Opinion
G044876 Super. Ct. No. 10D005097
12-21-2011
In re the Marriage of NOEMI and ROBERT BADER NOEMI BADER, Respondent, v. ROBERT BADER, Appellant.
Dombrow & Dombrow, Richard L. Dombrow and Kathleen L. Dombrow for Appellant. Law Offices of Patricia Grace and Patricia J. Grace 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from an order of the Superior Court of Orange County, Kim R. Hubbard, Judge. Affirmed.
Dombrow & Dombrow, Richard L. Dombrow and Kathleen L. Dombrow for Appellant.
Law Offices of Patricia Grace and Patricia J. Grace for Respondent.
Appellant Richard Robert Bader (husband) appeals from an order awarding $20,000 in pendente lite attorney fees to respondent Noemi Bader (wife). Husband contends the court did not consider the relevant statutory factors because it made no express findings. A recent amendment to the governing statute requires the court to make express findings on several factors. Though the court failed to do so here, the lack of express findings is harmless. We affirm.
Wife disputes the order is appealable. But "a direct appeal lies from a pendente lite attorney fees order where nothing remains for judicial determination except the issue of compliance or noncompliance with its terms." (In re Marriage of Weiss (1996) 42 Cal.App.4th 106, 119.) This award is sufficiently final for appeal, despite being "subject . . . to reallocation" — i.e., being charged against the community or one spouse's share of it. (In re Marriage of Schnabel (1994) 30 Cal.App.4th 747, 752; Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2011) § 14:221, pp. 14-58-14-59 (rev. # 1, 2011).)
FACTS
After wife petitioned to dissolve her four-year marriage to husband, he applied for an order to show cause regarding spousal support and certain property issues. He attached an income and expense declaration. He stated he earned $6,250 per month as a physician and had assets exceeding $1.6 million. He reported monthly expenses of just over $6,000 per month.
Wife filed a responsive declaration, in which she requested husband to advance $25,000 for her attorney fees, $5,000 for costs, and $25,000 for a forensic accounting. She stated, "I do not have money to pay for my attorney fees and costs. I do not have the money to pay for the retainer for my new attorney. I tried to borrow the entire retainer fee but I was unable to do so." She attached an income and expense declaration indicating she worked 8 to 16 hours a week as a hair stylist, earning $10 per hour, and had no known assets. She reported monthly expenses of $6,450, all of which were paid by others. She stated she had paid her current attorney $3,000 with borrowed funds, but still owed her $2,000. Her attorney charged $300 per hour. Her attorney signed the declaration to confirm the fee arrangement.
At the February 7, 2011 hearing, the parties entered a stipulation regarding spousal support and property issues, submitting the issue of attorney fees to the court. Husband opposed wife's attorney fee request, arguing "they didn't provide any evidence to support that there are fee requests. There's no fee declaration. There's no evidence of fees rendered, services rendered." Husband also claimed wife failed to complete the income and expense declaration. Wife responded she filled out the declaration, but did not know what assets she might have — she was also asking for husband to advance fees to pay for a forensic accounting.
The court granted wife's request in part. It stated, "The court is going to have [husband] advance, subject obviously to reallocation at a later date, we're going to have you advance $20,000, sir, in attorney's fees." The court ordered husband to pay that sum to wife's counsel within 30 days. It did not order any advance of costs. And it denied the request for accounting fees, stating "I don't think we have sufficient information at this point in time to determine if a forensic is necessary."
DISCUSSION
On appeal, husband claims the order "does not reflect the court's consideration of the appropriate [statutory] factors . . . ." He asserts "the record does not reflect that the court made findings on whether an award was appropriate, as specifically required by [Family Code,] section 2030."
All further statutory references are to the Family Code.
Section 2030 allows the court in a dissolution proceeding to order one spouse to advance attorney fees to the other. "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. v. Superior Court (2009) 172 Cal.App.4th 238, 251 (Alan S.).)
Another statute provides, "The court may make an award of attorney's fees and costs under Section 2030 . . . where the making of the award, and the amount of the award, are just and reasonable under the relative circumstances of the respective parties." (§ 2032, subd. (a).) In determining this, "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." (Id., subd. (b).) These circumstances include the parties' earning capacities (§ 4320, subd. (a)), abilities to pay (id., subd. (c)), obligations and assets (id., subd. (e)).
