Filed 8/17/22 Marriage of Jensen CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Following a custody hearing, the trial court ordered appellant Heather Jensen to pay respondent Gregory Jensen’s attorney’s fees and costs. On appeal, Heather[1] argues the trial court abused its discretion by awarding the fees under Family Code section 2030, which is intended to equalize access to counsel for family court litigants by ordering one party to pay “whatever amount is reasonably necessary for attorney’s fees” for the other. (Fam. Code, § 2030.) She contends that because any disparity in access to financial resources to pay for counsel favored Gregory, the trial court was precluded from ordering her to pay his attorney’s fees under section 2030’s needs-based provision, and that her conduct in the custody proceeding did not justify the trial court’s award. We agree that the trial court abused its discretion and will reverse the order.

1. Factual and Procedural Background

In December 2017, the trial court entered judgment dissolving Gregory and Heather’s marriage. In doing so, the court adopted the parties’ marital settlement agreement, which awarded the parties joint physical and legal custody of their minor son, who has special needs. As the parties had “approximately equal” physical custody, Gregory agreed to pay Heather $2,500 per month in base child support, plus a percentage of his bonus income. The calculation was based on Gregory’s base annual salary of $290,000, and Heather’s lack of employment. On the same basis, the parties set Gregory’s spousal support obligation at $6,700 per month for four years, reduced to $5,500 per month for seven years thereafter, and then to $4,300 per month payable until Gregory turned 65, with the understanding Heather would not be obligated to seek employment. The parties equally divided their community assets, such that each party received approximately $775,000 from the community estate.

Two years later, Gregory filed an ex parte request seeking emergency custody and visitation orders, based on an investigation conducted by Child Protective Services concerning the condition of Heather’s home and vehicle. The trial court awarded Gregory temporary sole legal and physical custody of the child, granted Heather supervised visitation and required her to undergo a psychological evaluation. The court then set child support at zero based on the change in custody. Although the custody evaluator initially recommended that Heather have unsupervised visitation, the trial court ordered Heather to hire a therapeutic supervisor for one hour weekly supervised visits with the child, citing concerns for the child’s safety.

Heather requested a trial on the custody evaluator’s recommendations. At an interim hearing, the court ordered that a visitation supervisor conduct monthly home safety checks at Heather’s home to determine if it was safe for Heather to have visits with the child at her home. Heather then filed an ex parte request with the trial court asking that she be permitted to record the supervised visits and to forego wearing a mask, along with other requests.[2] Heather asserted that she filed her motion because Gregory was not complying with existing custody and visitation orders. Gregory asserted Heather was revisiting requests that had been the subject of previous court orders. The trial court confirmed that Heather had previously asked to record the supervised visits and to forego wearing a mask, and denied her requests. Prior to the trial on the custody evaluator’s recommendations, the custody evaluator modified his position and recommended that Heather’s visits with the child be supervised. He also recommended that Heather not have contact with the son’s medical providers due to her disruptive behavior.

After the parties met and conferred, the issues presented to the court at the custody hearing were the holiday visitation schedule, Heather’s right to access the child’s medical records and doctors, the need for home checks at Heather’s house, and each party’s request for attorney’s fees and costs. At the conclusion of the hearing, the trial court denied Heather’s request for attorney’s fees and costs as Gregory was unemployed at that time, and the court determined that the “hearing and fees generated by [the hearing] were largely unnecessary.” The court also denied Gregory’s oral request for attorney’s fees as noncompliant with written notice requirements.

Gregory then filed a request for orders seeking $56,810 in attorney’s fees and costs from Heather, to be paid by suspension of his spousal support obligation. He alleged that he incurred the fees “unnecessarily” due to “Heather’s repeated decisions to oppose court orders and indicated rulings and her determination to circumvent the clear path of therapeutic supervision and safe home checks provided by the Court.” He attached the Judicial Council forms required by California Rules of Court, rule 5.427, to seek attorney’s fees and costs “based on financial need.” (Rule 5.427(a) & (b).)[3]

In the Income and Expense Declaration (I.E.D.) he filed with his request, Gregory indicated that he had been unemployed since September 2, 2020. He reported that his income had steadily decreased since 2017, from $400,000 per year in 2017, to $150,000 in 2018 and $175,000 in 2019. In 2020 his pay was reduced to $140,000 due to the COVID-19 pandemic, before he was laid off in September 2020. Gregory stated that he had $279 in cash and checking accounts, and $987,621 in other real and personal property. He claimed $11,175 in monthly expenses, which included $1,250 per month in charitable contributions. He had paid his attorneys approximately $96,000 at that time, from his savings and a personal loan.

