Opinion
H037573
08-16-2012
In re the Marriage of MAYA and CHRISTIAN FOGLAR. MAYA FOGLAR, Appellant, v. CHRISTIAN FOGLAR, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. FL150629)
In this marital dissolution action, appellant Maya Foglar seeks review of an order denying her request for pendente lite attorney fees from respondent Christian Foglar. Maya contends that the family court violated Family Code sections 2030 and 2032 by refusing to award temporary fees equal to the amount Christian had paid his own attorney. We will affirm the order.
For ease of reference, we will refer to the parties by their first names, as does Maya in her appellate brief. (See In re Marriage of Smith (1990) 225 Cal.App.3d 469, 475-476, fn. 1.)
Background
Maya has provided few facts to illuminate the history of the present controversy. The limited record she designated indicates that the parties separated in April 2009 after 17 years of marriage. Maya filed a petition for dissolution of marriage in May of 2009. At that time they had a 14-year-old son and seven-year-old twins, of whom Christian had custody. Christian was an orthopedic surgeon, while Maya was unemployed and disabled as a result of multiple sclerosis. Her living expenses were extraordinarily high; she required full-time care, including assistance with dressing, bathing, and toileting.
At a hearing on January 25, 2011 before the Honorable Mary Ann Grilli, the parties stipulated that Christian would pay Maya $20,000 a month as family support. In addition, he would be responsible for paying Maya's forensic expert accountant $10,000, plus $4,500 to Maya's attorney, the amount that remained outstanding from a prior order.
On May 3, 2011, Maya filed a request for an order staying further deposition testimony until Christian paid the attorney fees and costs ordered by Judge Grilli. In an accompanying declaration, her attorney, Paul Nesse, stated that Maya currently owed his office $72,000 for attorney fees, along with at least $10,000 for the forensic accountant. According to Nesse, Christian was also $53,732 in arrears on his family support payments. Nesse indicated that it was "impossible" for him to continue " 'funding' " this case, and he requested a stay of all depositions until Christian complied with Judge Grilli's January 2011 order.
On May 23, 2011, the parties appeared in court on the issue of attorney fees and costs. In her order on August 15, 2011, the Honorable Margaret Johnson indicated that the issue of attorney fees had been "present from the beginning of this case." She referred to a January 2010 hearing (not in the appellate record) at which "Judge Persky found that Christian had the ability to pay and was the better party to shoulder attorney's fees in the case." Judge Johnson noted that in the January 2010 order, Christian was directed to pay Maya $25,000 as a contribution to her attorney fees and costs. Judge Johnson also referred to a February 4, 2011 motion by Christian for modification of family support. That motion is not in the record on appeal.
After the hearing, both parties submitted declarations. Christian's declaration, which is in the appellate record, stated that he was unable to pay the current arrearages, and he requested an offset against the amounts Maya owed him for tax liabilities. His accountant's declaration noted the community's state and federal debts for 2007 through 2010. The accountant further stated that Christian's income was currently $26,000 per month, "a significant decrease" from 2010. Christian urged the court to deny Maya's motion to delay discovery and the progress of the case until he paid the arrearages and additional money to Nesse, because "[t]here is simply no money available to pay. I have been informed that I may not have representation much longer because I owe my attorney fees; I am unable to borrow more money."
The outstanding debt to the IRS for 2007 alone was more than $400,000.
Maya's own accountant estimated Christian's 2010 income as $880,000.
Christian's attorney, Susan Benett, also submitted a declaration, which provided more details that Christian represented to be accurate. Benett told the court that after months of insisting on joint legal custody and more frequent visits, Maya had finally stipulated to "reunification counseling" with the two younger children and 1-2 hours of additional visitation if recommended by the reunification therapist. The oldest child was living with his paternal grandfather and attending public school in Switzerland, supported by Christian. Benett directed the court's attention to an evaluator's report, which described Maya's "lack of inhibition and self-control, which are likely to be part of her organic mental disorder [and which] contribute to her lability, impulsivity, and poor judgment." A joint psychological expert had expressed the opinion that Maya's "ability to manage her own finances, and make decisions in her own interests is compromised," and she recommended consideration of a conservatorship.
