Marriage of Cuk

Filed 6/22/07 Marriage of Cuk 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 an order of the Superior Court of Orange County, Linda Lancet Miller, Judge. Reversed and remanded.

Law Offices of Burch, Coulston & Buncher, Robert Burch, Sven D. Buncher; Carlsmith Ball and Malcolm S. McNeil for Appellant.

Law Offices of Conway & Tomich, Jack K. Conway and Lillian Tomich for Respondent.

Appellant Slobodan Cuk challenges an order requiring him to pay $75,000 of respondent Dragana Vera Cuks pendente lite attorney fees in addition to the $10,000 provided in the parties previous stipulation. Slobodan^[1]contends the trial court erred by modifying the stipulated order and by failing to determine whether the fees requested were reasonable.

We conclude the trial court did not err in modifying the stipulated order, but the record fails to demonstrate the trial court applied the appropriate factors to determine whether the amount of fees awarded were reasonable. Accordingly, we reverse the order, and remand for this determination.

I

Factual and Procedural Background

In September 2004, Slobodan filed a petition seeking dissolution of his 18 month marriage to Dragana, or, in the alternative, to have the marriage nullified. Dragana filed an order to show cause (OSC) requesting spousal support and attorney fees. In March 2005, the parties reached agreement on the OSC issues, memorialized in a handwritten stipulation, which the court entered as its order. The stipulation provided that Slobodan would pay Dragana $8,000 per month spousal support for six months, and pay Draganas counsel the sum of $10,000 as and for a contributive share of [Draganas] attorneys fees pendente lite until time of trial. In October 2005, Dragana filed a request that Slobodan pay an additional $76,872.52 of her attorney fees and costs. The court granted the request in part, ruling that if Dragana prevailed on the nullity phase of the trial, Slobodan would pay her $75,000.^[2] Slobodan was further ordered to place the $75,000 into a blocked interest bearing bank account, such that neither party could withdraw the money until further court order. Slobodan now appeals the courts attorney fee order.^[3]

II

Discussion

A. The March 2005 Stipulation Did Not Waive Draganas Rights to Seek Additional Pendente Lite Attorney Fees Under Family Code Section 2030, Subdivision (c)^[4]

Slobodan contends the trial court erred in ordering him to pay Dragana pendente lite attorney fees in addition to the $10,000 in fees provided in their March 2005 stipulation. We disagree.

Section 2030, subdivision (a)(1), provides: 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 partys 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 partys attorney, whatever amount is reasonably necessary for attorneys fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding. The purpose of section 2030 is to ensure that each party has adequate legal representation throughout the family law proceedings. (In re Marriage of Kelso (1998) 67 Cal.App.4th 374, 384-385 (Kelso).)

Section 2030, subdivision (c), provides: The court shall augment or modify the original award for attorneys 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. Slobodan contends this provision allowing augmentation of a fee award does not apply to the parties March 2005 stipulation. Specifically, he argues the stipulation was a settlement agreement in which he agreed to pay $10,000 of Draganas pendente lite attorney fees and $8,000 in spousal support for six months in exchange for Draganas agreement not to seek additional spousal support or attorney fees. Accordingly, Slobodan characterizes the challenged order as a reformation of the parties contract, and notes that a court may only reform a contract to make it comport with both parties understanding. In support, Slobodan cites Shupe v. Nelson (1967) 254 Cal.App.2d 693, 700, which observed: Although a court of equity may revise a written instrument to make it conform to the real agreement, it has no power to make a new contract for the parties, whether the mistake be mutual or unilateral. Because only Dragana believed the order did not prevent a further award of pendente lite attorney fees, Slobodan asserts reformation was improper. Slobodan notes that courts have routinely upheld contractual waivers of posttrial attorney fees, and argues that parties may similarly waive the protection of section 2030, subdivision (c).

Any one may waive the advantage of a law intended solely for his benefit. But a law established for a public reason cannot be contravened by a private agreement. (Civ. Code, 3513.) Even where a waiver is permitted, however, [a] party claiming waiver of favored statutory rights must prove it by clear and convincing evidence, and doubtful cases are decided against waiver. (In re Marriage of Fell (1997) 55 Cal.App.4th 1058, 1065.)