But section 2030 has evolved over time. As enacted in 1993, section 2030, subdivision (a) provided: "During the pendency of a proceeding for dissolution of marriage . . . the court may, upon (1) determining an ability to pay and (2) consideration of the respective incomes and needs of the parties in order to ensure that each party has access to legal representation to preserve all of the party's rights, order any party . . . to pay the amount reasonably necessary for attorney's fees and for the cost of maintaining or defending the proceeding." (Stats. 1993, c. 219, § 106.1, p. 1607.)
In 2004, section 2030, subdivision (a)(2) was amended to provide: "Whether one party shall be ordered to pay attorney's fees and costs for another party, and what amount shall be paid, shall be determined based upon, (A) the respective incomes and needs of the parties, and (B) any factors affecting the parties' respective abilities to pay." (Stats. 2004, c. 472, § 1, p. 3072.)
Thus, the statute (as written then) required the court to consider various factors, but not to make express findings on them. We could say as late as 2009: "While no particular language is required in an order awarding attorney fees under sections 2030 and 2032, the record (including, but not limited to, the order itself), must reflect an actual exercise of discretion and a consideration of the statutory factors in the exercise of that discretion." (Alan S., supra, 172 Cal.App.4th at p. 254.) As long as the record as a whole showed the court considered the statutory factors, the order itself did not need to contain express findings.
That changed effective January 1, 2011. Section 2030, subdivision (a)(2), was amended to provide: "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." (Stats. 2010, c. 352, § 4, p. 1819.)
Thus, the statute now requires express findings. That is the only reasonable construction of the new phrase, "the court shall make findings . . . ." (§ 2030, subd. (a)(2).) Before amendment, the statute already required the court to consider the parties' income, needs, and abilities to pay. (Stats., supra, c. 472, § 1, p. 3072.) The addition of the phrase, "the court shall make findings," would be meaningless if construed to allow implied findings. An implied finding is just a mental step made in the process of considering. For the amendment to make a demonstrable difference in the court's adjudication of pendente lite attorney fee requests, it must contemplate an additional step beyond considering the relevant factors — the findings thereon now must be express.
Before section 2030 was amended, the Elkins Family Law Task Force had recommended courts make findings on pendente lite fee requests to increase representation by counsel in family law cases. "Courts should give careful attention to making early needs-based attorney fee awards rather than deferring the issue to trial. This would minimize the imbalance in ability to hire counsel between litigants in a family law case. When a request for needs-based attorney fees is made, the court should make findings regarding whether the award of fees is necessary, whether there is disparity in access to funds or income, and whether one party is able to pay. If the findings demonstrate need, disparity in access, and ability to pay, the court should make an order awarding attorney fees." (Jud. Council of Cal., Admin. Off. of Cts., Elkins Family Law Task Force: Final Rep. and Recommendations (Apr. 2010), p. 60.)
Accordingly, the amended statute directs the California Judicial Council to "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." (§ 2030, subd. (e); see Stats., supra, c. 352, § 4.) The Judicial Council recently approved a new form (FL-346), entitled "Attorney's Fees and Costs Order Attachment." (Jud. Council of Cal., Agenda for Oct. 28, 2011 Business Meeting, Consent Agenda Item A18, available at http://www.courts.ca.gov/documents/age20111028-JC_posted.pdf.> [as of Dec. 21, 2011]; Jud. Council. of Cal., Transcript of Oct. 28, 2011 Business Meeting, at p. 14, available at http://www.courts.ca.gov/documents/102811JCCAtranscript.pdf> [as of Dec. 21, 2011].) Effective January 1, 2012, the court can check boxes on the form to indicate it has found: "An award of attorney's fees and costs is appropriate because there is a demonstrated disparity between the parties in access to funds to retain or maintain counsel and in the ability to pay for legal representation"; "The party requested to pay attorney's fees and costs has or is reasonably likely to have the ability to pay for legal representation for both parties"; and "The requested attorney's fees and costs are reasonable and necessary." (Jud. Council of Cal., Agenda, for Oct. 28, 2011 Business Meeting, Consent Agenda, supra.)
Here, neither counsel alerted the court to the new statutory language. No party requested express findings. Understandably, the court did not make any. But the amended statute plainly required the court to make them.