Addressing the parties' financial circumstances, Benett noted that the parties had a "negative community estate." Maya had paid nothing toward either tax liability or consumer debt and currently owed Christian $141,597.50 for payments he had made on behalf of the community in 2010, with additional amounts owing for 2009 and 2011. Benett acknowledged the significant expense of Maya's health care; she pointed out, however, that Maya's attorney fees were higher than Christian's, and Maya was claiming an unreasonable amount for rent -- $6,000, in contrast to Christian's $1,950 for himself, his sister (who performed housekeeping and childcare services), and the children. Benett recalled a June 2009 declaration in which Christian had stated that Maya exhibited an "unwillingness to stop shopping," as she owned more than 170 pairs of pants and spent $3,000 monthly for lunch while shopping. Since separation she had spent $4,800 for jewelry. Benett represented that 58 percent of Christian's income was currently being paid to Maya, while he and the children were living on $5,090.90 in after-tax money. He had borrowed money to pay his own fees, but his ability to borrow more had been exhausted.
Christian also listed "negative community estate" in his February and June 2011 income and expense declarations.
Nesse submitted a responsive declaration disputing several of the facts attested to by Christian and Benett. He attributed the parties' tax liability to Christian's having taken money from his business without paying taxes, and without Maya's knowledge. Nesse pointed to discrepancies in Christian's income and expense declarations: in February 2011, his income and expense declaration reflected attorney fees paid "to date" of $112,497 with an amount owing of $14,259; in a subsequent income and expense declaration on May 31, 2011, however, he stated that he had paid his attorney $111,706, with $7,030 still owing. Maya's fees, on the other hand, totaled $72,041.91 as of June 1, 2011. Nesse further questioned Christian's claimed sources of the payments he had made for his fees. Nesse filed a supplemental declaration on July 25, 2011, stating that the amount Maya owed his office as of May 20, 2011 was $77,273.97 -- $71,063.45 for attorney fees and $6,210.52 for costs.
According to the court's August 15, 2011 order, Maya owed Nesse $87,661 as of July 19, 2011.
In the August 15, 2011 order the court acknowledged the "basic facts" that Maya was disabled, that Christian had income from his medical practice, and that he was "also the only person providing for the children and for his wife as well as paying debts and dealing with the taxing authorities." The court reviewed extensively the parties' arguments and evidence, including declarations from their respective expert accountants, in light of Family Code sections 2030 and 2032. The court stated, however, that it could not "make definitive findings" under these statutes because it had not yet "made any findings for the income to either party." Christian's income was in dispute, and Maya's $20,000 income was not certain because the appropriate support amount had not been resolved since February 2011. Both parties claimed financial hardship.
The court then proceeded on the assumptions that (1) Christian continued to owe Maya $20,000 a month for support and (2) Maya's accountant had accurately calculated Christian's income to be $36,305 a month. Accordingly, the court concluded, "Maya receives about 55% of the net spendable income of the family, and thus should pay her own attorney fees for this period. This decision is made without prejudice due to the uncertainty of the assumptions used by the Court." The court did, however, expressly direct Christian to pay "forthwith" the previously ordered $4,500 to Nesse and $10,000 to Maya's accountant. Both parties were further directed to produce documentation supporting their respective claims regarding family support.
Maya moved for reconsideration under Code of Civil Procedure section 1008, citing additional income evidence of which, she said, the court had been unaware. Maya specifically asked the court to reconsider its denial of the fees requested for the period from August 2010 to the end of January 2011. The court denied the motion on October 7, 2011. This appeal followed.
Discussion
Christian did not file an appellate brief. He informed this court that he lacked the financial resources to retain an attorney, but that he nonetheless opposed Maya's position on appeal.
As amended effective January 1, 2011, Family Code section 2030, subdivision (a)(1), states, in pertinent part: "(a)(1). In a proceeding for dissolution of marriage, nullity of marriage, or legal separation of the parties . . . 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."
All further statutory references are to the Family Code.
"It may be a little surprising to some, but the purpose of section 2030 is not the redistribution of money from the greater income party to the lesser income party. Its purpose is parity: a fair hearing with two sides equally represented. 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." (Alan S., Jr. v. Superior Court (2009) 172 Cal.App.4th 238, 251.)
