Opinion
D075369
09-12-2019
In re the Marriage of KARI and TODD C. BUSTILLO. KARI BUSTILLO, Respondent, v. TODD C. BUSTILLO, Appellant.
Todd C. Bustillo, in pro per., for Appellant. Michel & Rhyne and Karen A. Rhyne for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 09D010394) APPEAL from a judgment and an order of the Superior Court of Orange County, Michael J. Naughton and Lon F. Hurwitz, Judges. Affirmed in part, reversed in part. Todd C. Bustillo, in pro per., for Appellant. Michel & Rhyne and Karen A. Rhyne for Respondent.
Todd C. Bustillo (Todd), appearing in propria persona, appeals from a judgment and an order after hearing, both entered on January 10, 2017, made by the family law court on the issue of allocation of spousal and child support, and the retroactivity thereof, and from a $10,000 award of attorney fees to Kari Bustillo (Kari). As we explain, we affirm the judgment and order after hearing, but reverse the award of attorney fees.
We use first names for ease of reference and clarity.
Todd also separately appealed a court order finding that a $26,000 gift he made to his parents shortly before he and his former wife separated was an omitted community asset under Family Code section 2556. (See In re Marriage of Kari and Todd Bustillo (D075354) [nonpub. opn.] (Bustillo II).) Bustillo II is being filed concurrently with the instant case, which we refer to as Bustillo III. As discussed post, Bustillo I was decided by Division 3 of this court on May 3, 2013. (See In re Marriage of Kari and Todd Bustillo (May 3, 2013, G046725) 2013 WL 1850769 [nonpub. opn.].) The Bustillo I court affirmed the denial of Kari's motion to set aside a judgment of dissolution she and Todd executed on April 8, 2011, with respect to division of property only.
In her brief, Kari argued that Todd only appealed from the January 10 order after hearing and not from the judgment on reserved issues dated that same day. Therefore, she argues, this appeal should be dismissed because even if Todd succeeds in overturning the order, or a portion thereof, his failure to include the judgment in the notice of appeal means the judgment would still stand regardless of any ruling on the order. We note Kari made a somewhat analogous argument in a prior motion to dismiss this appeal, which was denied by Division 3 of this court. In any event, we have compared the order after hearing and the judgment and note that they cover the same subject matters. Pursuant to California Rules of Court, rule 8.100(a)(2), which in part provides that a notice of appeal "must be liberally construed," we conclude Todd's notice of appeal to the order after hearing also applies to the judgment on reserved issues, as no prejudice will accrue to Kari by our doing so. (See Walker Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 20 [interpreting the predecessor to rule 8.100(a)(2) and finding that " 'notices of appeal referring to an "order" have been interpreted to apply to a "judgment," and those referring to a "judgment" to apply to an "order," "so as to protect the right of appeal if it is reasonably clear what appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced" ' [citations]"].)
FACTUAL AND PROCEDURAL OVERVIEW
Kari and Todd married in October 2004 and separated on October 1, 2009. They had one son, born in May 2007 (hereinafter, minor). Kari filed for dissolution of marriage on November 12, 2009. She remarried on December 27, 2013.
As we discuss in detail in Bustillo II, as part of their dissolution of marriage the parties negotiated and entered into a stipulation on April 8, 2011, in which they agreed to divide their property without regard to its character (i.e., separate or community) or its valuation, and in which they agreed that spousal support would automatically terminate on August 31, 2011 (hereinafter, Stipulated Judgment). With respect to the latter issue, the Stipulated Judgment tracked in part the language of a January 24, 2011 stipulation and order, in which the parties had agreed that Todd would pay "unallocated support" to Kari of $2,000 per month until August 31, 2011, at which time the "issue of spousal support . . . shall absolutely terminate . . . and no court shall have the jurisdiction to award spousal support payable by either party, regardless of the circumstances which may arise."
