Opinion
H046858
04-17-2020
In re the Marriage of ANN MARIE BARRAGAN BURNS and ROBERT R. BURNS. ANN MARIE BARRAGAN BURNS, Respondent, v. ROBERT R. BURNS, Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Benito County Super. Ct. No. FL-15-00192)
Appellant challenges a postjudgment order awarding him $15,000 in attorney fees under Family Code sections 2030 and 2032 and asserts the trial court erred by awarding an amount that was significantly less than the $49,000 he requested and by failing to make certain findings. Appellant has not persuaded us the trial court abused its discretion or committed prejudicial error. We therefore affirm the order.
Unspecified statutory references are to the Family Code.
I. FACTS AND PROCEDURAL BACKGROUND
Appellant Robert Burns and respondent Ann Marie Barragan Burns married in October 2000 after dating for several years and having a daughter together. In April 2012, Robert and Ann Marie separated. In May 2015, Ann Marie filed a petition for dissolution of the marriage.
For clarity, we refer to the parties by their first names.
In June 2018, when the parties signed a marital settlement agreement (MSA), Robert was 60 years old and retired. He had worked as a county correctional officer from 1982 until his retirement in April 2010. Robert's monthly income included a $7,861 pension payment and $6,000 in temporary spousal support ($13,861 total). Ann Marie was 55 years old and self-employed at A. M. Barragan Insurance Services—an insurance sales business that she owned. She had worked in that capacity since January 1992 and by 2018 earned a monthly income of $70,000.
A. Prior Fee Orders
Prior to the February 2019 fee order at issue in this appeal, the trial court issued three orders with respect to attorney fees and costs requested by Robert.
On March 30, 2016, Robert filed a request for pendente lite attorney fees and temporary spousal support. Robert sought $15,000 for attorney fees and $10,275 for costs ($25,275 total). On June 13, 2016, the trial court issued an order on Robert's March 2016 request. Pursuant to an April 2016 stipulation of the parties, the trial court ordered Ann Marie to pay Robert's counsel $20,000 in attorney fees. The funds were "uncharacterized pending the final resolution of this case by Agreement or Court Order."
In February 2017, Robert requested attorney fees, pursuant to section 2030 et seq. Robert declared that he owed his counsel $12,081.30 through December 31, 2016. Robert requested that Ann Marie be ordered to pay his outstanding balance of $12,081.30 and provide $20,000 for future fees and costs ($32,081.30 total). At a hearing on February 17, 2017, the trial court reserved jurisdiction over Robert's request for attorney fees and costs.
In April 2017, Robert again sought attorney fees and costs, pursuant to sections 271 and 2030 et seq. He requested that Ann Marie be ordered to pay the $24,216.11 he currently owed his counsel, plus $20,000 for future attorney fees and $20,000 for costs ($64,216.11 total). On May 16, 2017, the trial court held a hearing on Robert's request. The trial court denied Robert's request for past attorney fees (i.e., the $24,216.11 Robert owed his counsel). The trial court, however, awarded Robert $20,000 for prospective attorney fees. The trial court issued a written order on May 31, 2017, reflecting its prior oral ruling.
On August 29, 2017, after further hearing, the trial court entered another order on Robert's April 2017 request. The trial court ordered Ann Marie to pay $10,000 toward Robert's expert costs. The trial court denied Ann Marie's request to reserve jurisdiction over the "characterization and/or allocation" of the $10,000.
B. The Marital Settlement and Judgment on Reserved Issues
On August 21, 2018, the trial court entered a judgment on reserved issues. The judgment incorporated the parties' June 2018 MSA. Under the MSA, the parties agreed that Ann Marie would pay Robert $10,000 in monthly spousal support from June 2018 through June 2020, with a reduction to $8,000 monthly from July 2020 through July 2023, and another reduction to $6,000 monthly from August 2023 through August 2028. In addition, the MSA confirmed various community property and separate property assets to the parties. It also provided that Ann Marie would pay a $300,000 equalization payment to Robert "to achieve an equitable division of the community property."
