Cal. Prac. Guide Family L. Ch. 5-B California Practice Guide: Family Law Judge William P. Hogoboom (Ret.), Justice Donald B. King (Ret.), Contributing Authors: Judge Kenneth A. Black (Ret.), Judge Thomas Trent Lewis, Michael Asimow, Bruce E. Cooperman Chapter 5. Orders Pending Trial B. Orders Available Pending Trial d. [5:183] Statutory standards—income and need; disparity in legal access and ability to pay: The court’s decision on a request for a Fam.C. § 2030(a) fees/costs need-based award must be based upon (1) an assessment of the parties’ respective incomes and needs, (2) whether there is a disparity in the parties’ respective access to funds to retain counsel, and (3) whether one party is able to pay for legal representation of both parties. [Fam.C. § 2030(a)(1) & (2); see also Fam.C. § 3121(a) & (b) (same in independent action for exclusive custody actions), § 6344(b) (DVPA proceedings), § 7605(a) & (b) (UPA custody/visitation proceedings); and Fam.C. § 270—before making any Family Code order for payment of fees and costs, court “shall first determine that the party has or is reasonably likely to have the ability to pay”] (1) [5:183.1] Statutory disparity/ability to pay findings mandate pendente lite award: The trial court’s discretion to deny a pendente lite need-based fees/costs award or to defer ruling on the request is narrowly circumscribed: When a request for § 2030 attorney fees and costs is made, the court “shall make findings” on whether the § 2030 award “is appropriate,” whether there is “a disparity in access to funds to retain counsel,” and whether one party is able to pay for both parties’ legal representation. If the court’s findings demonstrate “disparity in access and ability to pay, the court shall make an order awarding attorney’s fees and costs.” [Fam.C. § 2030 (a)(2) (emphasis added); see also Marriage of Tharp (2010) 188 CA4th 1295, 1315, 116 CR3d 375, 391—evidence at hearing on W’s attorney fees request establishing there was “considerable disparity of income and assets” between H and W was “a strong indication” W was entitled to need-based fee award] (a) [5:183.2] Comment: The legislative amendments to Fam.C. § 2030 that took effect 1/1/11 clearly narrowed court discretion to withhold a pendente lite fees/costs award when needed to equalize litigating strengths from inception of the litigation. Pre–2011 case law on the subject of the court’s discretion in this area should be relied on cautiously, keeping in mind this most-recent legislative development. [5:183.3–183.4] Reserved. (b) [5:183.5] “Access” and “ability”: There is uncertainty regarding the “disparity in access and ability to pay” standard that should trigger a Fam.C. § 2030(a)(2) mandatory pendente lite fees/costs award. For instance: —[5:183.6] Is there the requisite “disparity” in “access” and “ability to pay” when one spouse’s legal representation (at least the up-front retainer) is financed by funds gifted or loaned from parents as compared to the other spouse who cannot afford to hire counsel and has no recourse to family for financial assistance? Keep in mind that, per Fam.C. § 270, a party cannot be ordered to pay the other party’s fees/costs absent a determination of ability to pay; it seems hard to argue there is ability to pay when the party’s parents are financing his or her legal representation unless that party has other income or assets to pay a fee order. [See Marriage of Schulze (1997) 60 CA4th 519, 531–532, 70 CR2d 488, 496–497—“Charity, once extended, is still not an entitlement. Parents are not obligated to pay the costs of their children’s divorces”] —[5:183.7] It also seems unlikely that the requisite “disparity” in “access” and “ability to pay” can be shown

