Marriage of Talerman

Filed 2/22/07  Marriage of Talerman CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

 COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

            APPEAL from a postjudgment order of the Superior Court of San Diego County, Edward B. Huntington, Judge.  Affirmed in part, reversed in part, and remanded.

I

INTRODUCTION

            This appeal arises from ongoing litigation in a marital dissolution action.  Appellant Abraham Talerman (Abraham)^[1] seeks relief from a postjudgment order in

which the trial court awarded Sarah Talerman (Sarah) $2,500 in attorney fees.  Less than a month after the court entered a judgment in the Talermans' dissolution action, Abraham moved the court to set aside the judgment under Code of Civil Procedure section 473, subdivision (b), and/or to modify the child support award.  Although the parties' attorneys appeared before the court on the hearing date for the motion, the court indicated that it did not want to hear oral argument and that it would take the matter under submission.^[2]  The court issued an order denying Abraham's motion to modify the child support award on several grounds.  The court also ordered Abraham to pay Sarah's attorney fees in the amount of $2,500.

            Abraham contends that the trial court abused its discretion in ordering him to pay $2,500 in attorney fees.  Abraham asserts that if the court's award of attorney fees was pursuant to Family Code^[3] section 2030, the award of attorney fees should be reversed because the court failed to address the parties' relative circumstances at the time the request for attorney fees was made.  Abraham also maintains that the court abused its discretion in awarding attorney fees because the parties' respective financial circumstances did not warrant the award, and because prior to the hearing date, Abraham had requested that the matter be taken off the court's calendar.  Finally, Abraham contends that if the court intended the attorney fee award to be a sanction, the court abused its discretion because Abraham was provided no notice of a request for sanctions or of the court's intention to impose sanctions, and also because his conduct did not warrant the imposition of sanctions.

            We conclude that the trial court failed to demonstrate that it considered the factors a court must consider when determining whether to award attorney fees under section 2030.  We therefore reverse the portion of the trial court's order awarding attorney fees, and remand the matter to the trial court for it to make the necessary findings pertaining to an award of attorney fees in a dissolution action.

II

BACKGROUND

A.        Procedural background of proceedings prior to Abraham's motion

            to modify the child support award

            The limited record on appeal does not reflect the date on which Sarah filed this dissolution action.  However, the record demonstrates that on August 11, 2004, the court issued an order regarding custody and visitation of the couple's daughter. 

            In November 2004, the court appointed Richard Annis " to perform an income evaluation as well as a business evaluation of the business known as Talerman Consulting," which was Abraham's consulting business.  Each party was to pay in advance one-half of the costs of having the evaluations prepared.  The court reserved jurisdiction to reallocate the burden of the costs at a later time.  The court continued consideration of other issues in the case to December 2004.

            On December 21, 2004, the court ordered Abraham to pay one-half of the cost of retaining Annis as the special master, by January 31, 2005, apparently because Abraham had not yet fulfilled his obligations in this regard.  The court also ordered both parties to " proceed to extended mediation." ^[4]

            On March 28, 2005, the court entered another order in the case after a hearing on March 14.  At that time, Abraham was no longer represented by an attorney, and was representing himself.  The court again ordered Abraham to pay $1,750, representing one-half of the retainer to hire Annis as special master, on or before March 31, 2005.  The court further ordered that Abraham pay Sarah's attorney, Jeffrey Fritz, $1,500, immediately.

            In a letter dated April 4, 2005, Annis informed Attorney Fritz that Abraham still had not made any payment to Annis.  Sarah then brought an ex parte motion, asking the court to strike Abraham's response to her petition and to allow the matter to proceed by way of default.  The court granted Sarah's request, and set April 27, 2005 for the prove-up hearing.  On April 27, Abraham appeared with a new attorney.  The court continued the matter for a week to allow the parties to attempt to negotiate an agreement as to the remaining matters in the dissolution action.