As we also discuss in Bustillo II, the Stipulated Judgment included broad waiver provisions including waiver of the Final Declaration of Disclosure pursuant to Family Code section 2105 and of "[a]ll financial information addressing the extent, nature and value of the community estate, including assets and liabilities, obligations and debts, and each party's separate estates as provided solely by the parties." The parties also agreed in the Stipulated Judgment to abstain from "engaging in any investigation, discovery, appraisals, due diligence, accounting or financial analysis and/or evaluation of any kind" with respect to their assets and liabilities.
All further statutory references are to the Family Code unless noted otherwise.
As further discussed in Bustillo II, during the negotiation and execution of the Stipulated Judgment, Kari was self-represented, while Todd was represented by counsel. Shortly after they entered into the Stipulated Judgment, Kari rehired legal counsel (who are the same attorneys of record in this appeal and in Bustillo II). On July 15, 2011, Kari filed a motion to set aside the Stipulated Judgment pursuant to Code of Civil Procedure section 473 and section 2122 (Set-Aside Motion).
As discussed in Bustillo II, the trial court denied Kari's Set-Aside Motion with respect to the division of property, finding in its February 6, 2012 order (sometimes, Set-Aside Order) that "people have a right to make a bad decision," and that "[s]imply because they make a bad decision does not mean that every time they do, the Court should correct it for them." However, the court granted Kari's Set-Aside Motion with respect to the issue of spousal support, "including, but not limited to, amount, duration and termination of jurisdiction thereof."
With respect to this latter issue, the court ruled as follows:
"This case was originally filed on November 12, 2009. Then [Kari] filed an Order to Show Cause for spousal support, child support, and child custody on May 3, 2010. On June 21, 2010, the parties entered into a Stipulation on the Order to Show Cause[,] which resulted in a Findings and Order After Hearing filed July 28, 2010, signed by Commissioner Posey. The Findings and Order After Hearing indicated by Stipulation of the parties, [¶] 'The Court orders the following without prejudice: under support, as and for unallocated support, [Todd] shall pay to [Kari] $2,000 a month, a thousand on the 1st, a thousand on the 15th, commencing June 1st. The Court reserves jurisdiction to allocate the above support to child support and spousal support, if any. In the event that after the Court has determined support, [Todd] has overpaid or underpaid, then said overpayments or underpayments shall be characterized as a distribution of the community estate or subject to reimbursement or payment. The Court reserves jurisdiction to order support retroactive to May 3, 2010.'
"[¶] . . . [¶]
" [']The parties stipulate and the Court orders that the Court's jurisdiction over the issue of spousal support payable to either party shall absolutely terminate on August 31st and not [sic] court shall have the jurisdiction to award spousal support payable by either party regardless of the circumstances which may arise. The Order to Show Cause currently set for January 10th shall be taken off calendar.'
The court in its February 6 order denying in part and granting in part Kari's Set-Aside Motion noted that the parties in their June 21, 2010 Stipulation and Order never addressed child custody or child support. The Stipulated Judgment was also referenced by the court in its February 6 order, which noted as follows: "[U]nder paragraph 3 [of the Stipulated Judgment], it reiterates the Stipulation and Order of January 24[, 2011.] Paragraph 4 reiterates the Stipulation regarding termination of jurisdiction, and Paragraph 5, interlineates the payment of spousal support from January through May of 2010 in the amount of $10,171.90. Nowhere [in] the Judgment is the issue of child custody or child support issue. So as we sit here today, there has never been a trial on custody or visitation or child support.
The January 24, 2011 stipulation and order appears to have included much of the same language as the parties' earlier June 21, 2010 stipulation.
"Every dollar that [Todd] has paid to [Kari] has been allocated to spousal support without a determination as to custody or visitation and with a reservation of retroactively back to May 3rd, 2010. This is void as against public policy. You cannot allocate all dollars to spousal support when the issue of custody and visitation and child support is open with no even pendente lite orders on those issues."
