One thing that makes family law different from other areas of civil litigation is the ability of the judge to order one side to pay attorney fees for the other side simply because there is a disparity in access to funds. In plain English, a person with more money should not be at an advantage because he or she can more easily afford an attorney than the other side.
In addition, besides ordering fees based on need and ability (under the authority of Family Code section 2030), a California family law judge may also order fees if a party (or her or his attorney) frustrates the goal of settlement or conducts litigation in an unreasonable fashion. This is based on Family Code section 271.
In the recent case of Marriage of Smith, the judge ordered a woman to pay both — need based fees and fees based on unreasonable behavior. Writing for a unanimous three-justice panel, Justice Thomas Hollenhorst upheld the decision of the trial judge to make the woman pay $124,352.00 to the former husband’s new wife and $151,967.00 to the former husband himself. It is not clear what portion of this amount was attributable to need and ability and what portion was attributable to sanctions.
The fee award was made in 2013, which is when the parties, who were already divorced, finished extensive post-judgment litigation that had started in 2008. The divorce itself was in 2002. The judge stated, “[Wife] and her counsels’ zelalous advocacy crossed the line and became unreasonable, unduly burdensome and at times an exercise in bad faith.
“The Court finds that the underlying case was not complicated but was made complicated by the overzealous litigation on (Ex-Wife’s] counsels’ part and (Wife’s) complete abandonment of the litigation process”. The judge also stated that the former wife had “no concern about the level of her attorney fees because her father was committed to paying those fees and costs whatever the amount”. Indeed, the woman’s father had testified that his daughter was due to inherit six (6) million dollars upon his death. The father further testified that he did not expect repayment during his lifetime. He went as far as to say that “he intended on paying all of (Ex-Wife’s) prospective fees that she incurred for her attorneys as well as any attorney fees and/or sanctions that may be ordered against her regardless of the amount” and even fees and costs on appeal. The ex-husband and his wife, meanwhile, were forced to use credit cards to pay for their lawyers.
One of the arguments on appeal was that the trial judge should not have considered payments made by the woman’s father in establishing that she had a greater ability to pay fees than her former spouse. But the justices disagreed, saying that [i]n analogous family law contexts, courts have held that ‘where a party receives recurring gifts of money, the trial court has discretion to consider that money as income. . . . Even if characterized as a loan, an advance against a party’s share of an expected inheritance is property treated as a gift”. The court added that the trial court simply “looked to the economic reality of the situation”. This included evidence that the woman’s father had paid close to $400,000.00 in attorney fees. Even if the father were to suddenly stop paying the fees, it would make no difference; the trial judge was allowed to (though not required to) make the orders that she did.
This case arose out of San Bernardino County, but because the case was certified for publication, it can be cited as precedent throughout California, including here in San Diego. The trial judge was the Hon. Tara Reilly. All three parties — the ex-wife, the ex-husband, and the new wife were represented on appeal by lawyers.