In In re Marriage of Thornton (2002) 95 Cal.App.4th 251, the husband and wife entered into the following stipulated judgment: The Court finds that Respondent [husband] shall pay to Petitioner [wife] for her support the sum of $400.00 per month as and for spousal support, payable one-half on the first and one-half on the fifteenth day of each month, commencing May 15, 1997, and continuing until further Order of the Court, death of either party, or for a period until March 1, 2003, whichever first occurs. Said spousal support shall be non-modifiable. (Id. at p. 253.) After the wife remarried, her former husband sought to terminate spousal support. The wife objected, contending the stipulated judgments directive that the support order shall be non-modifiable represented a waiver of section 4337, which provides: Except as otherwise agreed by the parties in writing, the obligation of a party under an order for the support of the other party terminates upon the death of either party or the remarriage of the other party. The appellate court rejected this argument, ruling that any written waiver of section 4337 must be specific and express. (Id. at p. 254.) The court noted that non-modifiable was not the same as non-terminable, and concluded that if the parties intended the support order to be non-terminable for any reason whatsoever, they must say so in their agreement. . . . (Ibid., citing In re Marriage of Glasser (1986) 181 Cal.App.3d 149, 151.)

With these principles in mind, we turn to the stipulation here at issue, which provides: Petitioner will pay above spousal support until September 30, 2005. The termination date of Sept[.] 30, 2005[,] is absolute and will not be modifiable under any circumstances. Spousal support may not be requested for any period after 9/30/05 nor will any court have jurisdiction to order spousal support to be paid for any period after 9/30/2005 regardless of any circumstances that may arrive & regardless of whether any motion to modify spousal support is filed before on or after 9/30/2005. [] Petitioner shall forthwith pay to counsel for Resp. the sum of $10,000 as and for a contributive share of Respondents attorneys fees pendente lite until time of trial.

The stipulation unmistakably discloses the parties intention to waive any right to modify the spousal support provision, using such terms and phrases as absolute, and will not be modifiable under any circumstances, and by purporting to divest the court of jurisdiction on the subject regardless of any circumstances that may arrive. By contrast, the provision addressing pendente lite attorney fees does not purport to waive Draganas rights under section 2030, subdivision (c), to seek additional fees. Fairly read, the fee provision provides only that Slobodan will make an immediate payment of $10,000, but neither specifically nor expressly forecloses Dragana from seeking additional pendente lite attorney fees from the court under section 2030, subdivision (c). Had the parties intended an absolute waiver of her right to seek additional fees during the litigation, they should have expressed that intention with language similar to that employed regarding the spousal support payments.

Because we conclude the stipulation did not contain a specific and express waiver of Draganas rights under section 2030, subdivision (c), we reject Slobodans argument that the trial courts action abrogated the stipulation.

B. The Trial Court Failed to Expressly Consider the Reasonableness of the Attorney Fees Awarded

A motion for attorney 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 courts 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.] [] 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.] (In re Marriage of Keech (1999) 75 Cal.App.4th 860, 866 (Keech).) In considering a fee request, The court must take into account the relative circumstances of the parties including their respective needs, income, and assets. In determining whether the fees incurred were reasonable, the court may consider various factors including the nature of the litigation, its complexity, the amount involved, the financial circumstances of the parties, the legal skill involved, and whether counsels skill and effort were wisely devoted to the expeditious disposition of the case. (Kelso, supra, 67 Cal.App.4th at p. 385.)

A court abuses its discretion if it does not consider the reasonableness of a pendente lite fee award. (Keech, supra, 75 Cal.App.4th at p. 870; see also In re Marriage of Braud (1996) 45 Cal.App.4th 797, 827, fn. 30.) Neither the attorney for a party to a dissolution action nor the attorneys client is entitled to recover, from the opposing spouse, a contributive share of whatever fees the attorney chooses to charge. Although the attorneys right to recover from the attorneys own client may be limited only by the fee agreement and ethical limitations, there are additional limitations on recovery of fees from the opposing spouse including not only that the opposing spouse has the ability to pay, but also that the fees be reasonably necessary, and that payment of the fees by the opposing spouse is just and reasonable under the relative circumstances of the respective parties. [Citations.] (Keech, at pp. 870-871.)

