California Courts of Appeal,
Family
Dec. 2, 2015
Ruling dishes on Family Code fee awards
A recent appellate ruling wrestled with whether a trial court must differentiate between fee awards under the cost-shifting provisions of the Family Code and awards under the sanctions section.
Claudia Ribet
Of Counsel
California Appellate Law Group LLP
appellate law (certified) and family law (certified)
811 Wilshire Blvd 17th Floor
Los Angeles , California 90017
Phone: (213) 878-0404
Antioch School of Law
California Appellate Law Group LLP is an appellate boutique with offices in San Francisco and Los Angeles. Claudia is one of only three attorneys in California certified by the State Bar as a specialist in both family law and appellate law. Find out more about Claudia and the California Appellate Law Group LLP at www.calapplaw.com. Appellate Zealots is a monthly column on recent appellate decisions and appellate issues written by the attorneys of the California Appellate Law Group LLP.
Attachments
In the case of In re Marriage of Smith, 2015 DJDAR 12581 (Nov. 20, 2015), the 4th District Court of Appeal decided whether a trial court must make an explicit differentiation between the attorney fees sums awarded pursuant to the family law cost-shifting provision (Family Code Section 2030) with those awarded under the sanctions section (Family Code Section 271). The answer to that question is no, at least on the facts presented in this case.
The court also decided whether, in making a fee award, a trial court may consider as income funds repetitively paid by a party's father as an "advance against the party's inheritance." The answer to that question is yes.
Mark and Kierstin Smith dissolved their marriage in 2002. The two remained in litigation regarding child custody and support, which expanded to involve Cindy, Mark's new wife. Following post-judgment proceedings concerning modification of child support, attorney fees and sanctions, the trial court awarded substantial fees both to Mark and Cindy under both Family Code Sections 2030 (to level the playing field) and 271 (as sanctions).
The trial court said, "[Kierstin] and her counsels' zealous advocacy crossed the line and became unreasonable, unduly burdensome, and at times exercised in bad faith." It found "that the underlying case was not complicated but was made complicated by the overzealous litigation on [her] counsels' part and [her] complete abandonment of the litigation process." The proceedings were "a morass of litigation, the primary purpose of which was to ruin [Cindy and Mark] financially," the court said.
It appeared to the court that Kierstin was unconcerned about the level of fees because her father was committed to paying them whatever the amount. She was due to inherit $6 million upon the death of her father, and the amounts given to her for fees and cost were a loan against her inheritance. Her father even testified that he intended to pay all of Kierstin's fees.
Mark and Cindy, by contrast, had no savings or other liquidity that would enable them to finance the litigation on the same playing field as Kierstin. At base, the trial court believed that excluding father's substantial funds from consideration would vitiate the primary purposes of Sections 2030 et seq. to prevent one party from being able to "litigate the opposing party out of the case" by taking advantage of their disparate financial circumstances.
As to whether the trial court needed to segregate which code section it was allocating fees pursuant to, the Court of Appeal said an allocation was unnecessary because the trial court's order was fairly read to indicate the amounts awarded would be appropriate, in their entirety, under either statute. This conclusion may not follow in other cases, so litigants beware.
The Court of Appeal held also that in determining the parties' relative circumstances the trial court properly considered the funds that Kierstin's father paid to her attorneys on her behalf. It provided guidance for whether such sums should be considered:
First, in analogous cases, the courts have held where a party receives recurring gifts of money, the trial court has discretion to consider that money as income. In re Marriage of Alter, 171 Cal. App. 4th 718, 722-23 (2009),
Second, even if characterized as a loan, an advance against a party's share of expected inheritance is properly treated as a gift. In re Marriage of Williamson, 226 Cal. App. 4th 1303, 1313-14 (2014).
Finally, the Court of Appeal contrasted the case before it with In re Marriage of Schulze, 60 Cal. App. 4th 519 (1997), in which father's parent's lent him $8,000 to pay his own fees because he has no liquid savings or assets. In that case, the trial court's order that the father pay $7,500 forthwith to his former wife's attorneys based on the presumption that he can get it from his parents was erroneous, stating that "charity, once extended, is still not an entitlement."
The take-away is that a single, relatively small, one-time loan must be distinguished from the recurrent, regular gifts totaling hundreds of thousands of dollars.
Submit your own column for publication to Diana Bosetti
For reprint rights or to order a copy of your photo:
Email
Jeremy_Ellis@dailyjournal.com
for prices.
Direct dial: 213-229-5424
Send a letter to the editor:
Email: letters@dailyjournal.com