Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. FL023263
Siggins, J.
Karl Nicholas appeals an order awarding attorney fees pursuant to Family Code section 2030 to his former spouse, Christine Earnshaw. Because the parties stipulated in their judgment of dissolution that they would bear their own costs and attorney fees in this action, we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2006, the court entered its judgment of dissolution on reserved issues in which the parties stipulated to resolution of various issues, including child custody and visitation, and child and spousal support. The agreement provides under the heading “ATTORNEYS FEES AND COSTS”: “Parties agree they will bear their attorney’s fees and costs in this action.”
In May 2007, Nicholas filed a notice of appeal from an order designating a visitation supervisor. In June 2007, Earnshaw filed a motion seeking attorney fees and costs in anticipation of fees and costs that she would incur to defeat Nicholas’s appeal. Earnshaw argued that there was cause to believe Nicholas was attempting to appeal the entire judgment of dissolution, and she needed to engage counsel to defend the appeal. She requested estimated attorney fees and costs of $15,350. In June 2007, Nicholas filed a declaration opposing the requested orders and pointed out, in relevant part, that the parties’ stipulated judgment provided they would pay their own attorney fees.
Earnshaw also sought to stay the court’s order pending appeal, arguing there was a possibility that a new supervisor might have to be appointed, and “[i]t would clearly not be in the best interests of the child to have to bounce back and forth between different supervisors.”
In July 2007, upon Nicholas’s request, the appeal was dismissed by this court. Counsel for Earnshaw filed a reply declaration in support of her motion for appellate attorney fees and costs, seeking $6,460 for fees and costs actually incurred. The court’s tentative ruling determined the motions were moot due to Nicholas’s dismissal of his appeal, and ordered: “Pursuant to Family Code 2030, [Nicholas] shall pay the sum of $3,000 to [Earnshaw] for attorney’s fees and costs associated with his appeal and motion, within 60 days of the filing and service of the order.” Neither party contested the tentative ruling and it became the final order of the court on July 24, 2007. Nicholas timely appealed.
DISCUSSION
A trial court lacks authority to award attorney fees and costs in violation of the terms of the parties’ court approved marital settlement agreement. (See Fox v. Fox (1954) 42 Cal.2d 49, 53; Gottlieb v. Gottlieb (1957) 155 Cal.App.2d 715, 719; Viera v. Viera (1951) 107 Cal.App.2d 181, 183-184; see also Finnegan v. Finnegan (1954) 42 Cal.2d 762, 765-766; Garrett v. Garrett (1968) 258 Cal.App.2d 407, 419-420; 11 Witkin, Summary of Cal. Law (10th ed. 2005) Husband and Wife, § 187, p. 257.)
Pursuant to agreement of the parties, the judgment of marital dissolution in this case provides “they will bear their attorney’s fees and costs in this action.” Earnshaw does not argue this fee and cost agreement is inapplicable to this dispute. Indeed, she does not address Nicholas’s argument that the parties’ agreement precluded the award of attorney fees and costs by the trial court. Instead, Earnshaw suggests Nicholas waived any defect in the fee award by his failure to contest the tentative ruling of the trial court. But the case she cites to support her waiver argument is inapposite. It involved review of a claim of misconduct by counsel to which no objection was made in the trial court. (Sabella v. Southern Pac. Co. (1969) 70 Cal.2d 311, 319-321.) Here, Nicholas clearly opposed Earnshaw’s request for attorney fees because “[t]he stipulated agreement and order filed January 9, 2006, states that the parties shall each pay their own attorneys fees.” The issue was not waived, and the order awarding costs and attorney fees contrary to the parties’ agreed judgment of dissolution must be reversed.
We do not address Nicholas’s additional arguments that the court failed to follow the correct statutory procedures for awarding costs.
DISPOSITION
The order awarding costs and attorney fees is reversed.
We concur: McGuiness, P. J., Horner, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.