            On May 3, Sarah and Abraham reached an agreement and a stipulation was read into the record.  Abraham, through his counsel, thanked the court for allowing him to participate in the proceedings, despite the fact that Sarah could have proceeded by way of default against him.^[5]  Abraham indicated that he fully understood the stipulated terms, and that he wanted the court to enter those terms as the final judgment in the case.

            Abraham never signed the judgment that Sarah's attorney prepared and sent to him.  In August 2005, Sarah moved for entry of judgment and for attorney fee sanctions in the amount of $10,000.  On October 14, 2005, Abraham filed an income and expense declaration in which he asserted that he was self-employed and that his average gross monthly income was $1,604.

            On November 3, 2005, the court entered an order granting Sarah's request for entry of judgment, and awarded her $7,500 in sanctions under section 271.  The court found that Abraham " has been uncooperative at every stage of these proceedings" and that his lack of cooperation had resulted in additional costs to Sarah.  The court also noted that Abraham had made it difficult for the court to determine the parties' respective financial circumstances in that he failed to complete an income and expense declaration and failed to pay the special master appointed to determine his income.  The court found not credible Abraham's statement that he never individually earned $8,500 per month, nothing that Abraham had declared under penalty of perjury on a loan application completed in late 2003 that he earned $8,500 per month.

            The court also addressed Sarah's separate motion for a mesne judgment on the arrearages.  The court indicated that Abraham owed Sarah $12,681, which included the amount of the original judgment, unpaid child support, and interest and/or penalties on both.

            The court entered a judgment that incorporated the terms the parties had negotiated and agreed upon in May.^[6]  Pursuant to the judgment, Abraham is to pay Sarah $475 per month in child support.

B.        Procedural background concerning Abraham's motion to modify the child

            support award

            On November 21, 2005, Abraham moved to modify the child support award and to set aside the judgment under Code of Civil Procedure section 473, subdivision (b), on the basis of attorney neglect or mistake.  Abraham was not represented by an attorney at the time he filed these motions.  Abraham contended that his attorney had failed to properly advise him with regard to the child support issue.

            Sarah filed an opposition to Abraham's motions on December 29, 2005.  In her responsive declaration, Sarah requested that the court order Abraham to " contribute to the petitioner's attorney fees and costs."

            On January 3, Abraham filed a substitution of attorney form, substituting Stephen Rocha as his attorney.  On January 4, Attorney Rocha filed a declaration in which he stated that he had attempted to take the motion off the court's calendar, but that Attorney Fritz would not agree to take the matter off calendar.

            The parties' attorneys appeared before the court for a hearing on the motions on January 10, 2006.  The court denied with prejudice Abraham's motion to set aside the judgment after Attorney Rocha indicated that Abraham had withdrawn the motion.

            Attorney Rocha objected to Sarah's responsive papers on the basis that they were not timely filed.  The record reveals that the court then conducted a review of the case history.  There was no further discussion of the objection, and the court never ruled on it. 

            Attorney Fritz objected to Abraham's motion on the ground that Abraham had failed to file an income and expense declaration with the motion, in violation of San  Diego Local Rule 5.6.2 and California Rules of Court, rules 5.118 and 5.128.  The court tentatively ruled that Abraham's motion was incomplete, but took the matter under submission.

            The court issued an order on January 12.  In that order, the court noted that it had taken the matter under submission without hearing oral argument, and that Abraham had withdrawn his motion made pursuant to Code of Civil Procedure section 473, subdivision (b), with prejudice.  The court found that the child support award provided in the judgment entered on October 27, 2005, was not set by stipulation, as Abraham had indicated, but rather, that the judgment was a default judgment because Abraham's responsive pleadings had been stricken.  However, the court also found that Sarah's attorney had worked with Abraham's attorney to arrive at terms that were acceptable to the parties and the court.  The court recited the fact that Abraham had refused to approve the judgment, and that the judgment was entered only after Sarah filed a motion.

