Filed 1/9/18 Marriage of Cueva CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



In re the Marriage of SONYA and FRANCISCO CUEVA.

SONYA CUEVA,

Respondent,

v.

FRANCISCO CUEVA,

Appellant;

SAN DIEGO COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES,

Intervener and Respondent.
D071913


(Super. Ct. No. DS59590)

APPEAL from a judgment of the Superior Court of San Diego County, Esteban Hernandez, Judge. Affirmed.
Leslie L. Abrigo for Appellant.
No appearance for Respondent.
No appearance for Intervener and Respondent.
After a nine-year marriage and five children, Sonya Cueva (Mother) petitioned to dissolve her marriage with Francisco Cueva (Father), and sought support payments and attorney fees. After a hearing, the court ordered Father to pay spousal and child support and child support arrears. The court also ordered Father to pay Mother's estimated attorney fees of $2,000 under Family Code section 2030.
Father challenges only the $2,000 attorney fees award. We determine the court did not abuse its discretion, and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and Father were married in 2007, and separated in September 2016. At the time, their five children were under the age of nine. In November 2016, Mother moved for child support, spousal support, findings as to the family home, and attorney fees. In her supporting declarations, Mother said she resides in the family home with the five children, and that she receives $1,700 in monthly public assistance. Mother said she has been "a stay at home mother since our first child was born more than 8 years ago. Prior to that, in 2007, I worked as a medical assistant for a doctor's office." She said she does not have a college degree "and would need to start from scratch for practically any position other than low paying, entry level work."
Mother requested a reasonable amount for spousal support and the guideline amount for child support. Mother also sought need-based section 2030 attorney fees of $2,000 as an estimate of the fees that would be incurred in the proceeding. Mother said she has paid her attorney $500 from a family loan, and that her attorney's hourly rate is $180. Mother's attorney confirmed these facts by signing this portion of Mother's declaration.
Father responded by filing his own Income and Expense Declaration, claiming he was paid only $450 per week as a truck driver. However, Father's tax return showed Father earned about $54,400 as a truck driver in 2015. The evidence showed that after 2015, Father's income dropped when he attempted to start his own business as an insurance agent or financial advisor. But by late 2016, Father returned full time to his truck driving work, and his current paystub information showed Father was now earning an average of $3,376 per month. Father said he owed various amounts, and identified several credit card balances. Father said he has paid his attorney $3,500 in fees; the source of the funds was a loan from relatives; he still owes $1,500; and his attorney's hourly rate is $375.
Both parties agreed there was at least $200,000 in equity in the family home, and stipulated that Mother could remain in the home with the five children, pending final resolution of property division issues.
At the January 2017 hearing, the court first made a finding that the $3,376 monthly income figure would be deemed Father's actual income for purposes of the guideline support amount. The court then found Mother's income was $530 per month (funds earned from a rental unit in the back of the family home) plus $1,700 in public assistance. The court also found that Mother had 95 percent custody time with the children.
Based on these and other figures, the court calculated the guideline child support amount to be $1,646 and spousal support to be $305 per month. Father's attorney then asked the court to provide Father relief from the spousal support obligation, claiming the monthly child support payment would leave Father with insufficient funds to pay his monthly expenses. After considering counsel's arguments, the court concluded it would temporarily suspend about one-half of the spousal support amount ($150) for five months and would revisit the issue at the next hearing. In reaching its conclusions on the support calculations, the court indicated that it understood Mother was not able to work given the need to care for her five young children. Father's counsel agreed with this point.
On Mother's section 2030 attorney fees request, Father urged the court to deny the request, noting that he cannot afford his own attorney fees and had to borrow $3,500 for a retainer fee. Father's counsel confirmed Father owes outstanding fees, and she has filed a family law lien against the community residence to ensure payment of her fees. Father's counsel noted that Mother owns a one-half interest in the family home, which has at least $200,000 in equity, and argued the court is statutorily required to consider a party's assets and not just income in considering whether to award attorney fees.