Section 2032 assists the court in applying section 2030 by authorizing the fee award "where the making of the award, and the amount of the award, are just and reasonable under the relative circumstances of the respective parties. [¶] (b) In determining what is just and reasonable under the relative circumstances, the court shall take into consideration the need for the award to enable each party, to the extent practical, to have sufficient financial resources to present the party's case adequately, taking into consideration, to the extent relevant, the circumstances of the respective parties described in Section 4320. The fact that the party requesting an award of attorney's fees and costs has resources from which the party could pay the party's own attorney's fees and costs is not itself a bar to an order that the other party pay part or all of the fees and costs requested. Financial resources are only one factor for the court to consider in determining how to apportion the overall cost of the litigation equitably between the parties under their relative circumstances." (§ 2032, subds.(a), (b).)
Section 4320 "presents a near-exhaustive list of factors that are to go into a spousal support award . . . . To be sure, not all section 4320 factors will be relevant all the time (hence the 'to the extent relevant' language in section 2032). But obviously a number of section 4320 factors will usually bear on a pendente lite fee order. These surely 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., Jr. v. Superior Court, supra, 172 Cal.App.4th at p. 253.)
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Maya first contends that the court violated section 2030 because it was "wholly clear" that she had no income, whereas Christian was able to pay his attorney. She believes that we must review the denial of her fee request de novo because "[a] decision that simply ignores statutory requirements constitutes an abuse of discretion." In this statement Maya confuses two different standards of review. In any event, her argument that the court contravened the statute is premised on what she calls an "admitted disparity in the ability to pay fees." That asserted fact was in turn based on Maya's observation that Christian "had succeeded in paying his attorney more than $100,000." The court's ruling, however, addressed more than each party's ability to pay his or her own fees; it noted that Maya owed her attorney more than $87,000, while Christian was burdened with community and tax debt as well as being sole supporter of Maya and their children. Whether the ruling was correct depends on the entire circumstances presented to the family court, not just which party was able to pay his or her own bill for legal representation. Section 2032 "not only requires that the court consider the financial resources of each party, but also requires a broader analysis of the parties' relative circumstances." (In re Marriage of Cryer (2011) 198 Cal.App.4th 1039, 1056.) "[A] pendente lite fee award should be the product of a nuanced process in which the trial court should try to get the 'big picture' of the case, i.e., 'the relative circumstances of the respective parties' as the statute puts it. (§ 2032, subd. (a).) Conversely, determination of a pendente lite attorney fee order is definitely not a truncated process where the trial court simply (a) ascertains which party has the higher nominal income relative to the other, and then (b) massages the fee request of the lesser-income party into some manageable amount that feels like it will pass an abuse of discretion test." (Alan S., Jr. v. Superior Court, supra, 172 Cal.App.4th at p. 254.)
In related arguments, Maya asserts an abuse of discretion based on the court's speculation and disregard of the source of Christian's payments to his attorney. This assertion, she correctly observes, calls for review for abuse of discretion. "The family court has considerable latitude to make a just and reasonable fee award." (In re Marriage of Cryer, supra, 198 Cal.App.4th at p. 1054.) On the other hand, "its decision must reflect an exercise of discretion and a consideration of the appropriate factors." (In re Marriage of Hatch (1985) 169 Cal.App.3d 1213, 1219; accord, In re Marriage of Keech (1999) 75 Cal.App.4th 860, 866.)
The current version of section 2030 reinforces the Legislature's priority on parity of access to legal representation during dissolution proceedings. Whereas before 2005 the statute stated that the court "may" award reasonable fees to ensure each party's access to legal representation, the 2004 amendment conveyed a strengthened resolve by stating that the court "shall" ensure access to such representation by awarding attorney fees. The 2010 amendment, which was applicable at the time of these proceedings, added the language "including access early in the proceedings."
The element of discretion was not removed, however, in either the 2005 version or the 2011 version of section 2030, subdivision (a). Before ordering one party to pay the other's fees, the court must still find that such an order is "necessary," and the amount must be found "reasonably necessary" to enable the recipient party to maintain or defend the proceeding. (§ 2030, subd. (a)(1).) Likewise, the current version of subdivision (a)(2) requires the court to determine whether such an award is "appropriate." These are primarily discretionary determinations that are "necessarily committed to the sound judgment of the trial court, and [are], accordingly, subject to review under an abuse of discretion standard." (Kevin Q. v. Lauren W. (2011) 195 Cal.App.4th 633, 642.) The court's assessment of the parties' income and needs is reviewed under a substantial evidence standard. (Ibid.)