            The trial court then ruled on the substance of Abraham's motion to modify the child support award.  The court concluded that Abraham had not alleged a change in circumstances in his pleading papers, and that he had thus failed to meet the requirements for modifying an order for child support.  The court also concluded that Abraham's motion failed to comply with Rules of Court, rule 5.128, which requires that the party bringing the motion file and serve a current " Income and Expense Declaration."   The court found this defect to be fatal.

            On these two grounds, the trial court denied Abraham's motion to modify the child support award.  The court also noted that Abraham had unclean hands in that he had not paid the previously ordered child support.  In the final sentence of the court's ruling, the court ordered Abraham " to pay attorney fees in the sum of $2,500 for this current motion."

            Abraham filed a timely notice of appeal on February 21, 2006.

III

DISCUSSION

            Abraham contends that the trial court erred in ordering him to pay $2,500 for Sarah's attorney fees.  Abraham first asserts that the attorney fee award was erroneous because the court failed to address the parties' relative circumstances at the time Sarah requested that the court award her attorney fees.  Abraham also argues that the court abused its discretion in awarding attorney fees because the parties' respective financial circumstances did not warrant the award and because he had requested that the matter be taken off the court's calendar prior to the hearing date.  Finally, Abraham contends that if the court awarded attorney fees to Sarah as a sanction for his conduct, the court abused its discretion in so doing because Abraham was not provided notice that a request for sanctions had been made, and because his conduct did not warrant the imposition of sanctions.^[7]

            During a dissolution action, a trial court may order that one party pay some or all of the other party's legal fees and costs pursuant to section 2030.^[8]  " 'A motion for attorney's fees and costs in a dissolution action is addressed to the sound discretion of the trial court, and in the absence of a clear showing of abuse, its determination will not be disturbed on appeal.  [Citations.]  The discretion invoked is that of the trial court, not the reviewing court, and the trial court's order will be overturned only if, considering all the evidence viewed most favorably in support of its order, no judge could reasonably make the order made.  [Citations.]'  [Citation.]"  (In re Marriage of Keech (1999) 75 Cal.App.4th 860, 866 (Keech); see also In re Marriage of Ananeh-Firempong (1990) 219 Cal.App.3d 272, 279-280.)

            However, " 'while the court has considerable latitude in fashioning or denying a pendente lite fee award[,] its decision must reflect an exercise of discretion and a consideration of the appropriate factors.  [Citations].'  [Citation.]"   (Keech, supra, 75 Cal.App.4th at p. 866 (italics added), quoting In re Marriage of Hatch (1985) 169 Cal.App.3d 1213, 1219.)  " The trial court's discretion in this area is thus limited by the statutes which enable the exercise of that discretion."   (Keech, supra, 75 Cal.App.4th at p.  866.) 

            Section 2030 provides that the decision whether " one party shall be ordered to pay attorney's fees and costs for another party, and what amount shall be paid, shall be determined based upon, (A) the respective incomes and needs of the parties, and (B) any factors affecting the parties' respective abilities to pay."   Section 2032 provides in pertinent part:

" (a)  The court may make an award of attorney's fees and costs under Section 2030  or 2031 where the making of the award, and the amount of the award, are just and reasonable under the relative circumstances of the respective parties.

" (b)  In determining what is just and reasonable under the relative circumstances, the court shall take into consideration the need for the award to enable each party, to the extent practical, to have sufficient financial resources to present the party's case adequately, taking into consideration, to the extent relevant, the circumstances of the respective parties described in Section 4320.  The fact that the party requesting an award of attorney's fees and costs has resources from which the party could pay the party's own attorney's fees and costs is not itself a bar to an order that the other party pay part or all of the fees and costs requested. 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."   (§ 2032, subd. (a) (italics added).)

            " In assessing one party's relative 'need' and the other party's ability to pay, the court may consider all evidence concerning the parties' current incomes, assets, and abilities, including investment and income-producing properties."   (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1167.)  Further, under the terms of section 2032, " '[a] disparity in the parties' respective circumstances may itself demonstrate relative " need" even though the applicant spouse admittedly has the funds to pay his or her fees.'  [Citation.]"   (Drake, supra, 53 Cal.App.4th at p. 1167.)