solely by the fact one party has greater access to credit on a credit card as compared to the other party. (c) [5:183.8] Request for need-based pendente lite fees/costs award: See discussion at ¶ 5:192.1 ff. (2) [5:184] “Relative circumstances” yardstick: Both the making of the award and its amount must be “just and reasonable” under the parties’ “relative circumstances.” [Fam.C. 2032(a); see also Marriage of Cryer (2011) 198 CA4th 1039, 1056, 131 CR3d 424, 438—§ 2032 requires court, among other things, to engage in broad analysis of parties’ relative circumstances] In determining what is “just and reasonable,” the court must consider the need for the award to enable each party (both the fee applicant spouse and the proposed obligor spouse), to the extent practical, to have sufficient financial resources to present his or her case adequately, giving due weight to the parties’ respective circumstances as described in Fam.C. § 4320 (relevant factors in adjudicating “permanent” spousal support). [Fam.C. § 2032(b); Alan S., Jr. v. Super.Ct. (Mary T.) (2009) 172 CA4th 238, 251–252, 91 CR3d 241, 252–253; see Marriage of Keech (1999) 75 CA4th 860, 867–868, 89 CR2d 525, 529–530—pendente lite award reversed as abuse of discretion because (among other things) decision did not reflect H’s (obligor’s) ability to pay his own outstanding legal fees during the relevant period] (a) [5:184.1] Mandatory consideration of Fam.C. § 4320 factors and all other relevant circumstances: The relative circumstances that must be considered pursuant to Fam.C. § 2032(b) on the question of pendente lite attorney fees expressly include, to the extent relevant, the Fam.C. § 4320 factors governing a spousal support award. “To be sure, not all section 4320 factors will be relevant all the time ... But obviously a number of section 4320 factors will usually bear on a pendente lite fee order.” [Alan S., Jr. v. Super.Ct. (Mary T.), supra, 172 CA4th at 253, 91 CR3d at 253 (emphasis in original); see also Kevin Q. v. Lauren W. (2011) 195 CA4th 633, 644, 124 CR3d 676, 685—§ 2032, and thus § 4320 factors, apply to extent relevant in UPA cases] 1) [5:184.2] Expenses: It is error to ignore each party’s expenses (as shown on the income and expense declarations) when adjudicating pendente lite attorney fees. Party expenses will always be relevant to that issue pursuant to Fam.C. § 2032(b). [Alan S., Jr. v. Super.Ct. (Mary T.), supra, 172 CA4th at 253, 91 CR3d at 253] 2) [5:184.3] New mate income: Although new mate income ordinarily cannot be considered in connection with child support (¶ 6:270 ff.), it is not statutorily irrelevant to pendente lite attorney fee orders. “The expansive language of section 2032—the ‘relevant circumstances of the respective parties’—also shows it is certainly relevant for fee awards.” [Alan S., Jr. v. Super.Ct. (Mary T.), supra, 172 CA4th at 255, 91 CR3d at 255] Cross-refer: The § 4320 factors and other relevant circumstances that must be considered when making a Fam.C. § 2032(b) need-based pendente lite fees/costs award are discussed further at ¶ 14:155 ff. [5:184.4–184.9] Reserved. (b) [5:184.10] “Reasonably necessary” limitation: Although application of the relative circumstances standard (above) may warrant a pendente lite fees and costs award, the amount is limited by a “reasonably necessary” standard (Fam.C. § 2030(a)(1), ¶ 5:182). An award measured summarily by what the applicant has been billed or what his or her attorney presently is owed is an abuse of discretion if it does not reflect consideration of whether the fees allegedly incurred were reasonably necessary. [Alan S., Jr. v. Super.Ct. (Mary T.), supra, 172 CA4th at 255, 91 CR3d at 255 (citing text); Marriage of Keech, supra, 75 CA4th at 867–869, 89 CR2d at 530–531; see also Kevin Q. v. Lauren W., supra, 195 CA4th at 645, 124 CR3d at 686—unreasonable fee request denied despite fact neither party acted in bad faith or unreasonably in prosecuting or defending action] (c) [5:184.11] Manner/timing of payments as factor: The total amount of a fee-shifting order may be appropriate in light of the parties’ “relative circumstances” (parties’ income disparities and obligor’s greater earning capacity, etc.), yet an abuse of discretion if the timing or method of the payment obligation (whether lumpsum or by installments) puts an unreasonable burden on the obligor in light of his or her own cash-flow situation (support obligations, personal living expenses, and own attorney fees). Hence, where necessary in light of the parties’ relative circumstances (including the obligor’s ability to pay), the court must allow the obligor to satisfy the pendente lite fee order in manageable installments consistent with the