Kari in April 2012 appealed the denial of the Set-Aside Motion with respect to the division of property, which was the subject of Bustillo I, and which opinion is summarized in more detail in Bustillo II (filed concurrently herewith, as noted). Briefly, Division 3 of this court in Bustillo I found that it was Kari who "pressure[d] Todd to resolve their property division" as quickly as possible, and not vice-versa (Bustillo I, supra, 2013 WL 1850769, at p. *2); that Kari chose to be unrepresented shortly before the parties entered into the Stipulated Judgment because she did not want to incur additional attorney fees; that Kari had the right to enter into the agreement regarding property division, even if it turned out that agreement was a " 'bad deal' " for her, because a " 'deal is a deal' " (id. at p. *5); that the court never found it was a "bad deal" for her, despite Kari's argument to the contrary; and that Todd, in any event, "presented detailed records showing Kari knew of the accounts and transactions she claimed he hid" (ibid.). Bustillo I thus affirmed the denial of Kari's Set-Aside Motion with respect to the division of property.
The Bustillo I court did not, however, address the portion of the Set-Aside Order granted by the trial court, which is the subject of the instant appeal, as Todd did not appeal the ruling on the support issue.
While Kari's appeal was pending, the family law court on October 17, 2012, entered judgment covering custody and visitation of minor. The issue of support was next heard on November 7, 2012. The court at that hearing ordered Todd to pay Kari temporary child support of $692, temporary spousal support of $1,418, beginning on November 30, 2012 (emphasis omitted), and ordered the support hearing continued to April 2013. In mid-December 2012, Todd became self-represented.
On January 8, 2014, the court terminated the order of monthly spousal support of $1,418 as a result of Kari's remarriage the previous month. The record shows the hearing on the support issue was thereafter repeatedly continued, sometimes as a result of the court's unavailability. Finally, in October 2016 retired judge Michael J. Naughton heard and decided the support issue only, which hearing took place over several days.
We have carefully reviewed the transcript of this multiday hearing and it shows that the court interpreted the nearly five-year-old February 6, 2012 Set-Aside Order (made by Judge Lon Hurwitz) only to set aside the issue of allocation of spousal and child support between January 1, 2010 and December 31, 2013, in light of the fact that Kari had remarried in December 2013. (See § 4337.) Specifically, the court reasoned as follows in limiting the scope of the Set-Aside Order:
Section 4337 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." (Italics added.)
"Now, my ruling is this: there was a judgment that was filed [in this case] in April 2011. That judgment was partially set aside. The motion to set aside was heard by Judge Hurwitz. In his ruling, he denied it in part and granted it in part. He denied the set aside for everything except the question of the allocation of the $2,000 a month that was agreed on by the parties as unallocated support. His ruling essentially says given the fact there was no child support order made it is necessary to allocate something for child support and spousal support during that period of time . . . . So that's where we are at.
"Now, the further ruling is that I am not going to allow inquiry as to the source of the payments by [Todd] to [Kari]. That all has—either has been completed or should have been completed in the judgment of dissolution of marriage which was filed on April the 8th, 2011, which was appealed by [Kari] and affirmed by [Division 3] of the [Fourth] District Court of Appeal.
"Any claims for double dipping or for loss of community property or any of the above could have been and should have been taken care of in the judgment of April 8, 2011." (Italics added.)
As noted ante, the court on January 10, 2017, issued an order after hearing and a judgment on the issue of allocation of support (collectively, Support Judgment) based on payments Todd already had made. (See fn. 3, ante.) The Support Judgment allocated spousal support between January 1, 2010 and December 2013. It did the same for child support, then retroactively set such support at $869 per month beginning on January 1, 2014 and "continuing until further order of the court, or until [minor] marries, dies, is emancipated, reaches age 19, or reaches age 18 and is not a full-time high school student, whichever occurs first. . . ."
The Support Judgment also required Todd and Kari to split equally "[r]easonable uninsured health-care costs" for minor, and for them to provide minor with "[h]ealth insurance coverage." Finally, the Support Judgment required Todd to pay Kari $10,000 for "attorney fees and costs for this hearing only."
DISCUSSION
A. Support
Todd argues the court erred when it granted in part Kari's Set-Aside Motion on the issue of support. As noted, the court in its Set-Aside Order found the parties' January 24, 2011 stipulation and order and their separate Stipulated Judgment "void as against public policy" based on their decision to allocate all money to spousal support, "when the issue of custody and visitation and child support [was] open with no even pendente lite orders on those issues." We reject this claim of error.