            The only indication of the court's reasons for requiring Abraham to pay $2,500 for Sarah's attorney fees is a single sentence in which the court orders Abraham to pay attorney fees in the amount of $2,500.  The trial court's decision does not reflect whether the court considered Abraham's ability to pay the $2,500 attorney fee award, whether the court considered the respective needs of the parties, or whether the court determined that the fees Sarah incurred were " reasonably necessary."   The court made no mention of any of those factors, and provided no explanation as to how or why it determined $2,500 to be an appropriate attorney fee award. 

            There was no evidence before the court regarding the fees that Sarah had incurred, and the court never inquired as to how much those fees were.^[9]  Because there was no evidence as to the nature and extent of the legal work completed on Sarah's behalf, the trial court had no way to evaluate that work in order to determine whether the work was " reasonably necessary."   (See Keech, supra, 75 Cal.App.4th at p. 869 [" Without ascertaining whether or at what hourly rate the work for which reimbursement was sought was actually done, much less that the work was 'reasonably necessary' in light of the issues in the case," the trial court could not properly make a finding that the legal bill was " 'just and reasonable under the relative circumstances of the respective parties.'" ].)

            Sarah contends that the " lack of a statement of decision does not constitute error and does not indicate that the court failed to properly discharge its duties."   However, the language of sections 2030 and 2032 requires that a trial court consider certain factors when making an attorney fees award.  (See §  2030, subd. (a)(2) [" Whether one party shall be ordered to pay attorney's fees  .  .  .  shall be determined based upon  .  .  .  ." ]; §  2032, subd. (b) [" In determining what is just and reasonable under the relative circumstances, the court shall take into consideration the need for the award  .  .  .  ." ].)  At least one other appellate court has concluded that a trial court's decision ordering attorney fees pursuant to section 2030 must reflect the fact that the court did in fact consider the factors discussed in sections 2030 and 2032.  (See Keech, supra, 75 Cal.App.4th at p.  866.)

            Although the record here reflects quite a bit of information that might have formed the basis for the trial court's decision to award Sarah $2,500 in attorney fees, the trial court did not provide any analysis from which this court can conclude that the trial court in fact considered this evidence or that it considered the required statutory factors when it awarded Sarah attorney fees.  It is possible that the trial court did consider the relevant factors prior to making its ruling, particularly in view of the trial court's familiarity with the case and the parties.  However, it is also possible that the trial court failed to properly consider the factors outlined in sections 2030 and 2032.

            Because this court cannot determine whether or not the trial court considered the factors relevant to making a determination that an attorney fee award is " just and reasonable," we must remand the matter to the trial court to make the determinations that are required under section 2030 and 2032.  (See Keech, supra, 75 Cal.App.4th at p.  871.)  We do not intend to suggest to the trial court that any particular award of attorney fees is or is not appropriate in this case.  It is for the trial court to determine what amount of fees would be " just and reasonable" under the circumstances, and whether the fees were " reasonably necessary, and to reflect its consideration of the parties' relative needs, and Abraham's ability to pay." ^[10]

IV

DISPOSITION

            That portion of the trial court's January 12, 2006 order directing Abraham to pay Sarah's attorney fees is reversed and remanded to the trial court to make the determinations required under sections 2030 and 2032.  The order is otherwise affirmed.  The parties are to bear their own costs on appeal.

AARON, J.

WE CONCUR:

                         NARES, Acting P. J.

                                       HALLER, J.

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^[1]           We use the parties' first names for purposes of clarity.

^[2]           On that date, Abraham's attorney withdrew the request that the judgment be set aside under Code of Civil Procedure section 473, subdivision (b), with prejudice.

^[3]           Further statutory references are to the Family Code unless otherwise indicated.

^[4]           The order documenting the court's December 21, 2004 ruling was not filed until March 8, 2005.

^[5]           When asked if she understood that she could have proceeded by way of default, Sarah acknowledged that she understood, and that it was her desire that the judgment reflect the terms to which the parties had agreed.