Mother's counsel countered that he did not want to "waste more time and money" to file a lien because Mother has committed to paying any outstanding fees once the home is sold. As his primary argument, Mother's counsel asserted that Father should be ordered to pay for Mother's fees because he has the "greater access to income," including the ability to generate earnings and borrow funds through the use of credit cards. Mother's counsel noted that Mother has no access to credit, and there is a substantial disparity in income because Mother has not worked for the past nine years and for practical reasons is currently unable to work outside the home. Mother also presented evidence that Father has been increasing the cost of litigation by acting in an uncooperative manner and by escalating the disputes in a parallel protective order proceeding.
After considering the parties' evidence and arguments, the court ordered Father to contribute $2,000 for Mother's attorney fees "at the rate of $50 per month beginning March 1, 2017." The court awarded the fees under section 2030, finding: "[T]here is a demonstrated disparity of income; . . . [F]ather has or reasonably likely [will] have the ability to pay for legal representation of both parties; [and] the requested attorney's fees are reasonable and necessary." After the court made these findings, Father's counsel asked the court to reserve the issue until the conclusion of the case, noting that although the ordered $50 payments are a "low amount, the concern is that he really just doesn't have any more money." The court rejected this request, stating it "factored that in in making the 50-dollar-per-month award."
DISCUSSION
A. Applicable Legal Principles
Section 2030 provides the "[s]tatutory authority for pendente lite attorney fee orders in family law cases." (Alan S., Jr. v. Superior Court (2009) 172 Cal.App.4th 238, 251.) Under this code section, "the court shall ensure that each party has access to legal representation . . . early in the proceedings . . . by ordering, if necessary based on the income and needs assessments, one party . . . to pay to the other party, or to the other party's attorney, whatever amount is reasonably necessary for attorney's fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding." (§ 2030, subd. (a); see In re Marriage of Sullivan (1984) 37 Cal.3d 762, 768.) This fee-shifting statute reflects the Legislature's intent that family law parties should be on substantially "equal footing" with respect to legal representation. (Kevin Q. v. Lauren W. (2011) 195 Cal.App.4th 633, 642-643; see Alan S., at pp. 241-242; see also Droeger v. Friedman, Sloan & Ross (1991) 54 Cal.3d 26, 41, fn. 12.)
In deciding whether to award section 2030 fees, a court should consider each spouse's financial situation, including income, assets, debts, earning ability, and ability to pay. (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1167.) The critical inquiry is whether there is a disparity in access to funds to retain and pay for counsel. (§ 2030, subd. (a)(2); see In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1313-1314.) If there exists a disparity "in access and ability to pay, the court shall make an order awarding attorney's fees and costs." (§ 2030, subd. (a)(2), italics added.) Additionally, the court should consider all other relevant factors bearing on the fee issues and the relative burden on the parties, including the parties' litigation tactics, and whether counsel's time is being used to effectively and efficiently resolve the disputed issues. (In re Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 975; Drake, at p. 1167; In re Marriage of Huntington (1992) 10 Cal.App.4th 1513, 1524.)
If the circumstances warrant an attorney fees award, the court "may order payment . . . from any type of property, whether community or separate, principal or income." (§ 2032, subd. (c).) A court has broad discretion in deciding whether to award section 2030 attorney fees and the appropriate amount of the award. Absent a clear showing of abuse, the trial court's ruling will not be disturbed on appeal. (In re Marriage of Duncan (2001) 90 Cal.App.4th 617, 630.)
B. Analysis
Father has not met his appellate burden to establish the court abused its discretion in awarding the section 2030 fees. First, the facts show a significant disparity in the parties' resources to pay for attorney fees. In 2014, Father earned $42,760 and in 2015 he earned $54,262 (both adjusted gross income) primarily from his employment as a truck driver. Although he earned less income in 2016, the evidence at the time of the hearing established that Father has now returned to working full time as a truck driver and he has access to credit and the ability to borrow funds from various sources. In contrast, Mother is unable to work because of the need to care for their five young children and she lacks access to any credit or liquid community property assets.
Additionally, although the parties had been financially dependent on Father's income throughout the marriage, after the separation Father had not been paying needed funds for his large family (such as the mortgage payments on the family home) until close to the court date, allowing the court to reasonably conclude Father had not acted in good faith in seeking to fairly resolve the issues. The record also shows that Father's attorney had charged a higher hourly rate ($375) than Mother's attorney ($180), and Father had incurred substantially more fees than Mother on the case. Father paid his attorney $3,500 and owed an additional $1,500 in fees; whereas Mother had incurred only $500 in fees and was seeking $2,000 as a total estimated payment amount.