Gregory argued that Heather’s conduct required him to incur unnecessary fees and costs. The 2019 CPS investigation was the second time Heather had been investigated by CPS. The first investigation in 2018, was closed based on Heather’s agreement to clean her home and submit to monthly home safety checks. Her failure to comply with those conditions, and the subsequent second referral to CPS, required Gregory to seek the May 2019 ex parte orders. Heather did not have a home safety check completed prior to the October 2020 hearing because she refused to pay the fees, and the inspection was not yet completed. The court-ordered therapeutic supervisor was not yet in place. Gregory argued that rather than follow the path the trial court had laid forth to normalize visitation, Heather instead chose to pursue unnecessary litigation.

Heather opposed Gregory’s request, arguing that she could not afford to pay Gregory’s attorney’s fees and costs, but he could afford to pay both his own fees and hers. She claimed Gregory misrepresented his income and employment to the court, as he had accepted a lucrative new employment offer prior to the custody hearing. Heather argued that her only source of funds to pay fees and costs was court-ordered spousal support, and the liquidation of her half of the community assets. She noted that she was bearing the expense of visitation monitoring fees, as well as the cost to pay a professional home organizer to help her childproof her home to the visitation supervisor’s specifications.

Heather further argued that Gregory created the need to incur attorney’s fees and costs by filing the ex parte custody request, and by refusing to accept the custody evaluator’s original recommendation that Heather have unsupervised visits with the parties’ son. She contended that it was necessary to hold an evidentiary hearing regarding the expert’s recommendations to receive due process and present her evidence. Heather claimed that the visitation supervisor was biased against her. Heather denied that she was violating court orders, contending she filed an ex parte request before the custody hearing because Gregory violated the trial court’s previous orders.

Gregory argued that the Family Code allowed for attorney’s fees not only based on financial need, but also as sanctions for bringing unnecessary litigation. He did not cite the Family Code’s sanction provision, section 271.[4] He requested $62,656.10 in attorney’s fees and costs. Gregory provided an updated I.E.D., confirming that he had obtained new employment on November 20, 2020, earning $22,083 per month. His average monthly income had increased since his November 2020 I.E.D.; he listed it as $10,595 from salary, $4,167 from commissions or bonuses, $186 from unemployment compensation, and $512 from dividends/interest. The value of Gregory’s assets had increased in the three months since his last I.E.D. He listed $10,762 in cash and checking accounts, and just under $1.1 million in other property assets. Gregory’s monthly expenses remained the same. The amount he had paid his attorneys increased to $102,812.42, with a balance of $10,523.10 still owed.

At the hearing, Heather argued that Gregory’s request for attorney’s fees was a “concealed Family Code Section 271 request.”[5] Because Gregory had not requested such sanctions in his motion, and explicitly raised section 271 for the first time in the proposed order he submitted to the court the day before the hearing, she argued a sanctions request was not properly before the court.

The trial court granted Gregory’s request for attorney’s fees, adopting the proposed order he had submitted prior to the hearing with certain modifications. The court noted that Heather “needed ‘clear guidance’ and it was ‘unfortunate that she was being represented by a law firm willing to misrepresent the law and facts[.]’ ” It identified “several issues, causing [Gregory] to incur further attorney’s fees,” including: Heather’s failure to prepare for the home safety check; the condition of her home at the initial home safety check and her initial refusal to allow the visitation supervisor full access to the home; Heather’s attempts to revert to the “old negotiated parenting plan,” despite the intervening CPS investigation and court orders; the discovery Heather undertook in response to the attorney’s fees request, which required Gregory to provide 1,607 pages of documents; Heather’s decision to challenge the supervisor regarding compliance with court orders and the visitation protocols, including her continued demands to record the visitations; the ultimate termination of the visitation contract because of Heather’s noncompliance; and her failure to return the family dogs to the parties’ son.

The court indicated that it had considered the factors enumerated in section 4320. It found that Gregory’s “attorney fees and costs are reasonable and were incurred to obtain and maintain court orders to protect [the child] and to respond to [Heather’s] failures to comply with court orders, to accept Dr. Katz’[s] updated recommendations, and refusal to attempt to resolve issues directly with [Gregory].” The court also found that Heather “continues to engage in obstreperous and litigious behavior which causes [Gregory] to unnecessarily incur attorney’s fees and costs and she has not followed the court’s admonition to work with Petitioner to resolve issues and avoid unnecessary litigation and attorney’s fees and costs.”