^[6]           The chronology of these events is unclear.  The judgment was signed and filed on October 27, 2005.  However, the order purporting to grant Sarah's request for entry of judgment was not signed and filed until November 3. 

^[7]           In responding to Abraham's motion, Sarah did not request sanctions under section 271, and the trial court did not indicate that it was awarding Sarah the $2,500 in attorney fees as a sanction.  Sarah asserts in her briefing on appeal that the trial court " did not order attorney fees as sanctions."   Because there is no indication from either Sarah or the trial court that the attorney fee award was intended to be in the nature of a sanction under section 271, we presume that the award was made pursuant to section 2030.  (See In re Marriage of Braud (1996) 45 Cal.App.4th 797, 827 [" Because there is no indication that the fee award in this case was ordered as a sanction pursuant to section 271  .  .  .  , we presume that it was a so-called 'need-based' award predicated on what is 'just and reasonable' given the 'relative circumstances' of the parties, and what amount was 'reasonably necessary' to adequately maintain or defend the action." ].)  However, because Abraham argues on appeal that the imposition of attorney fees as a sanction under section 271 would have been improper, we consider Sarah's statement that the trial court did not award fees pursuant to section 271 to be a concession that such an award could not stand on this record.  Indeed, as we discuss below, the trial court did not " take into consideration all evidence concerning the parties' incomes, assets, and liabilities," nor did it first determine whether such an award would be " an unreasonable financial burden" on Abraham, both of which are required by the statute.  (§ 271, subd. (a).)  Further, Abraham was not provided notice and an opportunity to be heard on the issue of an award of attorney fees as a sanction, as is required by subdivision (b) of section 271.

^[8]           Section 2030 provides:  " (a) (1) In a proceeding for dissolution of marriage, nullity of marriage, or legal separation of the parties, and in any proceeding subsequent to entry of a related judgment, the court shall ensure that each party has access to legal representation to preserve each party's rights by ordering, if necessary based on the income and needs assessments, one party, except a governmental entity, 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.  [¶]  (2) Whether one party shall be ordered to pay attorney's fees and costs for another party, and what amount shall be paid, shall be determined based upon, (A) the respective incomes and needs of the parties, and (B) any factors affecting the parties' respective abilities to pay. A party who lacks the financial ability to hire an attorney may request, as an in pro per litigant, that the court order the other party, if that other party has the financial ability, to pay a reasonable amount to allow the unrepresented party to retain an attorney in a timely manner before proceedings in the matter go forward.  [¶]  (b) Attorney's fees and costs within this section may be awarded for legal services rendered or costs incurred before or after the commencement of the proceeding.  [¶]  (c) The court shall augment or modify the original award for attorney's fees and costs as may be reasonably necessary for the prosecution or defense of the proceeding, or any proceeding related thereto, including after any appeal has been concluded.  [¶]  (d) Any order requiring a party who is not the spouse of another party to the proceeding to pay attorney's fees or costs shall be limited to an amount reasonably necessary to maintain or defend the action on the issues relating to that party."

^[9]           Although Sarah's " Responsive Declaration to Order to Show Cause or Notice of Motion," a form pleading, includes a request that " the respondent contribute to the petitioner's attorney fees and costs," the memorandum of points and authorities Sarah filed in response to Abraham's motion to modify child support does not include any reference to her request for attorney fees.  In fact, it does not mention attorney fees at all.  The generic request for attorney fees on Sarah's form pleading appears to be the only mention of Sarah's request for attorney fees in the record.

^[10]         The trial court might find, as it indicated in its November 3, 2005 order granting Sarah's request for entry of judgment, that Abraham's own actions have prevented the court from being able to accurately discern his ability to pay and/or the relative needs of the parties.  A statement to this effect would be a sufficient indication that the trial court considered the relative needs of the parties and Abraham's ability to pay, even if the court had only limited credible evidence before it.  The court would still have to determine that any fees to be awarded were " reasonably necessary."   This determination would not be dependent on information from Abraham.