The trial court had previously issued a status-only judgment of dissolution on October 31, 2016.
C. Robert's Postjudgment Request for Attorney Fees
1. Robert's Request
In November 2018, Robert filed a postjudgment request for $49,000 in attorney fees pursuant to section 2030 et seq. It is the trial court's February 2019 order on this request that Robert challenges in this appeal.
In his November 2018 request, Robert argued there was a disparity in his and Ann Marie's respective incomes and that Ann Marie had the ability to pay attorney fees for both of them. He maintained that his attorney fees were reasonable and just, and a fee award was mandatory given his and Ann Marie's relative wealth. Robert submitted a supporting declaration in which he stated facts relevant to the factors set forth in section 4320.
In his request, Robert noted that Ann Marie had already been ordered to pay $40,000 for his attorney fees and costs, "$20,000 from community property" in April 2016, and "$20,000 from separate property" in May 2017. He confirmed that Ann Marie had paid the $40,000 as ordered.
Robert did not mention the $10,000 in expert costs that Ann Marie had been ordered to pay in August 2017.
In a declaration signed on November 9, 2018, Robert's counsel stated that Robert currently owed counsel $54,323.87. This balance included $4,716.11 in unpaid fees remaining on the $24,216.11 that Robert had to pay after the trial court declined to assign those fees to Ann Marie in May 2017. Counsel said that Robert had paid $19,500 against the $24,216.11 since the trial court's denial in May 2017, leaving a difference of $4,716.11.
To arrive at the $49,000 in attorney fees requested, Robert's counsel subtracted the $4,716.11 from the full amount Robert currently owed and then rounded down (i.e., $54,323.87 - $4,716.11 = $49,607.76). In a declaration submitted with the request, Robert's counsel provided a bulleted list of the "fees incurred since [her] last declaration" filed in April 2017. In 11 bulleted paragraphs, counsel described work done on the case between May 2017 and October 2018 and provided dollar amounts for each entry. Counsel asserted that "many fees were incurred on propounding discovery then reviewing and analyzing its contents." Although counsel did not compute the total of the amounts provided for each of the 11 entries in her declaration, that amount is $63,097.11. Counsel said she would "bring the actual invoices for the Court's inspection and review to the hearing," although the invoices were not mentioned at the subsequent hearing on Robert's request and are not included in the record on appeal. Although Robert's counsel noted that Ann Marie had paid the $20,000 for future fees, as ordered in May 2017, counsel did not provide any information accounting for that $20,000 payment when she described how much Robert now owed her or the fees incurred since the earlier April 2017 request.
Robert urged the trial court to consider that Ann Marie had paid her own attorney over $70,000, retained a separate tax attorney and paid him an undisclosed amount, purchased a property in Hollister worth $200,000 with cash in January 2016, purchased a property in Memphis for $250,000 in cash in August 2016, owns approximately $89,000 in jewelry and handbags, spends over $3,000 per month to lease luxury vehicles, had at least $25,000 in her bank account as of March 2018, and had sold or would be selling a property in Hollister for a profit exceeding $450,000 to pay off her tax liabilities. Robert asserted that Ann Marie's assets and monthly income vastly exceeded his. Robert was living on his pension and spousal support, and Ann Marie was working and earning an income similar to that she had earned during the marriage (i.e., in excess of $70,000 per month).
In his November 2018 income and expense declaration, Robert said he received $8,164 from his pension, $10,000 in spousal support, and a little more than $1,000 in rental income (on average over the preceding four months). He estimated that he had $1 million in property and $7,000 in cash or liquid accounts. His total monthly expenses (actual and estimated) were $14,801. This amount included listed installment payments totaling $8,086, including $3,397 in miscellaneous expenses that Robert paid for his and Ann Marie's daughter. However, Robert subsequently declared that he paid $2,000 per month, on average, for their daughter's expenses. Robert asserted that he was making the $1,000 monthly payments to his counsel at the expense of paying his mounting tax debt and "will owe over $50,000 for taxes in 2018."
Robert also alleged that Ann Marie owed him $20,000 for spousal support arrears.