With respect to the parties’ relative ability to pay fees, the court found that Heather had the ability to pay Gregory’s attorney’s fees and costs and to forego monthly spousal support payments based on her banked income and assets. The court found there was a disparity in the parties’ incomes due to Gregory’s new employment, but that Heather had financial resources that allowed her to pay Gregory’s fees and costs and her own. The trial court determined that if it did not grant Gregory’s attorney’s fees request, it was likely Heather’s “continuing obstreperous behavior will continue to cause [Gregory] to further incur attorney’s fees and costs.” Quoting the section 271 attorney’s fees sanction statute, the court stated that, “[Heather’s] conduct frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation of the parties and attorneys. An award of attorney’s fees and costs pursuant to Family Code section 271(a) is in the nature of a sanction.” The trial court struck Gregory’s proposed finding which addressed what the court would consider in making an award under section 271. The court ordered Heather to pay Gregory $62,656.10, payable by cashier’s check, and struck the proposed order granting an additional sum in sanctions under section 271.

Heather timely filed a notice of appeal from the order, which is an appealable post-judgment order. (Code Civ. Proc., § 904.1, subd. (a)(2).)

2. Discussion

1. The Trial Court Abused Its Discretion by Awarding Attorney’s Fees under Section 2030

Heather contends that the trial court abused its discretion by incorrectly applying the law of needs-based attorney’s fees under section 2030 to emphasize her litigation conduct instead of the relative financial resources of the parties. She further argues that the trial court abused its discretion because the respective financial circumstances of the parties precluded an order that she pay fees. She asserts that the trial court’s purpose was to punish her through the fees order and to deplete her resources to prevent her from adequately representing her position in future litigation. We conclude that the trial court abused its discretion by granting the fees request in contravention of the stated purpose of section 2030.

We commence by observing that Gregory provided timely notice of a request for orders for attorney’s fees and costs under sections 2030 and 2032 and not under section 271, which allows the trial court to order attorney’s fees as a sanction. He utilized the forms referenced in rule 5.427 to seek “attorney’s fees and costs based on financial need, as described in Family Code sections 2030, 2032, 3121, 3557, and 7605.” (Rule 5.427(a).) It was only the day before the hearing that he submitted a proposed order to the court that included a reference to section 271. This did not satisfy the requirement set forth in section 271, subdivision (b) that states an award of attorney’s fees as a sanction shall be imposed only after notice and opportunity to be heard. To obtain such an order, a party must specify in the request that the fees are sought under section 271 so that the opposing party may prepare for the resulting hearing. (In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1528; Levy v. Blum (2001) 92 Cal.App.4th 625, 628.) “In addition, the notice provided must specify the authority relied upon and must advise of the specific grounds and conduct on which sanctions are to be based.” (Parker v. Harbert (2012) 212 Cal.App.4th 1172, 1178, citing In re Marriage of Quinlan (1989) 209 Cal.App.3d 1417, 1421-1422.) Indeed, the trial court struck Gregory’s proposed findings in the order relevant to the issuance of fees as a sanction under section 271, and awarded the fees under section 2030. We thus solely consider whether the trial court properly issued an order for needs-based attorney’s fees.

We review an order granting fees and costs under section 2030 for abuse of discretion and will not reverse the trial court’s order absent a showing that no judge could reasonably have made the order, favorably viewing all evidence in support of the order and upholding findings of fact that are supported by substantial evidence. (In re Schleich (2017) 8 Cal.App.5th 267, 295.) That a different result might have also been “reasonable” does not require this court to reverse the trial court’s order. We consider only whether the trial court’s result was unreasonable. (See In re Marriage of O’Connor (1997) 59 Cal.App.4th 877, 884.) However, in exercising its discretion, the trial court must follow established legal principles, and the failure to do so is itself an abuse of discretion. (See In re Marriage of Morton (2018) 27 Cal.App.5th 1025, 1039 (Morton); In re Marriage of Alter (2009) 171 Cal.App.4th 718, 721.)

Section 2030 requires the trial court to ensure that each party in a dissolution proceeding has access to legal representation “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)(1).) When a party requests fees under section 2030, the court must make express findings on “whether an award of attorney’s fees and costs under this section is appropriate, whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for legal representation of both parties.” (§ 2030, subd. (a)(2); Morton, supra, 27 Cal.App.5th at p. 1050.)

