Opinion
A146337
02-16-2017
In re the Marriage of Matthew W. Clarke and Claudia G. Akel. MATTHEW W. CLARKE, Respondent, v. CLAUDIA G. AKEL, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Mateo County Super. Ct. No. FAM0120913)
In this marital dissolution proceeding, the trial court made an interim $60,000 award of attorney fees (Fam. Code, § 2030) to Claudia G. Akel over a three-month period. Shortly thereafter, the court denied Akel's request for additional attorney fees and costs. Akel appeals, contending the court erred by denying her attorney fee request without considering the factors in Family Code section 2030.
All undesignated statutory references are to the Family Code. Clarke seeks sanctions against Akel's counsel for filing a frivolous appeal. We decline to award sanctions because Clarke has not complied with California Rules of Court, rule 8.276, which requires a party seeking such sanctions to file a motion, supported by a declaration supporting the amount of the sanction sought. (Cal. Rules of Court, rule 8.276(b)(1).)
FACTUAL AND PROCEDURAL BACKGROUND
Clarke and Akel married, and have one minor child. In 2013, Clarke petitioned to dissolve the marriage. In early 2014, the parties agreed on a visitation schedule, and Clarke agreed to provide Akel $4,000 per month for her "living expenses and housing." In March 2015, the court ordered Clarke to provide Akel with an "unallocated sum for attorneys fees . . . in the amount of $30,000[.]"
In April 2015, Akel moved for various orders on issues pertaining to child support, and the child's schooling and visitation schedule. Akel sought $3,042 in attorney fees and costs incurred in filing the motion, supported by an income and expense declaration (Form FL-150), Request for Attorney's Fees and Costs Order Attachment (Form FL-319), Supporting Declaration for Attorneys' Fees and Costs Order Attachment (Form FL-158) and a declaration from her attorney averring Akel's fees and costs "until now are in excess of $64,000[.]" Akel averred she is a full-time community college student, and does not work. She noted Clarke owned two businesses, had "over a million dollars" in investments, significant retirement savings, and "about $51,278 in cash, checking accounts, savings, . . . and other deposit accounts." Akel noted Clarke owned two houses, both of which were "entirely or partially community property[.]"
As relevant here, Clarke opposed Akel's request for attorney fees. Clarke noted the court had awarded Akel $30,000 in attorney fees in May 2015 and, as a result, she was "not in need of an award of attorney's fees at this time." He filed a supporting income and expense declaration. In reply, Akel claimed she was entitled to attorney fees because Clarke had a "higher income" and substantial savings, whereas she was "a full-time student" with "no access to funds." According to Akel, the funds she had been advanced were "lower than" what she owed her attorney. In a supplemental declaration, Akel stated: "I need the attorney's fees and costs for this motion. I owe my attorney money[.]"
In May 2015, the court awarded Akel an "unallocated advance of $30,000" payable to Akel's attorney.
The parties focused on custody issues at the July 2015 hearing. At the conclusion of the hearing, counsel for Akel referred to her attorney fees request, and the following colloquy occurred:
"THE COURT: I have ordered [$]60,000 in attorneys fees so far? [¶] . . . [¶]
"[COUNSEL FOR AKEL]: Your honor, we have asked as a prevailing party of some of these requests, we have asked for attorney's fees. [¶] . . . [¶] We asked for attorneys fees in the request concerning the kindergarten.
"THE COURT: That's not a prevailing party issue. It's a [section] 2030 or 271 and I don't find that either of those . . . both parties have good points to make. There is no prevailing party on the kindergarten issue.
"[COUNSEL FOR AKEL]: Under Family Court 2030
"THE COURT: The court awarded sufficient attorney fees on an interim basis. You can ask for more when you get the judgment, and you can file a declaration, but I have ordered [$]60,000 in [section] 2030 fees so far. That's sufficient for quite a few motions . . . ." The court's written order after hearing states Akel's "attorney fee request is denied."
DISCUSSION
Akel contends the court abused its discretion by denying her request for section 2030 attorney fees and costs. Section 2030 empowers a trial court to "award fees and costs between the parties [in a dissolution action] based on their relative circumstances in order to ensure parity of legal representation in the action." (In re Marriage of Falcone and Fyke (2012) 203 Cal.App.4th 964, 974, fn. omitted (Falcone).) "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." (§ 2030, subd. (a)(2).)