2. Ann Marie's Opposition
In a response filed on December 12, 2018, Ann Marie opposed Robert's request for attorney fees and costs. Ann Marie contended that each party should pay his or her own fees. Ann Marie argued that she had paid $40,000 of Robert's attorney fees to date and contended should receive half credit for the $26,322 in attorney fees paid by Robert from his community property "401K," for a total of $53,161 credit.
Ann Marie arrived at the $53,161 figure by adding $40,000 to one half of the $26,322 in attorney fees that Robert said had been paid, to date, in his April 2017 income and expense declaration (i.e., $40,000 + ($26,322 ÷ 2) = $53,161). We note that Ann Marie took inconsistent positions before the trial court with respect to whether the $26,322 included the $20,000 Ann Marie had paid prior to April 2017.
Furthermore, Ann Marie disputed that Robert had been providing their daughter the amount of money he claimed. Ann Marie maintained that her net monthly income was $37,994 and her monthly expenses exceeded her income by $1,956. She had had to sell a condominium and a car to cover her tax payments, and recently had borrowed $50,000 to pay her expenses. In an income and expense declaration, Ann Marie reported that she had paid her counsel approximately $70,000 in attorney fees and costs with a $5,000 retainer. She currently owed her counsel $2,900.
3. Hearing on the Postjudgment Attorney Fee Request
On January 22, 2019, the trial court held a hearing on Robert's postjudgment request for $49,000 in attorney fees. Due to the retirement of the judge who had previously presided over the matter, the judge who presided at the hearing was newly assigned to the case.
Ann Marie's counsel argued that Robert was "now asking again for $24,000 that was denied on 5/31/17 by the prior judge" and provided a chart to the trial court listing the prior orders on attorney fees and stating various figures from Robert's income and expense declarations regarding his fee balances and payments to Robert's counsel. Counsel argued that, according to Robert's income and expense declarations, he currently owed his counsel no more than $14,000. Counsel maintained that Robert had "accumulated $82,973 in fees." Counsel argued that the "problem is that [Robert's counsel is] asking for $35,000 more in fees than were incurred. That's a $49,000 request when there's a $14,000 need" to pay off Robert's outstanding balance.
Robert's counsel argued that the amount Robert sought currently "does not include the fees that were denied" in May 2017 (i.e., the $24,216 balance as of April 2017), and those previously denied fees "ha[ve] been specifically excluded from . . . this request, and segregated as such and fully disclosed." Counsel reiterated that the total amount Robert actually owed was currently over $53,000.
The trial court said it "need[ed] time" to consider Robert's request. The trial court also said it would review the chart provided by Ann Marie and confirm that the "math is accurate." The trial court took Robert's request under submission. Robert did not request a statement of decision.
The chart was not marked as an exhibit at the hearing or filed with the trial court. Instead, it was given to Robert's counsel minutes before the hearing and provided to the trial court during the hearing, without objection. On appeal, Ann Marie filed a motion to augment the record to include a copy of the chart. This court granted the motion 10 days after it was filed. That is, this court issued its order prior to the 15 days allowed by the California Rules of Court to serve and file an opposition to a motion. (Cal. Rules of Court, rule 8.54(a)(3) & (b)(1).) In his reply brief, Robert objects to this court's augmentation order.
We reject Robert's objection because the record was properly augmented to include the chart under California Rules of Court, rule 8.155. "The rule allowing record augmentation 'is to be construed liberally' and allows a party to supplement the appellate record with any materials that were before the trial court." (Global Modular, Inc. v. Kadena Pacific, Inc. (2017) 15 Cal.App.5th 127, 152, fn. 5.) Although the chart was not entered as an exhibit or formally lodged with the trial court, it distilled information that is included or otherwise mentioned in the trial record and was provided to the trial court as a demonstrative aid and considered by the trial court. For these reasons, we conclude the chart was properly included in the record on appeal. (Ibid.) Although the chart is part of the record on appeal, we have not relied on its contents in reaching our decision.