In Morton, the appellate court made clear that amendments to section 2030, subdivision (a)(2), enacted in 2010, mandate that the trial court make three explicit findings when ruling on a request for fees and costs: “[1] whether an award of attorney’s fees and costs . . . is appropriate, [2] whether there is a disparity in access to funds to retain counsel, and [3] whether one party is able to pay for legal representation of both parties.” (§ 2030, subd. (a)(2); Morton, supra, 27 Cal.App.5th at p. 1050.) The appellate court found that the trial court erred because it denied wife’s request for attorney’s fees under section 2030 without expressly finding whether there was a disparity in access to funds to retain counsel, as well as whether one party was able to pay for legal representation of both parties. Based on its interpretation of section 2030, subdivision (a)(2), the court concluded that where the findings demonstrate a disparity in access to funds to pay for counsel and that one party has the financial ability to pay for the legal representation of both, the court must grant a needs-based attorney’s fees request. (Morton, at pp. 1053-1054.)

The trial court here made express findings under section 2030, subdivision (a)(2). It found that Gregory’s fees and costs were reasonable and incurred to obtain and maintain court orders necessary to protect the parties’ son and to respond to Heather’s litigation conduct. The court recognized a disparity in the parties’ incomes that favored Gregory due to his recent employment with Adobe. It then determined that Heather had financial resources from which she could pay both Gregory’s fees and costs and her own. Although not required to make explicit findings under section 4320, which provides a non-exclusive list of factors that aid the court in determining appropriate spousal support awards as well as attorney’s fees, the court made clear that it considered those factors.

While the trial court did not err by failing to make findings, as occurred in Morton, we conclude that the trial court erred as a matter of law because it awarded attorney’s fees to Gregory despite its finding that there was a disparity in the parties’ income and financial resources that favored him. “The purpose of section 2030 is to ensure parity. ‘The idea is that both sides should have the opportunity to retain counsel, not just (as is usually the case) only the party with greater financial strength.’ [Citation.]” (In re Marriage of Cryer (2011) 198 Cal.App.4th 1039, 1056.) “[T]he trial court is empowered to award fees and costs between the parties based on their relative circumstances in order to ensure parity of legal representation in the action. It is entitled to take into consideration the need for the award to enable each party to have sufficient financial resources to present his or her case adequately.” (In re Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 974 (Falcone & Fyke).) The purpose “is not the redistribution of money from the greater income party to the lesser income party,” but rather “parity: a fair hearing with two sides equally represented.” (Alan S. v. Superior Court (2009) 172 Cal.App.4th 238, 251 (Alan S.).)

Under section 2032 the court must consider what is “just and reasonable under the relative circumstances of the respective parties,” (§ 2032, subd. (a)) as well as “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.” (§ 2032, subd. (b); In re Marriage of Dietz (2009) 176 Cal.App.4th 387, 406.) The trial court’s task is “to apportion the overall cost of the litigation equitably between the parties under their relative circumstances.” (§ 2032, subd. (b).) In short, the intent of sections 2030 and 2032 is to award fees to a requesting party who has a demonstrated financial need so that both parties can fairly litigate their family law case.

That section 2032, subdivision (b) directs the trial court to consider the factors listed in section 4320 when determining whether to grant a fees request is further evidence that the statute is designed to mitigate the economic disparity between the parties by ordering the party with superior financial strength to pay attorney’s fees for the other. Section 4320 lists factors the trial court considers to determine what amount of spousal support should be given to a spouse in a dissolution action. While not all section 4320 factors are relevant in every request for attorney’s fees, “obviously a number of section 4320 factors will usually bear on a pendente lite fee order. These . . . include earning capacity (subd. (a)); ability to pay, taking into account such things as assets and standard of living (subd. (c)); respective needs (subd. (d)); obligations and assets (subd. (e)); age and health (subd. (h)); and the overall balance of hardships (subd. (k)).” (Alan S., supra, 172 Cal App.4th at p. 253.) By requiring the trial court to do a nuanced assessment of the economic status of the parties, section 4320 assists the court when it determines whether a grant of attorney’s fees is necessary to ensure financial parity for each party to retain counsel.