On this record, the court did not abuse its discretion in ordering Father to pay $2,000 for Mother's attorney fees under a $50 monthly payment plan. In making this order, the court considered the disparate economic situations of the parties and the policies underlying the need to equalize access to legal counsel. Viewing the equities in this case, the court acted reasonably in awarding Mother her requested fees to ensure she had adequate and effective representation substantially equivalent to Father's representation.
Father contends that after the court's support payments order, Mother would have more monthly income than he would have. However, Mother needed these funds to pay for food and other necessities for herself and the children, and she was responsible for paying for the mortgage and other housing expenses. The child and spousal support awards were based on the income, expenses, and needs of the parties, and there was no showing these amounts included funds to be used to pay for Mother's attorney fees. Additionally, the court recognized Father's limited resources, and accommodated him by providing a monthly $50 installment payment plan and delayed the payment date for two months.
Father argues he cannot afford the $50 monthly payment. A parent's ability to pay for the ordered attorney fees is a relevant factor in the section 2030 analysis. (See § 2030, subd. (a); In re Marriage of Keech (1999) 75 Cal.App.4th 860, 867-868.) However, the court expressly recognized Father's limited resources, but found the $50 payment would not impose an unreasonable burden. This ruling was not an abuse of discretion, given Father's current salary and his demonstrated ability to earn a higher income as a truck driver.
Father's reliance on Marriage of Schulze (1997) 60 Cal.App.4th 519 is misplaced. The Schulze court reversed child and spousal support awards based on calculation errors. (Id. at pp. 525-530.) The court also found a $7,500 attorney fees award was "more than reasonable" (id. at p. 531), but reversed the order because it required the husband to pay this amount immediately in a lump sum (id. at pp. 531-532). The court reasoned that the husband had no liquid assets and, contrary to the family court's findings, there was no evidence his parents would be a source for satisfying the fee award. (Ibid.) Unlike Schulze, the record here does not show any calculation errors and the court specifically ordered that Father could pay the fees award in low monthly installments. Although $50 is not a trivial amount for someone in Father's position, the evidence supports the court's finding that he could afford to pay this amount. The court did not err in finding the fee award was reasonable to ensure parity between the spouses with respect to attorney assistance.
Father also contends the court abused its discretion because Mother failed to submit "any evidence as to the nature and complexity of the work required in her matter, her attorney's work experience, or an attorney fee bill." Under applicable rules, a party seeking section 2030 attorney fees must "provide the court with sufficient information about the attorney's hourly billing rate; the nature of the litigation; the attorney's experience in the particular type of work demanded; the fees and costs incurred or anticipated; and why the requested fees and costs are just, necessary, and reasonable." (Cal. Rules of Court, rule 5.427(b)(2).) The record contains information relevant to each of these factors, except for Mother's attorney's experience with similar types of cases. The absence of this information, however, does not show reversible error. First, Father never objected to Mother's showing on this issue, and therefore Father forfeited this challenge on appeal. (See Natkin v. California Unemployment Ins. Appeals Bd. (2013) 219 Cal.App.4th 997, 1011; Kern County Dept. of Child Support Services v. Camacho (2012) 209 Cal.App.4th 1028, 1038.) Additionally, given that Mother's attorney is charging an hourly rate of $180, an amount substantially below Father's attorney's rate, and was seeking an award that on its face appears reasonable (particularly given the parties' apparent strong animosity and inability to cooperate on even simple matters), the court did not abuse its discretion in concluding the record contained information showing Mother's attorney had sufficient experience in this area to warrant the amount of attorney fees.
We likewise reject Father's contention the court abused its discretion by refusing to require Mother's attorney to wait for the family home to be sold, and then to obtain his fee payment at that time. Although there appears to be substantial equity in the property, the court observed that if the home were sold, it would be very difficult for Mother to find equivalent housing for a similar price (mortgage payment was about $924) for her and the five children. Thus, the court's ruling that Mother should not be required to bear the entire costs of her attorney fees if and when the home sold made sense to ensure sufficient assets for Mother in the long run.
DISPOSITION
Order affirmed. The parties are to bear their own costs on appeal.



HALLER, J.

WE CONCUR:



NARES, Acting P. J.



GUERRERO, J.