4. Trial Court Order
On February 28, 2019, the trial court issued its findings and order after hearing granting Robert an award of $15,000 in attorney fees and costs. Using the Judicial Council's form titled "Attorney's Fees and Costs Order Attachment" (FL-346, Jan. 1, 2012), the trial court found that a fee award was appropriate because: (1) there was a disparity in the parties' access to funds to pay legal fees; (2) Ann Marie had or would be reasonably likely to have the ability to pay legal fees for both parties; and (3) the requested attorney fees and costs were reasonable and necessary. The trial court also found that Robert had "incurred additional costs based on the nature of the issues and burden in discovery as outlined in [his] moving papers."
The trial court ordered Ann Marie to pay $15,000 toward Robert's attorney fees incurred to date, payable directly to Robert's counsel in $1,000 monthly installments beginning on April 1, 2019.
Robert's counsel did not ask the trial court for a statement of decision regarding the order or seek reconsideration of it in the trial court. On March 26, 2019, Robert filed a notice of entry of findings and order after hearing. On April 25, 2019, Robert filed a notice of appeal from the order under Code of Civil Procedure section 904.1, subdivision (a)(2).
II. DISCUSSION
Robert contends the trial court abused its discretion in reducing the attorney fee award from the $49,000 he requested to $15,000 and by failing to make adequate findings to support the reduced award under sections 2030, 2032, and 4320. In addition, Robert claims he is entitled to recover reasonable attorney fees needed to bring this appeal. We will address each of Robert's claims in turn.
A. Attorney Fees Awarded by the Trial Court
Robert contends that an award of attorney fees was mandatory because there was a disparity between his and Ann Marie's ability to access and pay for legal representation. Robert argues that he should not be "relegated to using his need-based spousal support" to fund the complicated and protracted litigation over his community property interest in Ann Marie's insurance business and enforcement of the judgment. Robert claims further that he was forced to incur reasonable attorney fees by Ann Marie's "uncooperativeness, frivolous objections to the discovery required to identify, characterize and value the community property interest in her successful insurance business, and failure to pay her tax obligations, thereby resulting in tax liens which attached to real property confirmed to Robert in the parties' Marriage Settlement Agreement."
In addition, Robert claims there was "no dispute" at the time of the hearing on his postjudgment request, that he owed his counsel an unpaid balance of $49,000 in attorney fees incurred during the preceding 18 months for investigation, discovery, expert consultations, evidentiary hearings, motions, settlement discussions, and mediation. He also maintains that Ann Marie did not challenge the time spent on the case or fees charged as unreasonable. "Rather, the parties dispute[d] only the source and character of attorney fee payments that had been made to Robert's attorneys in the past (i.e. the respective amounts of dollars paid by Robert, by Ann Marie, and from their community property)." Robert argues that, in light of the trial court's findings about the disparity in the parties' ability to pay, the reasonableness and necessity of the fees he requested, the nature of the issues in the case, and the burden of discovery, the trial court's award of less than one-third of the actual attorney fees incurred amounts to an abuse of discretion. Robert also argues that the trial court failed to make adequate findings to support its reduction of attorney fees that it had deemed reasonable and necessary.
1. Legal Principles
Sections 2030 and 2032 govern the award of need-based attorney fees and costs in marriage dissolution proceedings. (In re Marriage of Ciprari (2019) 32 Cal.App.5th 83, 111.) Under those provisions, "the trial court is empowered to award fees and costs between the parties based on their relative circumstances in order to ensure parity of legal representation in the action. It is entitled to take into consideration the need for the award to enable each party to have sufficient financial resources to present his or her case adequately. In assessing a party's relative need and the other party's ability to pay, it is to take into account ' " 'all evidence concerning the parties' current incomes, assets, and abilities.' " ' [Citation.] That a party who is requesting fees and costs has the resources is not, by itself, a bar to an award of part or all of such party's fees. Financial resources are only one factor to consider. [Citation.] The trial court may also consider the other party's trial tactics." (In re Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 974-975, fn. omitted (Falcone & Fyke).)
