EXPENSES ARE RELEVANT TO ATTORNEY FEE ORDERS IN FAMILY LAW CASES

DONALD F. CONVISER, Certified Family Law Specialist, owner of WARNER CENTER LAW OFFICES in the Woodland Hills section of the San Fernando Valley, serving divorce and family law clients in the courts of Los Angeles and Ventura for over 35 years, offering a free confidential consulation regarding your divorce or family law situation, writes this article to address the relevance of expenses in attorney fee requests, oppositions to attorney fee requests, and attorney fee orders in family law or divorce cases.

In ALAN S. vs. SUPERIOR COURT (MARY T.) (2009) 172 Cal.App.4th 239, the appellate court addressed how courts are to achieve (particularly in low and middle income cases) the legislative goal of assuring "each party has access to legal representation to preserve each party's rights" [FAMILY CODE Section 2030(a)(1)] and the goal that each party, to the extent practical, to have sufficient financial resources to present the party's case adequately. FAMILY CODE Section 2032(b). The court stressed that the purpose of fee orders is parity, as opposed to redistribution of income.

Alan S. challenged attorney fee orders made by the trial court preparatory to a child custody hearing brought by Mary T, his ex-wife [ordering Alan to pay Mary $9,000 in attorney's fees at $300/month], which Alan claimed would deprive him of the ability to afford his own counsel at the custody hearing, and which were made without giving Alan the opportunity to present any testimonial evidence at the attorney-fee hearing.

Three weeks after the attorney fee order, Alan filed a Petition for a Writ of Mandate.

The appellate court reversed the trial court orders, and this article discusses some of the appellate court's reasoning.

The appellate court stated that, of all cases, child custody is perhaps the most time-sensitive (and hence least amenable to an adequate remedy by away of appeal) since time in a child's life can never be recovered. The Appellate Court found the normal (slow) appeal procedure to be inadequate, because of the interrelationship of the attorney fee order and Alan's ability to obtain counsel for the "main event".

The appellate court pointed out that the purpose of FAMILY CODE Section 2030 is not the redistribution of money from the greater income party to the lesser income party, but instead, its purpose is parity: a fair hearing with both sides equally represented.

The court noted that by providing for orders to pay money so that one's adversary can afford an attorney, there is the paradoxical possibility that a court may effectively deprive the paying party of the ability to present his/her own case.

The court addressed MARRIAGE OF KEECH (1999) 75 Cal.App.4th 860, which despite an abuse of discretion standard of review, reversed an attorney and accountant's fee and order for that very reason [in KEECH, the attorney fee order of $500/month would leave him a mere $593/month to live on, after his support payments of $1,468/month and his taxes and rent taking up the balance beyond the $593]. The KEECH appellate court stated that the trial court was required to take into consideration the need for each party, to the extent practical, to have sufficient resources to present the party's case adequately.

The ALAN S appellate court next addressed the EXPENSE side of Income and Expense Declarations, and noted that since expenses are (with very few exceptions [e.g Family Code Section 4071 - Hardship Circumstances & Deductions] irrelevant for child support, it is perhaps too easy for family law judges to dismiss the expenses on the income and expense declaration in other contexts, such as the context of a requested attorney fee order, but to do so is error.

The Court held that Expenses are relevant to attorney fee orders, citing FAMILY CODE Section 2032(b) [addressed hereinabove], taking into consideration, to the extent relevant, the circumstances of the respective parties described in FAMILY CODE Section 4320 [the code section setting forth factors considered in the determination of long-term marriage Spousal Support], including 4320(k) "balance of hardships to each party".

Section 2032(b) further tells courts that: "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."

The court stated that reading section 2032 together with section 4320, one cannot escape the idea that a fee award should be the product of a nuanced process in which the trial court should try to get the "big picture" of the case, i.e., "the relative circumstances of the respective parties" [Section 2032(a)]. Conversely, determination of an attorney fee order is definitely not a truncated process where the trial court simply (a) ascertains which party has the higher nominal income relative to the other, and then (b) massages the fee request of the lesser-income party into some manageable amount that feels like it will pass an abuse of discretion test. The court stated that the record (including the order) must reflect an actual exercise of discretion and a consideration of the statutory factors in the exercise of that discretion. The court found that the trial court took the truncated approach.

The court also stated that FAMILY CODE Section 2030(a) limits fee awards to amounts that are reasonably necessary, and that an award measured summarily by what the applicant has been billed or what his/her attorney is presently owed is an abuse of discretion if it does not reflect consideration of whether the fees allegedly incurred were reasonably necessary.

The court next addressed the Reiflerization of the hearing [the hearing of OSCs and Motions based only on written declarations, per REIFLER v. SUPERIOR COURT (1974) 39 Cal.App.3d 479] and the far more recent ELKINS decision [ELKINS v. SUPERIOR COURT (2007) 41 Cal.4TH 1337, 1369 - addressing live testimony at trials - as opposed to OSCs and Motions], finding that there is much in the ALAN S. case in common with ELKINS, and that just because live testimony may not be automatically required does not mean it may not be an abuse of discretion to refuse it if the peculiar facts of a case reuire it. The court noted that in REIFLER, the appellate court held that reliance upon the local policy rather than an intelligent application of trial court discretion was error, and sent the case back to the trial court to hear oral testimony.

In ALAN S., the appellate court sent the case back to the trial court for a reconsideration of the basic circumstances of the parties per KEECH, for reconsideration of taking live testimony per REIFLER, and for what it called a "re-do", where the trial court can get a bigger picture of the litigation, stating that a fee-shifting order may be an abuse of discretion if the timing or method of the payment obligation puts and unreasonable burden on the obligor in light of his/her own cash-flow situation (support obligations, personal living expenses, and own attorney fees).

The ALAN S. case is an important case for any party to review and cite in any family law or divorce case in which an attorney's fee request is made.