income he or she has after paying other legitimate expenses. [Marriage of Keech, supra, 75 CA4th at 868, 89 CR2d at 530–531; see Alan S., Jr. v. Super.Ct. (Mary T.), supra, 172 CA4th at 258, 91 CR3d at 257 (citing text) (observing that order to pay $9,000 pendente lite fee award in $300 monthly installments “seems, on first impression on this admittedly incomplete record, reasonable under the circumstances” but reversing order because trial court failed to consider all relevant circumstances); see also ¶ 14:167] (d) Application • [5:184.12] In determining the parties’ “relative circumstances,” a trial court erred by looking solely at their respective incomes and failing to consider H’s monthly deficit financed by credit cards, the parties’ total assets (including whether either had equity in their home), H’s inability to afford to visit his children, the fact that H had already spent all his liquid assets ($25,000) on an attorney, H’s $1,800 monthly child support payments, and each party’s new mate or “significant other” income. [Alan S., Jr. v. Super.Ct. (Mary T.), supra, 172 CA4th at 242–243, 255, 91 CR3d at 244–245, 254–255—in making postjudgment pendente lite fee award against H, trial court erroneously looked only at H’s relatively higher gross annual income and failed to consider applicable § 4320 factors] Moreover, there was strong indication in the record that the attorney fees incurred by W were not “reasonably necessary”; among other things, W had overlitigated in causing four hearings on the issue of H’s claimed hardship deduction based on the birth of his new child. [Alan S., Jr. v. Super.Ct. (Mary T.), supra, 172 CA4th at 255–256, 91 CR3d at 255] (3) [5:185] Applicant’s financial resources not disqualifying; other relevant factors: The fact the applicant has resources from which to pay his or her own attorney fees “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” to be considered in determining how to equitably apportion the overall litigation costs between the parties “under their relative circumstances.” [Fam.C. § 2032(b) (emphasis added); Marriage of Olson (1993) 14 CA4th 1, 14, 17 CR2d 480, 490; see Marriage of O’Connor (1997) 59 CA4th 877, 884, 69 CR2d 480, 484—no abuse of discretion in awarding H $450,000 pendente lite fees (following prior $250,000 pendente lite fee award to H) despite his $2 million in assets where W had at least $40 million in liquid assets and disso litigation had already run up over $3 million in fees and costs] Other relevant factors include the complexity of the issues, the nature and extent of the contested issues, the amount of time involved, the skill required to competently handle the case, the litigation costs already incurred and expected to be incurred through trial, and whether counsel’s skill and effort were “wisely devoted to the expeditious disposition of the case.” When the court is informed of the extent and nature of the services rendered, it may also employ its own knowledge and experience in fixing the reasonable value of those services. [Marriage of Keech (1999) 75 CA4th 860, 870, 89 CR2d 525, 531–532; see Marriage of Dick (1993) 15 CA4th 144, 167–168, 18 CR2d 743, 756] => [5:185.1] PRACTICE POINTER: The manner in which the pertinent information is brought before the court (through declarations) is extremely important. Broadly, the applicant’s attorney must submit a declaration that makes a factual showing as to his or her hourly rates, why those rates are justified (demonstrating counsel’s experience and expertise in this area, etc.), how much and what work needs to be done and the reasons therefor, and why the requested amount is “just and reasonable” under the parties’ relative circumstances—including the obligor’s ability to pay. For further discussion of the evidence and proof considerations, see ¶ 14:200 ff. (4) [5:185.2] Application to pro per award for hiring counsel? It is not clear how the requirements of Fam.C. § 2032 and Keech, supra (declaration from the attorney regarding his or her experience, hourly rates and view of what work is “reasonably necessary”) can be met where the fee award is sought by a pro per party before retaining counsel under the authority of Fam.C. § 2030(a)(2) (¶ 5:182.1). Prudence would dictate, however, that the attorney whom the pro per wants to hire prepare a declaration satisfying