Section 2030, subdivision (a)(1), provides: "In a proceeding for dissolution of marriage . . . , and in any proceeding subsequent to entry of a related judgment, the court shall ensure that each party has access to legal representation . . . by ordering, if necessary based on the income and needs assessments, one party . . . 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." Section 2030, subdivision (a)(2), provides: "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." Subdivision (c) of section 2030 provides that "[t]he 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."
Section 2032, subdivision (a), states: "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." Section 2032, subdivision (b), states: "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." The "circumstances of the respective parties described in Section 4320" (ibid.) include earning capacity, contributions made to the education or career of the supporting party, ability to pay, needs, obligations and assets, duration of the marriage, age and health, tax consequences, balance of hardships, and "[a]ny other factors the court determines are just and equitable." (§ 4320, subds. (a)-(n).)
If the trial court finds a "disparity in access to funds to retain counsel" and that "one party is able to pay for legal representation of both parties," an award of attorney fees is mandatory. (§ 2030, subd. (a)(2) ["the court shall make an order awarding attorney's fees" where findings of income disparity and ability to pay]; see also In re Marriage of Morton (2018) 27 Cal.App.5th 1025, 1029-1030, 1049-1050 (Morton).)
The "proper legal standard for determining an attorney fee award requires the trial court to determine how to apportion the cost of the proceedings equitably between the parties under their relative circumstances. [Citation.] In making this determination, the trial court has broad discretion in ruling on a motion for fees and costs; we will not reverse absent a showing that no judge could reasonably have made the order, considering all of the evidence viewed most favorably in support of the order." (Falcone & Fyke, supra, 203 Cal.App.4th at p. 975; In re Schleich (2017) 8 Cal.App.5th 267, 295.)
2. Analysis
The trial court found that a fee award was appropriate here because there was a disparity between Robert's and Ann Marie's access to funds to pay legal fees, Ann Marie had the ability to pay her own and Robert's legal fees, the fees requested were reasonable and necessary, and Robert had incurred additional fees because of the nature of the issues and discovery in the case.
Ann Marie does not challenge the decision of the trial court to award fees to Robert for the trial court proceedings; thus, the only issue before us is Robert's claim that the trial court abused its discretion in setting the amount of his fee award at $15,000 rather than the $49,000 he requested.
On appeal, Robert bears the burden of demonstrating the trial court abused its discretion. (In re Marriage of Pearson (2018) 21 Cal.App.5th 218, 234-235.) "All intendments and presumptions are indulged to support [a judgment] on matters as to which the record is silent." (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Further, as "[t]he family court has broad discretion in ruling on a motion for fees and costs; we will not reverse absent a showing that no judge could reasonably have made the order, considering all of the evidence viewed most favorably in support of the order." (In re Marriage of Winternitz (2015) 235 Cal.App.4th 644, 657.) For the reasons set out below, we conclude Robert has not carried his burden of showing error.
The trial court stated its findings and order on the appropriate Judicial Council form. Although the trial court did not articulate specific reasons why it set the amount of the award at $15,000, the court made all the findings required by section 2030, subdivision (a)(2). (See Morton, supra, 27 Cal.App.5th at p. 1050.) It did so by adopting the preprinted findings (numbered 1. and 1.a.) on the Judicial Council form regarding the appropriateness of the award, the financial disparity between the parties, and the ability of Ann Marie to pay legal fees for both parties. Having found that an award was appropriate, the trial court was not further required to explain why it chose the amount it did or otherwise issue a statement of decision. (See Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 67 (Gorman); Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140; Falcone & Fyke, supra, 203 Cal.App.4th at p. 981; In re Marriage of Askmo (2000) 85 Cal.App.4th 1032, 1040.)
We acknowledge the "general point [] that family court rulings should be explained to the parties in such a way that they can understand why the judge ruled the way he or she did." (In re Marriage of Shaban (2001) 88 Cal.App.4th 398, 410.) However, the failure of the trial court to provide specific reasons for a particular fee award does not alone amount to an abuse of discretion. What matters is whether the trial court actually exercised its discretion and considered the relevant statutory factors when making its ruling. (See Alan S. v. Superior Court (2009) 172 Cal.App.4th 238, 254 (Alan S.).) "The absence of an explanation of a ruling may make it more difficult for an appellate court to uphold it as reasonable, but we will not presume error based on such an omission. . . . In the absence of evidence to the contrary, we presume that the trial court considered the relevant factors." (Gorman, supra, 178 Cal.App.4th at p. 67.)
