Marriage of Henry

Filed 3/15/07 Marriage of Henry CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a postjudgment order of the Superior Court of Orange County, Nancy A. Pollard, Judge. Affirmed.

Law Offices of Jeffrey W. Doeringer and Jeffrey W. Doeringer for Appellant.

Law Office of Marjorie G. Fuller, Marjorie G. Fuller; and Philip G. Seastrom for Respondent.

* * *

Introduction

Daniel S. Henry challenged a need-based attorney fees award issued by the trial court in favor of his ex-wife, Marcia Henry.[1] In an unpublished opinion, In re Marriage of Henry (Mar. 16, 2006, G035104), we reversed the award, and remanded the matter for further proceedings to permit the court to show it exercised its discretion and considered all relevant factors under Family Code sections 270, 2030, 2032, and 4320. (All further statutory references are to the Family Code, unless otherwise indicated.) On remand, the parties made written submissions and had an opportunity to make oral argument to the court. The court then issued a new attorney fees award in favor of Marcia, and Daniel appealed.

We find no merit in any of the arguments raised by Daniel in this second appeal. The trial court followed our instructions on remand. We find no abuse of discretion and therefore affirm.

Statement of Facts and Procedural History

On February 1, 2005, the trial court ordered Daniel to pay Marcias attorneys a total of $155,250. Daniel appealed, and we reversed because the trial courts award of attorney fees does not reflect an exercise of discretion and the required consideration of the statutory factors in the exercise of that discretion. (In re Marriage of Henry, supra, G035104.) We remanded for further proceedings in the trial court as to the amount of attorney fees that appellant may be ordered to pay to respondents attorneys under sections 2030 and 2032 (including reference to section 4320), not section 271. The courts order on remand must show the court exercised its discretion and considered the factors under sections 270, 2030, 2032, and 4320, and must explain the basis for and calculation of attorney fees awarded, if any. (Ibid.)

After the remittitur issued, Marcias counsel submitted a proposed ruling on remand to the trial court. Daniel filed written objections to the proposed ruling. The court conducted a hearing on the matter, and gave both sides an opportunity to present their arguments. On July 13, 2006, the trial court ordered Daniel to pay Marcias attorneys a total of $167,250.[2]

The order reads, in relevant part: This fee order is based upon the following:

This Court considered the factors for the award of attorneys fees pursuant to Family Code sections 270, 2030, 2032 and 4320.

The court finds that the amounts ordered are just and reasonable under the relative circumstances of the respective parties. (Family Code Section 2032[, subdivision] (a).[)] The husband has or is reasonabl[y] likely to have the ability to pay. (Family Code Section 270)

The Court finds that the wife has the need for the award in order for her, to the extent practical, to have sufficient financial resources to adequately have presented her case, taking into consideration, to the extent relevant, the parties circumstances as described in Family Code Section 4320 as follows:

[Family Code section] 4320[, subdivision] (c) (ability to pay): Husband is a stock broker with UBS Pain[e] Weber. The court finds his gross monthly income to be $12,008 which is double that of wife. The parties STIPULATED that the gross monthly earnings of the wife [were] $6300 and the gross monthly earnings of the husband [were] $12,008. Counsel for husband argues that this does not include legitimate business expenses to be deducted from husbands gross earnings. However, there was no evidence admitted as to the sum of $1415 claimed by counsel for husband. The assets and properties were divided equally between the parties, with the wife maintaining possession of the family residence as continuing stability for the children. The parties stipulated to this. Counsel for husband argues that this is some kind of special benefit to the wife. Yet, in the equalizing of the division between the parties, husband still paid an addition[al] sum to the wife in cash so one cannot assume that the wife received more than an equal share in the division of the community property when she retained possession of the family residence and the husband received another residence the parties had acquired during the marriage. A third piece of property was sold and the proceeds were divided equally.

Husbands support for the minor children is $1650 per month. The sum of $375 for which he pays spousal support to the wife is a tax deduction to his adjusted gross income. Counsel for husband makes no mention of this tax benefit to the husband and tax consequence to the wife. Counsel for husband argues that husband additionally pays one half the cost of the childrens uncovered medical expenses and one half the child care expense. What counsel for husband fails to note is that the wife pays the OTHER HALF. For these expenses the parties are in parity. There are funds in an amount in excess of $55,000 in the trust account of Attorney Seastrom. The court finds that husband has the ability to pay the attorneys fees as ordered.

[Family Code section] 4320[, subdivision] (d) (each partys needs): Wifes gross income is approximately $6300.00 per month. She has primary custody of the two children of the parties. Her monthly mortgage payment for the family residence for herself and the children is $3,220 and the monthly real property taxes are $550. The child support of $1650 barely covers the childrens education expenses and extracurricular activities. Wifes expenses for herself and the two children are in excess of $10,000 per month. Husbands stated monthly expenses are $5[,]437 for himself alone. Wife would be unable to maintain her and the childrens standard of living established during the marriage without a substantial contribution from husband to her attorneys fees.