the Keech requirements to the extent possible. (5) [5:186] Equalizing goal: The goal is to equalize litigation resources. Thus, in effect, the court may make a pendente lite fees and costs order that might impair the payor’s ability to obtain legal representation if doing so would nonetheless “equalize” the parties’ abilities to finance the litigation. But the court may not remedy the applicant’s alleged inability to finance the litigation by making a § 2030(a) award that would leave the payor with relatively unequal access to legal representation (see ¶ 5:184). I.e., § 2030(a) contemplates that, in order to equalize litigation resources, both parties might have to give something up! [See Alan S., Jr. v. Super.Ct. (Mary T.) (2009)

172 CA4th 238, 242–243, 252–253, 91 CR3d 241, 244–245, 252–253 (reversing $9,000 pendente lite attorney fee order against H that improperly deprived him of ability to obtain counsel of his own)] (a) [5:186.1] Compare—improper to fix award on basis of obligor’s own fee liability: The goal of equalizing litigation resources does not mean the court should fix a pendente lite fee order on the basis of what the obligor has paid or will pay his or her own attorney. That is not the standard by which the court is to determine the amount of the award. The court must consider the factors noted above (¶ 5:185). [Marriage of Keech (1999) 75 CA4th 860, 869–870, 89 CR2d 525, 531] [5:186.2–186.4] Reserved. (6) [5:186.5] No fixed measure: The statutory scheme does not endorse any “fixed measure or percentage.” Quite the contrary, by adopting a “relative circumstances” yardstick (¶ 5:184), the statutory scheme “could not be more clear in eschewing any notion that a numerical standard should be applied.” [Marriage of O’Connor, supra, 59 CA4th at 883, 69 CR2d at 484] (7) [5:187] Trial outcome irrelevant: A relative circumstances (or “need-based”) award does not turn on whether the applicant spouse “prevails” at trial. Indeed, the outcome at trial has no bearing on pendente lite attorney fees and costs jurisdiction. [Marriage of Siller (1986) 187 CA3d 36, 44, 231 CR 757, 761—“the statute’s terms unmistakably authorize fee awards long before any party finally prevails in the litigation”] => [5:187.1] PRACTICE POINTER: By the same token, nothing in the law prevents the court from revisiting the allocation of a pendente lite fees/costs award after trial in the case. Thus, payor spouses should consider requesting that any pendente lite fees/costs order be made without prejudice as to its ultimate “chargeability”— e.g., that it ultimately be charged against the community estate or the payee spouse’s share of the community estate. [See Marriage of Schnabel (1994) 30 CA4th 747, 752, 36 CR2d 682, 684; and ¶ 14:221] (a) [5:187.2] Compare—“prevailing party” limitation in DVPA proceedings: Fam.C. § 6344 limits fees and costs awards in DVPA proceedings to the prevailing party. [See Fam.C. § 6344(a) & (b)] (b) [5:187.3] Compare—waiver of pendente lite fees based on “prevailing party” limitation in MSA: At least where custody and support issues are not involved, courts may dismiss requests for pendente lite needbased attorney fees upon finding the parties waived their rights thereto (either expressly or implicitly) in their MSA. And this is so even if the MSA is “inequitable on its face,” so long as each party knowingly and willingly entered into it. [See Marriage of Guilardi (2011) 200 CA4th 770, 773–776, 132 CR3d 798, 800–803—MSA implicitly waived any claims other than those available to prevailing party in action related thereto, making § 2030 need-based pendente lite fee award unavailable to W who unsuccessfully challenged MSA’s validity] (8) [5:188] Exercise of discretion required: Generally, the decision on a § 2030 pendente lite fees and costs request lies within the trial court’s discretion. But this is not an open-ended discretion: The court must exercise that discretion along statutory lines—i.e., in accordance with the §§ 2030/2032 standards (respective incomes and need; and, in particular, adherence to the mandate for a § 2030 need-based award when disparity in access and ability to pay findings are made (¶ 5:183.1)). [Marriage of Tharp (2010) 188 CA4th 1295, 1313–1314, 116 CR3d 375, 390—court