The fee award challenged here was drafted by the parties following an informal, unreported hearing.^[5] The courts minute order provided the following description of the discussion preceding the award: Discussions were had regarding the unequal power of the parties, the necessity of wife for fees, her over whelming need and husbands unquestioned ability to pay in order to level the playing field. As the out spouse, wife cannot even discuss if there is any community property or any basis to husbands claim of nullity, let alone the amount of any community property interest. Without discovery the Court recognizes however that Family Code [section] 2255 seemingly imposes a burden on wife to show she is innocent of fraud before an award of fees may be made, putting her at a great disadvantage in even doing the discovery necessary to fight husbands allegations of nullity. The Court also notes husbands petition is in the alterative for dissolution, that he has the burden of proof on the nullity issues and that the issues are intertwined. The Court discussed fashioning an attorney fee order that would impress both sides with the seriousness of these proceedings and to get them to think before they spend.

As Slobodan notes, the record does not suggest the court considered the reasonableness of the award. Although the court appropriately considered the relative financial situation of the parties, the minute order suggests the court based the amount of the award on an impermissible factor, i.e., an amount that would impress both sides with the seriousness of these proceedings and to get them to think before they spend. As he did at the trial court level, Slobodan challenges the reasonableness of the award, citing numerous examples of alleged overcharges and impermissible matters included in the attorney invoices submitted with Draganas fee request. Dragana responds by explaining why certain of the invoice entries were so high, and points out that Slobodans own fees were substantially higher than those she requested.

Because we give deference to the trial court in fixing the amount of attorney fees, we do not consider these arguments here, except to reject Draganas suggestion the court should use Slobodans own fees as a benchmark in determining the reasonableness of her own attorney fees. (See Keech, supra, 75 Cal.App.4th at pp. 869-870.) The major factors to be considered by a court in fixing a reasonable attorneys fee [include] the nature of the litigation, its difficulty, the amount involved, the skill required and the skill employed in handling the litigation, the attention given, the success of the attorneys efforts, his learning, his age, and his experience in the particular type of work demanded [citation]; the intricacies and importance of the litigation, the labor and the necessity for skilled legal training and ability in trying the cause, and the time consumed. [Citations.] [Citations.] [Citation.] (Id. at p. 870.) Accordingly, we reverse the fee award and remand to allow the trial court to exercise its discretion in applying the appropriate factors to determine the reasonable amount of fees it should award Dragana.

III

Disposition

The order is reversed, and the cause remanded for further proceedings in accordance with this opinion. In the interests of justice, both parties are to bear their own costs of this appeal.

ARONSON, J.

WE CONCUR:

SILLS, P. J.

FYBEL, J.

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^[1] We refer to the parties by their first names for clarity and ease of reference, and intend no disrespect. (See In re Marriage of Olsen (1994) 24 Cal.App.4th 1702, 1704, fn. 1.)

^[2] The trial court made the fee award contingent on Dragana prevailing on Slobodans nullity claim to comply with Family Code section 2255, which provides: The court may grant attorneys fees and costs in accordance with Chapter 3.5 (commencing with Section 2030) of Part 1 in proceedings to have the marriage adjudged void and in those proceedings based upon voidable marriage in which the party applying for attorney's fees and costs is found to be innocent of fraud or wrongdoing in inducing or entering into the marriage, and free from knowledge of the then existence of any prior marriage or other impediment to the contracting of the marriage for which a judgment of nullity is sought.

^[3] [A] direct appeal lies from a pendente lite attorney fees order where nothing remains for judicial determination except the issue of compliance or noncompliance with its terms. (In re Marriage of Weiss (1996) 42 Cal.App.4th 106, 119.)

^[4] All statutory references are to the Family Code unless otherwise noted.

^[5] We reject Draganas suggestion that Slobodan waived his right to challenge the fee award by participating in the orders drafting. Although the order was drafted and signed by counsel for both parties on a form stipulation, the parties lined out all references to stipulation in the form and the courts minute order expressly stated the handwritten order was not a stipulation. Slobodan filed papers opposing the award and nothing in the record suggests he abandoned his opposition to it. We therefore read the signature of Slobodans counsel on the handwritten order as an acknowledgement that it accurately reflected the courts ruling.