Issue preclusion, historically known as collateral estoppel (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824 (DKN)), applies: "(1) after final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the first suit and (4) asserted against one who was a party in the first suit or one in privity with that party." (Id. at p. 825.) Issue preclusion prohibits the relitigation of issues argued and decided in a previous case, even if the second suit raises different causes of action. (Id. at p. 824.) Whether issue preclusion applies is a question of law we review de novo. (Jenkins v. County of Riverside (2006) 138 Cal.App.4th 593, 618 (Jenkins).)
Our Supreme Court has shifted away from the traditional phrases "res judicata" and "collateral estoppel" in favor of the more precise terms "claim preclusion" and "issue preclusion," respectively. (See DKN, supra, 61 Cal.4th at p. 824.)
As summarized ante, the court in its Set-Aside Order found the court had reserved jurisdiction to allocate the $2,000 monthly payment between spousal and child support; and that, because the parties' various agreements, culminating with the Stipulated Judgment, allocated all paid money to spousal support without a "determination as to custody or visitation," the Stipulated Judgment with respect to this issue was void. The court in this Order thus set aside the portion of the Stipulated Judgment related to spousal support, "including but not limited to, amount, duration and termination of jurisdiction thereof."
As discussed in detail in Bustillo II, Division 3 of this court in Bustillo I addressed only the division of property in the Stipulated Judgment, which issue Kari had appealed. As noted, Todd did not appeal the portion of the Set-Aside Order finding the Stipulated Judgment, as it pertained to spousal support, void.
Because the issue of the validity of the parties' agreement in the Stipulated Judgment regarding support was "actually litigated and necessarily decided" by the court in its Set-Aside Order, and because Todd did not raise any of those issues in Bustillo I, we independently conclude issue preclusion bars him as a matter of law from relitigating in the instant case those same issues. (See DKN, supra, 61 Cal.4th at p. 825; Jenkins, supra, 138 Cal.App.4th at p. 618.)
Our conclusion that issue preclusion bars Todd from relitigating in the instant case the validity of the court's February 6 Set-Aside Order with respect to spousal support disposes of his main argument on appeal. However, one issue that was not decided by the Set-Aside Motion, and thus not barred by issue preclusion, is whether the court erred in refusing to consider the factors set forth in former section 4320 in deciding support, as Todd argues, including the allocation and retroactivity thereof.
Section 4320 was amended effective January 1, 2019. (See Stats. 2018, ch. 938 (Assem. Bill No. 929), § 1, eff. Jan. 1, 2019.) The Legislative Counsel's Digest states newly amended section 4320 specified that all documented evidence of any domestic violence (as defined in section 6211) between the parties or perpetrated by either party against either party's child be considered in ordering spousal support.
The version of section 4320 applicable here provided: "In ordering spousal support under this part, the court shall consider all of the following circumstances: [¶] (a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following: [¶] (1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment. [¶] (2) The extent to which the supported party's present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties. [¶] (b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party. [¶] (c) The ability of the supporting party to pay spousal support, taking into account the supporting party's earning capacity, earned and unearned income, assets, and standard of living. [¶] (d) The needs of each party based on the standard of living established during the marriage. [¶] (e) The obligations and assets, including the separate property, of each party. [¶] (f) The duration of the marriage. [¶] (g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party. [¶] (h) The age and health of the parties. [¶] (i) Documented evidence, including a plea of nolo contendere, of any history of domestic violence, as defined in Section 6211, between the parties or perpetrated by either party against either party's child, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party. [¶] (j) The immediate and specific tax consequences to each party. [¶] (k) The balance of the hardships to each party. [¶] (l) The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a 'reasonable period of time' for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court's discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties. [¶] (m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4324.5 or 4325. [¶] (n) Any other factors the court determines are just and equitable."