abused its discretion in denying W’s § 2030 request “by affirmatively refusing and failing to exercise that discretion”; Marriage of Hatch (1985) 169 CA3d 1213, 1219, 215 CR 789, 792 (citing text); see Marriage of Keech (1999) 75 CA4th 860, 866– 869, 89 CR2d 525, 529–531—pendente lite fees/costs award reversed as abuse of discretion where record did not reflect trial court’s consideration of appropriate statutory factors] • [5:188.1] It follows, therefore, that a family court abuses its discretion by summarily denying a § 2030 award pursuant to an “unwritten” court rule or policy not to make pendente lite fees and costs orders. [Marriage of Hatch, supra, 169 CA3d at 1219–1220, 215 CR at 793; see also Marriage of Green (1989) 213 CA3d 14, 27, 261 CR 294, 301] • [5:188.2] Likewise, it is a reversible abuse of discretion to refuse to consider time and billing records from the applicant’s attorney or to conduct any hearing on the evidence, and to refuse to make any needs-based analysis under the statutory factors, instead summarily denying the § 2030 fees/costs request. This scenario demonstrates “an absolute failure of the family court to perform its official duties.” [Marriage of Tharp, supra, 188 CA4th at

1313–1314, 116 CR3d at 390–391] • [5:188.3] On the other hand, the family court has no duty sua sponte to uncover omissions, inconsistencies or falsehoods in the parties’ evidentiary support (e.g., in their Income and Expense Declarations). Indeed, each party is responsible for scrutinizing the other’s evidence and bringing any deficiencies to the court’s attention. [See Kevin Q. v. Lauren W. (2011) 195 CA4th 633, 638, 124 CR3d 676, 681] (9) [5:189] Compare—Fam.C. § 271 sanctions award: At any time during the pendency of a family law action, the trial court has authority to assess fees and costs against a party as a sanction for the party’s or attorney’s uncooperative conduct frustrating the policy of the law to promote settlement and reduce litigation costs. Such a sanction award does not turn on the applicant spouse’s “financial need”; nor must the applicant suffer any actual injury as a prerequisite to a § 271 fees as sanctions award. [Fam.C. § 271; see also Marriage of Fong (2011) 193 CA4th 278, 289–293, 123 CR3d 260, 269–271—§ 271 sanctions totaling $100,000 properly assessed against H for his uncooperative conduct even though W also engaged in uncooperative conduct; Marriage of Tharp, supra, 188 CA4th at 1316–1318, 116 CR3d at 392–394—abuse of discretion to refuse to assess § 271 sanctions against H based on his prolonged history of thwarting W’s legitimate discovery requests and numerous motions to compel that W was forced to bring; Marriage of Feldman (2007) 153 CA4th 1470, 1495, 64 CR3d 29, 48—no requirement that court wait until end of lawsuit to impose § 271 sanctions] (10) [5:189.1] Compare—sanctions for breach of statutory fiduciary duty of disclosure: In an appropriate case, the court may also impose pendente lite monetary sanctions for a party’s violation of the Fam.C. § 2100 et seq. disclosure obligations. [Fam.C. § 2107(c)—sanctions shall be imposed “in an amount to deter repetition of the conduct or comparable conduct”; see Marriage of Feldman, supra, 153 CA4th at 1479–1480, 64 CR3d at 36–37— harm to other party not a prerequisite to § 2107(c) sanctions; and further discussion at ¶ 11:100 ff.] Indeed, § 2107(c) “requires a family court to impose monetary sanctions and award attorney fees if a party fails to comply with any portion of the Family Code that addresses a spouse’s fiduciary duty of disclosure.” [Marriage of Tharp, supra, 188 CA4th at 1318–1320, 116 CR3d at 394–395 (emphasis in original)—abuse of discretion to deny § 2107(c) sanctions against H where “overwhelming evidence” showed he breached his fiduciary obligation to fully and accurately report income, assets and obligations; Marriage of Fong, supra, 193 CA4th at 289, 123 CR3d at 268—parties entitled to seek § 2107(c) monetary sanctions only if they have already served their disclosure declarations; and see further discussion at ¶ 11:100 ff.] Cross-refer: The standards and guidelines for assessing “need based” attorney fees and costs awards and Family Code sanction awards are discussed in greater detail in Ch. 14.