Maya bears the burden of showing that the court abused its discretion by failing to award her any attorney fees. (Id. at p. 644.) She has not met that burden. Maya reasons that because she had no income and Christian had demonstrated that he was able to pay his attorney, the circumstances demanded an award of fees to Maya. Maya appears to be arguing on appeal that this very inconsistency-- that Christian was able to pay his attorney while she was not—confirms the need for equitable allocation and demonstrates the court's error in not providing that allocation. As she did below, Maya disputes Christian's credibility in his claim that he paid Benett from earnings and loans; the facts, she observes, "do seem to raise some questions as to how Christian managed to pay $100,000 to his attorney." But it is not our role to reweigh the evidence or judge the credibility of the parties. It is the family court in the first instance which "sits as trier of fact and . . . is called upon to determine that a witness is to be believed or not believed. This is the nature of fact finding." (In re Marriage of Greenberg (2011) 194 Cal.App.4th 1095, 1099.) We must view such determinations in favor of the order. (In re Marriage of Slivka (1986) 183 Cal.App.3d 159, 162-163.)
The record before us offers no basis for overturning the factual findings of the family court. While those findings were based on limited evidence, that was the only evidence available to the court at this stage in the proceedings. Because Maya had not produced sufficient contrary evidence, the court had to base its assessment on what it did have: that due to her disability Maya was unable to work and required full-time care; that Christian's monthly income of $36,305 (an estimate by Maya's forensic accountant) was primarily derived from his medical practice; and that Christian was shouldering a substantial debt to the federal and state taxing authorities as well as the cost of care for the parties' three children. Maya fails to demonstrate that this evidence was insufficient to support the court's ruling, or that the court otherwise abused its discretion.
Maya further contends that the court failed to make findings as required by section 2030, instead simply "[w]aiting for a time when the facts will be clear." Subdivision (a)(2), as amended in the 2010 legislation, now requires the court to 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." Unlike the previous versions of this statute, which called for consideration of specified factors (income and needs of each party and other factors affecting ability to pay), subdivision (a)(2) now appears to insist on express findings on the parties' financial needs and abilities to secure legal representation.
In this case, however, the court did make express findings, relying on the only information available to it. As noted, however, those findings were limited because there was to date insufficient evidence about the parties' financial circumstances—in particular, Christian's income, the amount of which was "still in dispute." The court did unequivocally state that Maya's attorney was owed "more than $87,000 to date and that attorney [Benett] has been paid a sum in excess of that." Given Christian's apparent financial circumstances and the lack of "definitive" evidence of his income, the court evidently was not convinced that it was "just and reasonable" to require him to pay the amount Maya sought from him for her own fees. (§ 2032, subd. (a).) We cannot find an abuse of discretion in the court's decision to await more complete and accurate data about the parties' income and needs.
Because the correct amount of both parties' income and the corresponding amount of family support were still at issue in the pending motion to modify support, the court's order denying Maya her attorney fees was tentative and conditional: it was premised on the provisional assumption that Maya was receiving 55 percent of the spendable income of the family ($20,000 of Christian's $36,305 monthly income). In light of the uncertainty regarding this fact, the court made it clear that its order was without prejudice. Subdivision (c) of section 2030 confirms the permissibility of a revision to a fee order when additional evidence is presented, by requiring the court to "augment or modify the original award for attorney's fees and costs as may be reasonably necessary" to enable the parties to litigate the proceeding. Thus, there is nothing barring Maya from again seeking her section 2030 fees upon more complete evidence.
In summary, the court's order reflects its conclusion that there was insufficient current evidence on which to grant Maya's request for pendente lite attorney fees. Maya is free to renew her request with additional evidence derived from further discovery or from litigation over Christian's motion to modify support.
Disposition
The order is affirmed.
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ELIA, J.
WE CONCUR:
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RUSHING, P. J.
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PREMO, J.