As we have noted, the record shows the court interpreted the February 6, 2012 Set-Aside Order as setting aside only the issue of allocation of spousal and child support already paid by Todd, inasmuch as Kari had remarried in December 2013. As further noted, the court refused to relitigate whether Kari was entitled to additional support (before she remarried), or whether Todd was entitled to a refund of a portion of support he already had paid her (up to that point).
Based on the court's interpretation of the February 6 order, and the fact that Kari had remarried in 2013, almost three years before the multiday support hearing finally took place, we agree with the court's tacit finding that it was unnecessary to determine whether the spousal support that already had been paid was temporary or permanent. (See In re Marriage of Tong and Samson (2011) 197 Cal.App.4th 23, 29 [noting a " 'court is not restricted by any set of statutory guidelines in fixing a temporary spousal support amount' "]; In re Marriage of Dick (1993) 15 Cal.App.4th 144, 159 [noting an award of temporary spousal support rests within the broad discretion of the family law court and may be ordered in "any amount" (§ 3600) subject only to the moving party's needs and the other party's ability to pay]; compare In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 312 [noting the setting of permanent support, in contrast to temporary support, is constrained by the numerous statutory factors set out in (former) section 4320].) As such, we conclude that the court properly refused to apply section 4320 retroactively to the monthly payments of about $2,000 Todd already had made to Kari during the allocation period.
Todd also argues that the court erred in not refunding a portion of the spousal support he paid Kari in 2013 because she began cohabitating with her then boyfriend in May 2013, ultimately marrying him seven months later. (See § 4323, subd. (a)(1).) While this claim also is not barred by issue preclusion, we conclude it is nonetheless unavailing.
Section 4323, subdivision (a)(1) provides: "Except as otherwise agreed to by the parties in writing, there is a rebuttable presumption, affecting the burden of proof, of decreased need for spousal support if the supported party is cohabiting with a nonmarital partner. Upon a determination that circumstances have changed, the court may modify or terminate the spousal support as provided for in Chapter 6 (commencing with Section 3650) of Part 1."
First, our own independent review of the record suggests there is no substantial evidence to support the finding that in 2013 Kari's seven-month cohabitation with her boyfriend was a change of circumstance for purposes of section 4323, subdivision (a)(1). Indeed, the record supports the opposite finding, as Kari testified during the support hearing that she was not receiving child or spousal support in about May 2013; and that as a result, she was forced to cohabitate with her then-boyfriend because she could not afford to support herself. Because the " 'burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power.' [Citations.]" (Denham v. Superior Court (1970) 2 Cal.3d 557, 566 (Denham).) We thus conclude substantial evidence supports the court's tacit finding there was no change in circumstance for purposes of section 4323, subdivision (a)(1).
Second, the record shows throughout the multiday support hearing that Todd and Kari both sought to expand the issues being decided by the court, as we have noted, in what the court found was a "confusing" marital dissolution case—a finding we agree with. The record shows the court's decision to limit the issues being decided "cut both ways." That is, although the court did not make any adjustment to support as a result of Kari's seven-month cohabitation with her then boyfriend, the court also refused Kari's request to revisit the issue of the source (i.e., whether separate or community) of the $10,171.90 payments Todd had made to her between January and May 2010, as referenced in the Stipulated Judgment.
We conclude under the facts of this case that the court thus properly refused to relitigate the issue of whether more or less spousal support was owed by Todd in making the allocations set forth in the Support Judgment. (See Denham, supra, 2 Cal.3d at p. 566.) For these same reasons, we also reject Todd's argument that the court erred when it refused to make an adjustment for, and refund to him a portion of, minor's childcare costs that were paid from the unallocated payments.
In light of our decision, we decline to address the court's finding that there was a failure of evidence with respect to child care expenses pursuant to section 4062. We also decline to address whether the doctrines of invited error and/or estoppel applied in this case, as Kari argues in her brief.
B. Attorney Fees Award
Todd next argues the court erred in awarding Kari $10,000 in attorney fees for the multiday support hearing only. Specifically, he argues that the court's failure to consider the "factors" in sections 2030 and 2032, and its failure to state on the record "it factored in anything, let alone income and expenses, nor that it even considered the current income and expense declarations of the parties," rendered the attorney fees award null and void. We find this argument has merit.