Section 2030 provides in relevant part: "In a proceeding for dissolution of marriage, . . . 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 . . . 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." (§ 2030, subd. (a)(1).) --------
Section 2032 lists factors the court must consider in determining whether to award attorney fees, including whether an award is "just and reasonable under the relative circumstances of the respective parties" (§ 2032, subd. (a)) and "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.]" (Falcone, supra, 203 Cal.App.4th at pp. 974-975; In re Marriage of Cryer (2011) 198 Cal.App.4th 1039, 1056 (Cryer) [section 2032 requires "analysis of the parties' relative circumstances"].) We review the denial of Akel's request for section 2030 attorney fees and costs for abuse of discretion. (In re Marriage of Rosen (2002) 105 Cal.App.4th 808, 829.)
Akel claims the court failed to "consider the statutory factors" and to "make findings on the disparity in access to funds and ability to pay." The court's failure to list the statutory factors on the record is not fatal. To be sure, the record "must reflect an actual exercise of discretion and a consideration of the statutory factors in the exercise of that discretion" but "no particular language is required[.]" (Alan S. v. Superior Court (2009) 172 Cal.App.4th 238, 254.) Here, the court had before it evidence regarding the parties' incomes, monthly expenses, assets, and savings, including evidence that Akel was receiving $4,000 per month from Clarke, and that she apparently had a community property interest in the parties' real property. (See § 4320; In re Marriage of Terry (2000) 80 Cal.App.4th 921, 933.) We presume the court considered this information. (Evid. Code, § 664; In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1526 [appellate court presumes trial court " 'recognize[s] those facts which properly may be considered in the judicial decisionmaking process' "].) The court impliedly concluded an additional award of section 2030 attorney fees was not "just and reasonable under the relative circumstances of the respective parties" in part because the court had recently awarded Akel $60,000 in attorney fees. (§ 2032, subd. (a).) The record supports the conclusion that the court made a needs-based analysis when ruling on Akel's request for attorney fees. (Cf. In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1314-1315 [court affirmatively, repeatedly, and explicitly refused to consider wife's need for the attorney fees and the husband's ability to pay].)
Akel's reliance on In re Marriage of Sharples (2014) 223 Cal.App.4th 160 — cited for the first time in her reply brief — does not alter our conclusion. In that case, the trial court denied wife's request for section 2030 attorney fees solely because she failed to submit form FL-319. (Sharples, at pp. 164, 165.) The appellate court reversed, concluding the denial of wife's request "was based on the court's mistaken understanding that form FL-319 was mandatory" and the court therefore erred by "not exercis[ing] its discretion in considering the merits" of wife's request. (Id. at p. 168.) Here, the court exercised its discretion, and reversal is not required merely because Akel does not like the way that discretion was exercised.
Based on the differences in income between the parties, the court could have ordered Clarke to pay Akel's fees and costs in bringing the April 2015 motion. But we cannot conclude the trial court, which was well acquainted with the parties and the history of the case, abused its discretion in denying Akel $3,042 in section 2030 attorney fees and costs, when the court had recently awarded her $60,000. (In re Marriage of Tharp, supra, 188 Cal.App.4th at p. 1313 ["family court has considerable latitude in fashioning or denying an attorney fees award"]; In re Marriage of Keech (1999) 75 Cal.App.4th 860, 866 [order on request for section 2030 attorney fees will be reversed on appeal " 'only if, considering all the evidence viewed most favorably in support of its order, no judge could reasonably make the order made' "].) Nor do we fault the court for suggesting Akel could seek additional section 2030 attorney fees in the future. " 'No single fees and costs order is an "all or nothing" proposition. Need-based awards may be augmented or modified as necessary during the entire pendency of the case, consistent with the parties' "relative circumstances" [§§ 2030, subd. (c), 2032, subd. (a) ].' [Citation.]" (Cryer, supra, 198 Cal.App.4th at p. 1056.)
DISPOSITION
The court's September 10, 2015 order is affirmed. Clarke is entitled to costs on appeal. (Cal. Rules of Court, rule 8.278.)
/s/_________
Jones, P. J. We concur: /s/_________
Needham, J. /s/_________
Bruiniers, J.