Here, the trial court had before it several declarations of counsel and the parties (including income and expense declarations and Robert's supporting declaration addressing the factors in section 4320), as well as points and authorities. The trial court also heard arguments from counsel before it took Robert's request under submission. We find nothing in the record that suggests the trial court neglected or refused to consider any information before it.
Far from summarily rejecting any of the evidence or arguments proffered by the parties, the trial court told the parties it was "going to need time" to consider the request. The trial court took more than a month to issue its ruling. Thus, this case is not like those cited by Robert in which the record indicated the trial court failed to consider requisite statutory factors or information presented to it. (Cf. In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1314 (Tharp) ["the record discloses that the family court abused its discretion by affirmatively refusing and failing to exercise that discretion"]; In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 318 (Cheriton) [concluding "that the court abused its discretion by refusing to consider the fee request on its merits"].) Here, it is reasonable to infer that the trial court considered the relevant statutory factors along with all available information related to Robert's request.
We have carefully reviewed the record and scrutinized the figures cited by both parties justifying their respective attorney fee requests—that is, Robert's request of $49,000 and Ann Marie's contention that she should not have been required postjudgment to pay any more of Robert's attorney fees. We have observed a number of discrepancies in the parties' arguments and calculations, particularly in accounting for the fees Robert incurred, the source of Robert's prior fee payments and "credit" for those payments, and Ann Marie's contention that Robert's attorney "misapplied" the interim fees awarded by the trial court and was only owed around $14,000.
Nevertheless, we need not resolve those issues here, as they do not persuade us that the trial court abused its discretion in setting the fee award at $15,000. The record includes sufficient evidence to conclude that Robert was provided an amount that was reasonably necessary and "just and reasonable under the relative circumstances of the respective parties." (§§ 2030, subds. (a)(1) & (c), 2032, subd (a).)
At the time of his November 2018 request, Robert possessed significant financial resources. He had $7,000 in cash or liquid accounts and $1 million in other assets, including about $102,000 in a deferred compensation account and two rental properties valued at over $200,000. In addition, Robert had a gross monthly income of more than $9,000, not including his $10,000 monthly spousal support under the MSA. Robert claimed monthly expenses of $14,801 in his November 2018 income and expense declaration.
Although it would be inappropriate to consider spousal support intended to defray living expenses when awarding attorney fees (Tharp, supra, 188 Cal.App.4th at pp. 1315-1316 ["A spouse should not have to utilize support payments designed to pay living expenses to fund litigation in the dissolution proceeding."]; In re Marriage of Hatch (1985) 169 Cal.App.3d 1213, 1220), Robert's assets and monthly gross pension and rental income were substantial, of themselves. Moreover, Robert seemingly was able to manage $1,000 installment payments to his counsel each month for more than a year before he made his request for fees in November 2018—though he claimed the payments affected his tax debt. It appears from the record that Robert was not powerless to adjust his discretionary expenses. As for Ann Marie, she, too, had substantial assets and income. But she also had a negative monthly cash flow of $1,956 in December 2018. Expenses are relevant to attorney fee orders, and the trial court was entitled to consider this factor. (Alan S., supra, 172 Cal.App.4th at p. 253.)
Although Robert's financial resources do not preclude him from receiving a need-based fee award, the trial court could properly have considered his resources as "one factor . . . in determining how to apportion the overall cost of the litigation equitably between [Robert and Ann Marie] under their relative circumstances" when deciding what award amount was just and reasonable. (§ 2032, subd (b); see, e.g., In re Marriage of Duncan (2001) 90 Cal.App.4th 617, 631 [upholding a denial of fees where the parties each has "adequate resources to litigate the controversy"]; In re Marriage of M.A. & M.A. (2015) 234 Cal.App.4th 894, 903 [upholding a reduced award where the trial court considered the incomes and expenses and awarded approximately one-third of the attorney fees actually incurred based on the significant disparity in the parties' cash assets and its effect on their respective abilities to fund the litigation].)
