers that area of California says that the findings that a judge is supposed to make in deciding the issue of attorney fees must be stated on the record, meaning the judge has to state the findings out loud in her or his voice or write it down in the decision.  It is not enough for the judge to simply think about the findings and then make a decision.

What findings are these?  There are three of them:  one, whether an award of attorney’s fees and costs (under section 2030) is appropriate;  two, whether there is a disparity in access to funds to retain counsel, and three; whether one party is able to pay for the legal representation of both parties.

If the judge fails to verbally state these findings, that’s ground for an appeal, but, like most appeals, the person doing the appealing still has to show prejudice.  That is, he or she must show that had the judge made the findings instead of remaining silent, the outcome would have been different.

This may seem like a very technical discussion, but the appeals court up in Kern County wanted to make a major statement:  judges can no longer do whatever they want to do on the issue of attorney fees.  In the words of the justices, “we conclude the ‘broad discretion’ referred to in judicial decisions discussing the version of 2030 predating the 2004 and 2010 amendments no longer exists”.  The justices also held that family law judges must actually follow the provision in section 2030 that says, “[t]he 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”.  Thus, it was error for the trial judge to conclude, as he did

[T]he Court notes that both parties obtained a significant amount of money from the sale of the family residence, each receiving approximately $300,000.  Both parties also received a significant distribution of funds from the parties’ 401k plan.  Under the circumstances, there is no demonstrated need for an order that [the husband] pay for her attorney fees.  Both parties have sufficient resources to pay for their own attorney’s fees and costs.

The justices found that the trial judge “committed legal error by failing to comply with two mandatory provisions of section 2030, subdivision (a)(2)”.  Specifically, the judge made no findings on whether there was a disparity in access to funds to retain counsel; and the court failed to make an ability-to-pay analysis.

This was critical because the wife had stopped working in 1996.  The husband, however, in 2014, earned $84,236.00 in wage income.  He also earned S corporation income of $588,289.00.

Therefore, an award of attorney fees and costs was mandatory, even though the wife had earlier in the case been awarded $15,000.00 in fees (before trial).  She apparently wanted an additional $115,134.65 in attorney fees for the trial itself.  But she got nothing; appealed; and won.  Now she will be getting some amount of attorney fees because the justices said such an award was “mandatory” and now the award will have to take into account her attorney fees in pursuing the appeal as well.

But this doesn’t mean that any person unhappy with a court’s frugal stance on attorney fees will win an appeal.  Most parties do not have the type of income disparity that these folks had.  If it’s a close call, the judge’s decision is probably going to be upheld on appeal.

The Court’s decision on attorney fees, along with some other parts of the 61-page opinion (but not all of the opinion) has been certified for publication, meaning it must be followed by judges throughout California and may be cited as precedent by judges and lawyers throughout the State.

The vote of the Court of Appeal was 3-0.

The case, entitled In re Marriage of Morton, was initially decided by the Hon. Stephen D. Schuett.  The appeal was written by the Hon. Donald R. Franson Jr., who was joined by the acting presiding judge, the Hon. Jennifer Detjen, and by Justice M. Bruce Smith.