Successfully appealing a judge’s decision is difficult here in San Diego and throughout the nation. After all, the appealing party does not get to retry the lower court case and hope for a better outcome. Instead, it must be shown –usually from the transcript– that the trial court judge made a mistake. It is not enough for the Court of Appeal to conclude that had it been deciding the case at the trial level, it would have decided differently.
Having said all of that, a neurosurgeon recently was able to win an appeal in a family law case over the issue of attorney fees. Interesting, the neurosurgeon did this without having a lawyer.
The case involved a $5,000.00 attorney fee award against the doctor in a decision filed today in an unpublished case from Division One of California’s Fourth District Court of Appeal, in San Diego. (IRMO Meyer, Ct. of Appeal no. D481420.)
The fee award was based on Family Code section 2030, which requires a court in a divorce case to ensure that each party has access to legal representation by ordering, based on the incomes of each party, one party to pay to the other party whatever amount is reasonably necessary for attorney’s fees. In other words, if one party makes a lot more than the other party, the Court is usually supposed to make a fee award.
In this case, however, the Court of Appeal said that the “court errred in awarding (Mother) attorney fees because there is no evidence in the record whatsoever proffered by (Father) –including, by way of example only, billing records or statements and/or a sworn declaration from counsel– showing the work done and time spent by her counsel in opposing (Father)”. Because the appeals court concluded that there was no “substantial evidence” to support the order, it had to be reversed. Also figuring in the appellate court’s decision was the fact that the mother’s attorney was only asking for$3,000.00 in fees in the first place, yet the final decision was for an extra $2,000.00.
The Court of Appeal, however, upheld a separate decision of the trial court with respect to a child support obligation from the father to the mother.