[Family Code section] 4320[, subdivision] ([e]) (each partys assets) Each party received significant assets in the dissolution proceedings. That the party requesting the award may have the resources to pay her own attorneys fees is not in and of itself a bar in ordering the other party to pay part or all of the fees and costs requested. Financial resources [are] but only one factor the court considered in apportioning the litigation costs equitably between the parties according to their respective circumstances. ([Fam. Code, ] 2032[, subd.] (b); In Re Marriage of OConnor (1997) 59 Cal.App.4th 877, 884)

[Family Code] section 4320[, subdivision] (n) (any other factors the court deems just and equitable): The court[] finds that while the award may seem unusually high, the [v]ast majority of fees incurred in this matter were due to husband[s] refusal to make pertinent records available, to make complete and truthful property and income disclosures, to cooperate in discovery, and through generally stalling the process. The inordinately lengthy record here presented, reveals a case of stunning complexity, occasioned, for the most part, by husbands intransigence. [Citations] The court finds the husbands dilatory and uncooperative conduct justifies what might otherwise seem to be an excessive fees and costs award. The court record during the time in which the parties appeared before the Honorable GAIL ANDLER reflect[s] the courts find[ing] of husbands lack of truthfulness. Another unrealistic demand by husband by way of [an order to show cause] seeking an order for the sale of the family residence before Judge ANDLER was denied as was the subsequent motion for reconsideration filed by the husband.

Counsel for husband argues that attorney fees for wife are double that of the fees incurred by the husband. A review of the hourly rates of the two counsel, $200 per hour for Attorney LEVINSON [Daniels counsel] and $400 per hour for Attorney SEASTROM by way of simple mathematics would indicate that the number of hours and amount of work by the office of attorney SEASTROM [was] no[t] ou[t] of line or unreasonable.

The court finds the fees incurred by attorneys Rose[n] and Seastrom to be reasonably necessary to defend the proceedings. (Family code section 2030[, subdivision] (a)(1)[)] The court has considered the nature and complexity of the litigation, the skill required and employed in handling the litigation, the attention given, the success of counsels efforts, their professional standing and reputation and the time consumed on defending, successfully, an inordinate number of ex-parte Orders to Show Cause and other Motions filed by husband whenever counsel for wife refused to capitulate to counsel for husbands unreasonable demands. Additionally, the proceedings were delayed when counsel for wife had to defend over a two[-]day trial, again successfully, a Domestic Violence action filed by husband. The court has also relied on its own substantial knowledge and experience in determining the reasonable value of attorneys Rose[]n and Seastroms fees and fixed the amount of fees accordingly. [Citations]

In summary, the court has considered the applicable Family Code Sections and cases interpreting them, which set forth the relevant factors for the award of attorneys fees including need, ability to pay, the relative circumstances and the financial resources of the parties, the experience and professional standing of the attorneys, the skill required and employed in the proceedings, the time consumed, and the court[]s own observations and general experience. (Family Code sections 270, 2030, 2032 and 4320.)

Daniel appealed.[3]

Discussion

An award of attorney fees is reviewed for abuse of discretion. (In re Marriage of Rosen (2002) 105 Cal.App.4th 808, 829.) We must affirm unless no judge could reasonably make the order. (Ibid.) We indulge all reasonable inferences to uphold the courts order. (In re Marriage of Abrams (2003) 105 Cal.App.4th 979, 991.)

In awarding need-based attorney fees under sections 2030 and 2032, the record must reflect the trial courts exercise of its discretion, as well as its consideration of the relevant statutory factors in the exercise of that discretion. (In re Marriage of Lynn (2002) 101 Cal.App.4th 120, 133-134; In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 315; In re Marriage of Keech (1999) 75 Cal.App.4th 860, 866.) In reversing the first attorney fees order, we noted it did not indicate that the trial court considered the parties respective needs and abilities to pay ( 270, 2030, subd. (a)), or that the court exercised its discretion in determining $155,250 was a just and reasonable amount ( 2032, subds. (a) & (b)). Nor do the ruling and judgment show that the court considered any of the factors set forth in section 4320. (In re Marriage of Henry, supra, G035104.)

In the second attorney fees order, however, the record shows the trial court considered the section 4320 factors (specifically subdivisions (c), (d), (e), and (n)), considered the parties respective needs and abilities to pay, and explained how it exercised its discretion to determine the amount of fees awarded was just and reasonable. The trial court did exactly what we asked of it. We commend the trial court for the thoroughness of its order and its clear explanation of the basis for its decision.

