Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County, Frederick C. Shaller, Judge. Los Angeles County Super. Ct. No. D215047
Levy, Small & Lallas, Tom Lallas and Mark D. Hurwitz for Appellants Jeff Bohbot and Mercedes Bohbot.
Novian & Novian, Farhad Novian, David B. Felsenthal; Trope and Trope and Steven Knowles for Appellant Monique Foerster.
KITCHING, J.
INTRODUCTION
In this family law matter, defendants and appellants Jeff Bohbot and his mother, Mercedes Bohbot (collectively appellants), appeal an order awarding them attorney fees as too low of an award. In the trial court, appellants requested approximately $223,000 for fees incurred by the law firm of Levy, Small and Lallas (LSL) for past services, as well as $125,000 for future services. Appellants also requested approximately $203,000 for fees incurred by the law firm of Jaffe and Clements (JAC) for past services, as well as $250,000 for future services.
For convenience, when referred to separately, the parties shall be referred to by their first names.
The trial court awarded them $110,000 for fees incurred by the law firm of LSL for past services, and $150,000 for fees incurred by the law firm of JAC for past services. The trial court denied appellants’ request for attorney fees for future services.
Appellants contend that the trial court abused its discretion and should have awarded them approximately $223,000 for fees incurred by LSL for past services. Appellants also contend that the trial court abused its discretion by denying their motion for attorney fees for $125,000 for the anticipated future services of LSL. Appellants do not contend that the trial court abused its discretion with respect to the award of fees for the services of JAC.
Cross-Appellant, Monique Foerster, the former spouse of Jeff, also appeals the award of attorney fees to appellants’ attorneys. Monique asserts that the trial court abused its discretion by awarding either of appellants’ law firms any amount for attorney fees.
Finding no abuse of discretion, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
This case has been the subject of two prior appeals: In re Marriage of Bohbot (Nov. 20, 2001, B141631) [nonpub. opn.] (Bohbot I) and In re Marriage of Bohbot (Jan. 26, 2005, B171676) [nonpub. opn.] (Bohbot II). A portion of the facts recited below are drawn from Bohbot I.
1. Judgment of Dissolution
Monique and Jeff married in 1976. During the marriage Jeff was involved in a business called Jeff Hamilton, Inc., and designed a clothing line under the label “Jeff Hamilton.” (Bohbot I at p. 1) In 1987, Jeff was involved with the creation and incorporation of JH Design Group, Inc. (JH Design). JH Design designed and marketed clothing under the Jeff Hamilton label. (Bohbot I at p. 1)
In 1987, Jeff and Monique separated. The parties then entered into a marital property settlement agreement. In 1990, the trial court entered a stipulated judgment of dissolution based upon the settlement agreement.
2. Motion to Set Aside the Division of Property
In 1999, Monique filed a motion in the trial court to set aside the property division in the stipulated judgment and settlement agreement. There, Monique asserted that Jeff fraudulently concealed the existence of community property assets related to JH Design, including trademarks, and that the 1990 judgment did not adjudicate the community interest in those assets. The trial court denied Monique’s motion to set aside. Monique appealed.
In Bohbot I, this court found that Jeff engaged in extrinsic fraud with respect to the assets of JH Design. We found that the martial property settlement agreement had to be set aside. (Bohbot I at p. 1.) We ordered the trial court to redetermine the entire property division. (Bohbot I at p. 14.)
In Bohbot II, this court affirmed in part and reversed in part an award of attorney fees to Monique pursuant to Family Code section 2030. We affirmed awards of $200,000 and $25,000 to Monique’s attorneys, as well as an award of $51,069 to Monique for college and living expenses of the parties’ children.
3. Proceedings Following Remand After Bohbot I
On September 10, 2002, Jeff and Mercedes entered into a transaction in which they sold the assets of Jeff Hamilton Industries to Action Performance Company.
On September 24, 2002, Monique filed a motion to freeze the proceeds from the sale of Jeff Hamilton Industries. On December 4, 2002, the trial court granted a preliminary injunction to freeze the proceeds in a trust account, which the parties refer to as “the blocked funds.”
On January 17, 2003, through eminent domain proceedings, the Los Angeles Unified School District obtained title to a building allegedly owned by Mercedes. On March 14, 2003, the trial court ordered Mercedes to deposit the funds received from the eminent domain proceeding into the blocked funds.
Jeff presented evidence that as of February 2005, the balance of the blocked funds exceeded $1,384,000.
4. Jeff and Mercedes File Motion for Attorney Fees
On February 14, 2005, Jeff and Mercedes filed a motion for attorney fees pursuant to Family Code section 2030. There, Jeff and Mercedes sought leave to obtain amounts for attorney fees from the blocked funds. They submitted redacted copies of billing statements from their attorneys.
At the time they filed the motion, appellants requested approximately $64,000 in attorney fees for the LSL law firm for past services, plus an additional $125,000 for future services.
They also requested approximately $102,000 in attorney fees for the JAC law firm for past services, and an additional $250,000 for future services.
By the time of the June 27, 2005 hearing, they requested $223,080.18 in attorney fees for the LSL law firm for services through June 27, 2005, plus an additional $125,000 for future services, for a total of $348,080.18.