The decision in In re Marriage of Morton (2018) 27 Cal.App.5th 1025 (Morton) informs our analysis on this issue. In Morton, the court analyzed sections 2030 and 2032 among other provisions of the Family Code. After reviewing the history of these two statutes, the court found as follows:
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, including access early in the proceedings, 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) When a request for attorney's fees and costs is made, the court shall make 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. If the findings demonstrate disparity in access and ability to pay, the court shall make an order awarding attorney's fees and costs. 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. [¶] (e) The Judicial Council shall, by January 1, 2012, adopt a statewide rule of court to implement this section and develop a form for the information that shall be submitted to the court to obtain an award of attorney's fees under this section." (Italics added.)
Section 2032 provides in relevant 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. [¶] (c) The court may order payment of an award of attorney's fees and costs from any type of property, whether community or separate, principal or income. [¶] (d) Either party may, at any time before the hearing of the cause on the merits, on noticed motion, request the court to make a finding that the case involves complex or substantial issues of fact or law related to property rights, visitation, custody, or support. Upon that finding, the court may in its discretion determine the appropriate, equitable allocation of attorney's fees, court costs, expert fees, and consultant fees between the parties. The court order may provide for the allocation of separate or community assets, security against these assets, and for payments from income or anticipated income of either party for the purpose described in this subdivision and for the benefit of one or both parties. Payments shall be authorized only on agreement of the parties or, in the absence thereof, by court order. The court may order that a referee be appointed pursuant to Section 639 of the Code of Civil Procedure to oversee the allocation of fees and costs."
"As a general principle, when new legislation amends statutory text by substituting the word 'shall' for 'may,' the new legislation has restricted the discretionary authority previously granted under the statute. (See § 12 [' "Shall" is mandatory and "may" is permissive'].) The version of section 2030 enacted in 1993 stated the trial court 'may . . . order' attorney fees in certain circumstances. (Stats. 1993, ch. 219, § 106.1, pp. 1607-1608.) The 2004 amendment deleted the word 'may' and inserted text that used the word 'shall' four times. (Stats. 2004, ch. 472, § 1, p. 3931.) The 2010 amendment modified section 2030, subdivision (b) to include text stating 'the court shall make findings' and stating 'the court shall make an order awarding attorney fees and costs' if the findings demonstrated certain conditions. (Stats. 2010, ch. 352, § 4.) The textual changes made by the 2004 and 2010 legislation demonstrate that the discretionary authority granted to trial courts is not as broad as it once was and, currently, trial courts must comply with certain mandatory provisions. (See Kevin Q. v. Lauren W. (2011) 195 Cal.App.4th [633,] 639-640 [2004 amendment restricted trial court's discretion].)
"Accordingly, we conclude the 'broad discretion' referred to in judicial decisions discussing the version of 2030 predating the 2004 and 2010 amendments no longer exists. (See e.g., Cheriton [v. Fraser (2001)] 92 Cal.App.4th [269,] 314 ['trial courts enjoy broad discretion in awarding attorneys' fees in marital proceedings'].) The Legislature has imposed limitations on that discretion and it is no longer accurate to refer to a trial court's 'broad discretion' when describing a trial court's responsibilities under section 2030 as currently in effect." (Morton, supra, 27 Cal.App.5th at p. 1049.)
The Morton court next reviewed the language of section 2030, set forth ante, and in particular, subdivision (a)(1) and (2) of this statute, which as noted used the word "shall" multiple times. (Morton, supra, 27 Cal.App.5th at p. 1050.) Based on this mandatory language, the court in Morton interpreted section 2030 to require the trial court to make findings on "specific questions" raised by the statute and concluded these findings "must be explicit (i.e., written or oral)" and not "implicit." (Morton, at p. 1050.)