Furthermore, the trial court could properly have considered that Ann Marie had paid $40,000 in attorney fees for Robert by the time he requested the additional $49,000. When the $15,000 award is added to the $40,000 Ann Marie had already paid, she paid $55,000 toward Robert's overall attorney fees. And Robert paid a total of $67,366.11 toward his overall attorney fees—accounting for the $34,000 he had to pay because the trial court only partially granted his request. Thus, Ann Marie paid approximately 45 percent of Robert's total attorney fees. In light of the financial circumstances of the parties here, the trial court acted reasonably and within its broad discretion when it apportioned the burden for attorney fees in this manner. (See In re Marriage of Turkanis & Price (2013) 213 Cal.App.4th 332, 356-357.)
The $67,366.11 is arrived at by adding $29,650 (the amount Robert had paid as of January 2019) to $3,716.11 (the outstanding balance on the denied amount of $24,216.11 as of January 2019) and $34,000 (the amount Robert owed after his $49,000 request is reduced by the $15,000 Ann Marie was ordered to pay).
We are not persuaded by Robert's reliance on In re Marriage of Braud (1996) 45 Cal.App.4th 797, as support for his argument that the trial court abused its discretion by awarding him a reduced amount for his attorney fees. Braud is factually distinguishable because the record there "contain[ed] overwhelming evidence that . . . [the requesting party] had no assets other than her share of the family home, no income other than child support, and only the most minimal earning ability." (Id. at p. 827, fn. omitted.) Moreover, the court in Braud concluded "[t]here was no apparent reason for the trial court's [unexplained] decision to award fees so grossly disproportionate to those actually charged to the client." (Id. at pp. 827-828.) In the present case, there is sufficient reason in the record for the reduced award.
Other cases cited by Robert similarly do not compel a conclusion that the trial court in the present case abused its discretion. In In re Marriage of Harrison (1986) 179 Cal.App.3d 1216, the court reversed the denial of a request for attorney fees in part because the requesting party's "only income was her spousal support." (Id. at pp. 1231-1232.) Here, Robert had monthly, non-support income of more than $9,000. In In re Marriage of Fransen (1983) 142 Cal.App.3d 419, the court observed that it was "at a loss in understanding th[e] award" and concluded "nothing in the record support[ed] an award of only $1,500" or about 13 percent of the original request of $11,855. (Id. at pp. 425- 427.) By contrast, the record here provides support for the award and the reduction percentage is significantly less than that in Fransen.
Having carefully reviewed the record and considered all of the arguments of the parties, we conclude Robert has not shown that no judge could reasonably have awarded the reduced amount of $15,000 in attorney fees. Accordingly, we find no abuse of discretion.
B. Attorney Fees and Robert's Cost on Appeal
Robert claims he is entitled to recover reasonable attorney fees needed to bring this appeal. He asks this court to order Ann Marie to pay his attorney fees and costs for the appeal.
Subdivision (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 or defense of the proceeding, or any proceeding related thereto, including after any appeal has been concluded." In light of this provision, we believe that Robert's request for attorney fees on appeal is best addressed, in the first instance, to the trial court. (See Cheriton, supra, 92 Cal.App.4th at p. 320; In re Marriage of Schofield (1998) 62 Cal.App.4th 131, 140-141; In re Marriage of Paulin (1996) 46 Cal.App.4th 1378, 1385; cf. Morton, supra, 27 Cal.App.5th at p. 1054.) Because the matter is within the discretion of the trial court, we express no opinion as to the propriety or amount of any such award made after an appropriate motion in the trial court.
III. DISPOSITION
The trial court's February 28, 2019 order awarding $15,000 in attorney fees is affirmed. Respondent is awarded costs on appeal.
/s/_________
Danner, J. WE CONCUR: /s/_________
Elia, Acting P.J. /s/_________
Bamattre-Manoukian, J.