Here, the trial court found that Gregory did not suffer from any financial deficiency, instead concluding that “there is a disparity in the parties’ respective income due to [Gregory’s] new employment,” from which we infer that the court found that Gregory had greater means than Heather to pay attorney’s fees. The court nonetheless justified the award: “However, the court also notes that [Heather] has financial resources which will enable [her] to pay [Gregory’s] and her attorney’s fees and costs.” The court further found that “if there is no award of attorney’s fees and costs to [Gregory,] the likelihood of [Heather’s] continuing obstreperous behavior will continue to cause [Gregory] to further incur attorney’s fees and costs.” The court thus determined that although Gregory did not suffer from any disparity in access to funds to hire counsel compared to Heather, and in fact was better positioned to pay the fees, because Heather needed to be deterred from future “obstreperous behavior,” and had the ability to pay her own fees and Gregory’s attorney’s fees and costs, the request for section 2030 fees should be granted.

The purpose of an attorney’s fees order under section 2030, subdivision (a)(1) is to “ensure that each party has access to legal representation . . . to preserve each party’s rights.” This is effected by “ordering, if necessary based on the income and needs assessments, one party . . . to pay to the other party . . . 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)(1).) Because the stated intent of section 2030 is to establish sufficient economic parity for both parties to retain counsel (at least where feasible), we conclude that an award of fees to a party who does not suffer from a disparity in access to funds to hire counsel contravenes the statute’s purpose. If the requesting party has no need, one of three the prerequisites set forth in section 2030, subdivision (a)(2), and as described in Morton, supra, for the grant of a needs-based fee award is not satisfied.

Here the trial court explicitly found that a fees award was appropriate and that Heather was able to pay for legal representation of both parties, satisfying two of the three requirements set forth in section 2030, subdivision (a)(2). But because the court expressly found that Gregory did not suffer from a disparity in access to funds to hire counsel, the third element necessary for an order of needs-based fees was not established. The trial court therefore abused its discretion when it ordered that Heather pay in excess of $62,000 of Gregory’s attorney’s fees.

Gregory argues that “[f]inancial 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. (b); Falcone & Fyke, supra, 203 Cal.App.4th at p. 975.) The trial court also may consider the parties’ trial tactics in determining whether to order one party to pay the other’s fees and costs. (In re Marriage of Sharples (2014) 223 Cal.App.4th 160, 165; Falcone & Fyke, supra, at pp. 975-977.) He thus argues that the trial court properly exercised its discretion by ordering Heather to pay his attorney’s fees based on her litigation conduct.

We agree with Gregory that section 2032, subdivision (b) grants the trial court discretion to consider non-economic factors, including litigation conduct, when determining an appropriate attorney’s fees award. However, those authorities that have addressed trial tactics as relevant to the determination of appropriate attorney’s fees under section 2030 are inapposite here as none address an award of fees where the moving party has not demonstrated a need for funds to retain counsel. (In re Marriage of Dick (1993) 15 Cal.App.4th 144, 166-168 [$750,000 award to wife affirmed under predecessor to section 2032 because record “reveals a case of stunning complexity, occasioned, for the most part, by husband’s intransigence”]; Falcone & Fyke, supra, 203 Cal.App.4th at pp. 975-977 [denial of attorney’s fees request affirmed based on wife’s tactics such as repeated last-minute oral requests for attorney’s fees and other “questionable conduct during litigation”]; In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1314-1315 [order denying wife’s attorney’s fees motion reversed for failure to conduct needs-based analysis where record demonstrated “there was a considerable disparity of income and assets” between husband and wife and “a strong indication [wife] was entitled to a needs-based award of additional attorney fees.”].)

We conclude that the trial court abused its discretion when it ordered Heather to pay Gregory’s attorney’s fees under section 2030, subdivision (a)(2).[6]

3. Disposition

The February 24, 2021 attorney’s fees order is reversed.

_______________________________

Greenwood, P. J.

WE CONCUR:

______________________________________

Grover, J.

______________________________________

Lie, J.

Jensen v. Jensen

H048948

[1] As is customary in family law proceedings, we use the parties’ first names for clarity.

[2] The trial court proceedings occurred in 2020 during the COVID-19 pandemic.

[3] Undesignated references to rules of court are to the California Rules of Court.

[4] Family Code section 271 provides “. . .the court may base an award of attorney’s fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. An award of attorney’s fees and costs pursuant to this section is in the nature of a sanction.”

[5] Undesignated statutory references are to the Family Code unless otherwise indicated.

[6] We note that the court itemized Heather’s trial tactics at length in its order, and quoted the relevant language from section 271, which authorizes the award of attorney’s fees as a sanction. We express no opinion on the merits of a section 271 motion for sanctions. Because we determine that the trial court abused its discretion as a matter of law, we do not reach Heather’s contentions regarding the sufficiency of the evidence supporting the trial court’s findings.