In support of its conclusion, the Morton court relied on an interpretation of former Civil Code section 4600, a "provision in the Family Law Act relating to an award of custody of a child to a nonparent. The provision stated the court ' "must make a finding that an award of custody to a parent would be detrimental to the child." ' (In re B.G. (1974) 11 Cal.3d 679, 695.) Our Supreme Court determined this statutory text required an express finding. (Id. at p. 683.) The phrase 'shall make findings' [in subdivision (a)(2) of section 2030] is similar to the phrase 'must make a finding' because 'shall' and 'must' are routinely construed as mandatory. (Jones v. Catholic Healthcare West (2007) 147 Cal.App.4th 300, 307.) Therefore, we conclude the phrase 'the court shall make findings' requires the court to make express findings—that is, findings stated in words, either in writing or orally on the record. (§ 2030, subd. (a)(2).)" (Morton, supra, 27 Cal.App.5th at p. 1050.)
The Morton court next analyzed whether the failure of a trial court to make explicit findings as set forth in subdivision (a) of section 2030 "warrant[ed] automatic reversal or, alternatively, whether the appellant must establish the error was prejudicial. We conclude California's constitutional doctrine of reversible error applies and requires the appellant to establish prejudice. (Cal. Const., art. VI, § 13.) An appellant in a civil case establishes an error was prejudicial by showing there is 'a reasonable probability that in the absence of the error, a result more favorable to the appealing party would have been reached.' (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574.)" (Morton, supra, 27 Cal.App.5th at p. 1051.) Because the Morton court found the trial court had failed to analyze the "needs of the parties and their ability to pay" and " 'whether there is a disparity in access to funds to retain counsel,' " it further concluded the trial court "committed legal error" under section 2030, subdivision (a)(2). (Morton, at pp. 1052-1053.)
Based on its independent review of the record, the Morton court analyzed whether to remand "with directions for the trial court to make those findings" (Morton, supra, 27 Cal.App.4th at p. 1053), or "to conclude the evidence in the record establishes the facts that render an award of attorney fees mandatory and, as a result, limit the further proceedings on remand to a determination of the amount of those additional attorney fees." (Ibid.) The court chose the latter, noting the record before it showed a " 'disparity in access to funds to retain counsel' " as set forth in subdivision (a)(2) of section 2030. (Morton, at p. 1053.)
Finally, the Morton court also addressed the issue of attorney fees on and after appeal. (See Morton, supra, 27 Cal.App.5th at p. 1054.) It found "[s]ubdivision (c) of section 2030 states the trial court 'shall augment or modify the original award for attorney's fees and costs as may be reasonably necessary for the prosecution . . . of the proceeding, or any proceeding related thereto, including after any appeal has been concluded.' [Appellant] Launa's appeal was reasonably necessary for the prosecution of the proceeding, but the amount reasonably necessary for her pursuit of this appeal and the further proceedings on remand is a matter to be resolved by the trial court in the first instance. (See In re Marriage of Schofield (1998) 62 Cal.App.4th 131, 140-141.)" (Morton, at p. 1054.)
Turning to the instant case, we agree with the reasoning in Morton and thus conclude the court erred when it failed to make any of the mandatory findings required by subdivision (a)(1) and (2) of section 2030 in awarding Kari $10,000 in attorney fees under this statute. (See Morton, supra, 27 Cal.App.5th at pp. 1049-1054.) Accordingly, we remand for the trial court to make such findings and based thereon, determine whether such a fee award, if any, is appropriate under section 2030 for purposes of the multiday support hearing only.
We offer no opinion on whether the court also can "augment or modify" the "original award," if any, pursuant to subdivision (c) of section 2030. In any event, as we also noted in Bustillo II, we are hopeful the parties to this dissolution proceeding, which has now been pending for about 10 years and has been the source of multiple appeals, will be able to put an end to this litigation once and for all, regardless of the outcome of the attorney fees issue.
DISPOSITION
The Support Judgment is affirmed. The award of attorney fees for the multiday hearing leading up to that judgment is reversed based on the court's failure to make any of the mandatory statutory findings under section 2030, subdivision (a). In the interests of justice, the parties will bear their respective costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
BENKE, J. WE CONCUR: McCONNELL, P. J. DATO, J.