Daniel argues the trial court failed to consider the parties respective incomes and needs . . . , including all evidence concerning income, assets and abilities, in exercising its discretion to award attorneys fees. [Citations.] [Citation.] (In re Marriage of Jovel (1996) 49 Cal.App.4th 575, 586.) Daniel is simply wrong. The attorney fees award amply demonstrates the courts consideration of the parties stipulated income, monthly expenses, and assets.

Daniel also argues the trial court improperly based its attorney fees award on section 271, contrary to the clear prohibition for such an award in our earlier opinion, In re Marriage of Henry, supra, G035104. We disagree. The length and complexity of the litigation occasioned by Daniels uncooperative behavior may properly be considered in making a need-based award of attorney fees. (In re Marriage of Dick (1993) 15 Cal.App.4th 144, 167-168 [interpreting former Civil Code section 4370.5, which was continued in Family Code section 2032 without substantive change]; In re Marriage of Kozen (1986) 185 Cal.App.3d 1258, 1264 [husband ordered to pay more than $100,000 of wifes attorney fees and accountant fees; need-based award justified because husband did not cooperate, misrepresented assets, withdrew from settlement, and stonewalled and was difficult during discovery].)

We therefore reject Daniels claim that dilatory or obstreperous conduct cannot be considered by the trial court. The purpose of section 2030 is to ensure both parties have access to legal representation, and section 2030 therefore permits the trial court to order one party to pay to the other whatever amount is reasonably necessary for attorneys fees and for the cost of maintaining or defending the proceeding. ( 2030, subd. (a)(1).) The amount reasonably necessary to allow Marcia to maintain or defend the proceeding was inextricably tied to Daniels conduct in unreasonably running up the bill.

Daniels additional points are also meritless. Daniel claims he was denied due process because Marcias counsel submitted a proposed attorney fees order to the trial court, and the court rushed to judgment. A party may submit proposed orders to the trial court. Daniel had an opportunity to, and did, submit written opposition to Marcias proposed order. Additionally, the court permitted the parties to present argument at a hearing. True, the amount of attorney fees awarded was essentially the same as the first time around, but that does not mean Daniel was denied a fair hearing. Our earlier opinion did not tell the trial court its ultimate assessment of the amount of fees to be paid to Marcias attorneys by Daniel was incorrect; we stated the trial court was required by statute to explain the factors it considered in making that assessment and in exercising its discretion.

Daniel argues the order does not explain why he has been ordered to pay such a large proportion of Marcias total attorney fees, or whether the fees incurred by Marcias counsel were legitimately incurred in presenting Marcias case. Not so. The trial court found the fees incurred by Marcias counsel were reasonably necessary to defend the proceedings, and used its own extensive knowledge and experience in determining the amount of attorney fees to be awarded. The requirements of the statutes and our earlier opinion were satisfied.

Daniel also contends that the trial court failed to show its calculations. There is substantial evidence in the record to support the total amount of fees awarded, and to support the trial courts conclusion that Daniel had the ability to pay the attorneys a total of $2,250 per month.[4] The use of the term calculation in our earlier opinion was not meant to require that the trial court set forth mathematical calculations within its order, but to provide a reasonable basis for the discretion it exercised and the decision it reached. The trial court did so.

Disposition

The postjudgment order is affirmed. Respondent to recover costs on appeal.

FYBEL, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

ARONSON, J.

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[1] We will refer to the parties by their first names to avoid confusion, and intend no disrespect.

[2] The court ordered Daniel to pay Marcias first attorney, Bonnie Rosen, $25,000, and credited him with $10,500 already paid. The $14,500 balance was ordered to be paid at the rate of $750 per month, beginning on August 1, 2006. The court also ordered Daniel to pay Marcias current attorney, Philip Seastrom, $142,250, including the additional amounts Daniel was ordered to pay by the family court commissioner after the initial appeal was filed. Daniel was credited with $93,000 held by Attorney Seastrom in his trust account, $12,000 of which had already been released to him, and the remaining $81,000 of which would be immediately released to Attorney Seastrom. The remaining balance of $49,250 was to be paid in monthly installments of $1,500, beginning on August 1, 2006.

[3] After the remittitur issued in In re Marriage of Henry, supra, G035104, Daniel filed a request under Code of Civil Procedure section 170.6 to remove Judge Pollard. The trial court denied that request, and this court summarily denied Daniels petition for a writ of mandate (appellate case No. G037179). Daniel also filed a petition for a writ of supersedeas after the trial court issued the second attorney fees award, asking that we declare the order void or stay its enforcement pending appeal. We also summarily denied that petition (appellate case No. G037429).

[4] By separate orders, we took judicial notice of the appellate records in case Nos. G035104 and G037429.