Yet the court's failure to make the required express findings is not necessarily reversible. The child support context provides guidance. The court has statutory duties to state "in writing or on the record" its reasons for ordering an award different from the child support guideline amount (§ 4056, subd. (a)) or for granting a hardship deduction when calculating a parent's income (§ 4072). But in neither case does the court's failure to state its reasons lead to automatic reversal. To the contrary, "we are enjoined by our Constitution from imposing a reversible-per-se rule here." (In re Marriage of Carlsen (1996) 50 Cal.App.4th 212, 218 [hardship deduction]; accord Cal. Const., art. VI, § 13.) The failure to make express findings is harmless unless "the missing information is not otherwise discernible from the record." (In re Marriage of Hubner (2001) 94 Cal.App.4th 175, 183 [guideline divergence].) "[T]he failure to make a material finding on an issue supported by the pleadings and substantial evidence is harmless when the missing finding may reasonably be found to be implicit in other findings" or "when, under the facts of the case, the finding would necessarily have been adverse to the appellant." (Rojas v. Mitchell (1996) 50 Cal.App.4th 1445, 1450 [guideline divergence].)
Here, any error was harmless because the omitted findings can be discerned from the record. Wife's income and expense declaration showed she had no known assets and earned $320 a month on average as a hair stylist. Others paid her monthly expenses of $6,450. On the other hand, husband's income and expense declaration showed he had assets exceeding $1.6 million and earned $6,250 per month as a physician. He reported monthly expenses of just over $6,000 per month. This information gave the court an adequate basis to make the required "income and needs assessments . . . ." (§ 2030, subd. (a)(1).) It allowed the court to determine the parties' assets, earning capacities, obligations, and ability to pay for counsel. (§ 4320, subds. (a), (c), (e).) And so it sufficiently supports implied findings that "an award of attorney's fees and costs under this section is appropriate, . . . there is a disparity in access to funds to retain counsel, and . . . one party is able to pay for legal representation of both parties." (§ 2030, subd. (a)(2).)
Husband notes wife offered no billing statements to support her fee request. But wife provided her counsel's hourly rate ($300 per hour) and anticipated fees ($25,000). This allowed the court to work out the projected number of billed hours (i.e., 83.33). Beyond that, the court "may employ its own experience in fixing the amount of the award." (In re Marriage of Dick (1993) 15 Cal.App.3th 144, 167 [affirming award of $750,000 in future attorney fees, even though only $500,000 was requested].) "Direct evidence of the reasonable value of an attorney's services need not be introduced 'because such evidence is necessarily before the trial court which hears the case.'" (In re Marriage of McQuoid (1991) 9 Cal.App.4th 1353, 1361 [affirming award].) And husband never specifies what type of additional evidence must be submitted before the court awards prospective attorney fees — which, by definition, have not yet been actually incurred.
Husband's cited cases are inapt. In re Marriage of Keech (1999) 75 Cal.App.4th 860, reversed a pendente lite attorney fee award because the record did not justify the "out of proportion" fee amount (id. at p. 871) or "such sizeable monthly installments" (id. at p. 868), and the "trial court's decision [did] not reflect consideration" (id. at p. 867) of the relevant factors. In re Marriage of Zywiciel (2000) 83 Cal.App.4th 1078, reversed a pendente lite spousal support award because "there was no evidence offered on many of the section 4320 factors"; "[m]ost notably absent was any mention of [the wife's] assets . . . ." (Id. at p. 1082.) Thus, the ground for reversal in these cases was the dearth of evidentiary support for the award, not the court's failure to state its findings. In contrast, the record here abundantly supports the award. And the court's decision to award only $20,000 in pendente lite attorney fees, instead of the $25,000 that wife sought, and its refusal to award forensic accounting fees shows it did not "'summarily'" accede to wife's request. (Alan S., supra, 172 Cal.App.4th at p. 255.)
(See also Alan S., supra, 172 Cal.App.4th at p. 255 ["the record certainly does not show consideration of any number of the relevant factors"; the fee award wrongly compensated "unreasonable overlitigation"]; In re Marriage of Braud (1996) 45 Cal.App.4th 797, 826 [husband did not dispute wife incurred over $9,000 in attorney fees, but "the trial court awarded [wife] only $500 in attorney fees and offered no explanation for this drastic reduction of the amount claimed"].)
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In short, the pendente lite attorney fee award is amply supported by the record and the implied findings readily discernible from it. This renders harmless the lack of express findings now required by section 2030, subdivision (a)(2).
DISPOSITION
The order is affirmed. Wife shall recover her costs on appeal.
IKOLA, J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
O'LEARY, J.