They also requested $203,983.49 in attorney fees for the JAC law firm for past services, plus an additional $250,000 for future services for a total of $453,983.49.
In support of the motion for attorney fees, Jeff and Mercedes submitted declarations that they could not pay attorney fees. Jeff declared that a company called Jeff Hamilton Collection, Inc. (JHC) terminated his employment, JHC ceased doing business with Jeff Hamilton Industries, and Jeff and Mercedes had no income apart from the foregoing.
Jeff also declared that since November 2001, he had spent almost $700,000 in legal fees and costs. In addition, Mercedes declared that since July 2002, she had spent over $85,000 in litigation fees.
Monique filed an opposition to the motion for fees. Monique asserted that Jeff and Mercedes had the resources to pay their attorneys and did not need funds from the blocked funds, which were intended to protect Monique’s interests. Monique also asserted that Jeff and Mercedes intended to ensure that Monique receive nothing. Monique presented evidence concerning the expenses of Jeff, including the following: a monthly mortgage payment of $7,500; a monthly lease payment for business premises of $7,200;; a monthly lease payment of $1,100 for one of Jeff’s automobiles; and a monthly lease payment of $1,800 for Jeff’s other automobile; and a number of monthly American Express bills in excess of approximately $10,000.
Monique also presented evidence that Jeff purchased Los Angeles Lakers tickets in March 2004 for a cost of approximately $40,000. Jeff testified that he did not pay for the ticket expenses, but that Jeff Hamilton Industries, which the parties refer to as “JDI,” paid for the tickets as a business expense. Jeff also responded that he paid his foregoing expenses with loans from private parties in the approximate amount of $650,000.
In response, Monique presented testimony from Jeff as follows: “The way we handle our monies – it’s my mother’s money, but we are all in one. So it’s her money, and whatever we need to pay, we’ll take it from wherever we have it. If we have the money at JDI, we’ll take if from JDI. If I have it in my account, I’ll take it from my account. And we’ll pay the money from wherever it is. We are – we don’t have any problems with money with my mother and I in regards to knowing where it’s coming from.”
Monique also presented evidence that Mercedes collected approximately $3,500 in rent for a leased residential property.
Monique asserted that given the foregoing alleged expenses, Jeff and Mercedes must have sufficient income to pay their attorney fees and that they had not demonstrated a basis for the court to award fees from the blocked funds.
5. The Trial Court Grants in Part Jeff and Mercedes’ Motion for Attorney Fees
On June 29, 2005, the trial court issued a written ruling. The court awarded Jeff and Mercedes attorney fees in the following amounts: $150,000 to JAC, and $110,000 to LSL. The trial court also awarded Monique $150,000 for attorney fees. The court ordered all of these amounts to be paid from the blocked funds. During oral argument, the court acknowledged that the blocked funds had not been determined to be Monique’s property.
In its ruling the court explained: “These amounts are calculated on the basis of the court’s evaluation of the needs and ability to pay of the parties relative to attorney’s fees and are ordered on the basis of the request by both parties to have these attorney’s fees paid from the [blocked funds]. In this regard the court finds that [Monique] and [Jeff] both have a need for attorney’s fees but that [Monique’s] need is relatively greater. Both parties have substantial credibility problems relative to their claim of lack of income or ability to pay attorney’s fees and costs. However, the admissible evidence before the court documents at this time that [Monique] has no source of income and that [Jeff] and Claimant Mercedes Bohbot have sources of income including substantial assets that permit them to fund an expensive life style and that would permit them to pay a significant portion of their fees. [¶] The court has taken into consideration the parties estimates as to the amounts that they will need to expend in preparation of the matter for trial and the complexity of the case. Absent a showing of unusual circumstances, the court will not consider any further request for pre-trial attorneys fees and costs.”
Jeff timely filed a notice of appeal from the order. Monique timely filed a notice of cross-appeal.
CONTENTIONS
Jeff and Mercedes contend the trial court abused its discretion by denying their request for approximately $223,000 for fees incurred by LSL law firm for past services, as well as $125,000 for future services.
Monique contends the trial court abused its discretion by awarding Jeff and Mercedes’ attorneys any amount for past services.
STANDARD OF REVIEW
We review an award of attorney fees for abuse of discretion. (In re Marrriage of Rosen (2002) 105 Cal.App.4th 808, 829 (Rosen).). To show an abuse of discretion, the parties must show that no judge could have reasonably made the order. (Id. at p. 829.)
DISCUSSION
We find that the trial court did not abuse its discretion in making the attorney fee awards to the attorneys for appellants. We therefore affirm the order.
In Rosen, the court explained: “Family Code section 2030 permits the trial court to order payment of attorney fees and costs as between the parties based upon their ‘ability to pay’ and their ‘respective incomes and needs’ in order to ‘ensure that each party has access to legal representation to preserve all of the party’s rights.’ (Fam. Code, § 2030, subd. (a).) ‘The purpose of such an award is to provide one of the parties, if necessary, with an amount adequate to properly litigate the controversy.’ [Citation.] The trial court may award attorney fees under section 2030 ‘where the making of the award, and the amount of the award, are just and reasonable under relative circumstances of the respective parties.’ (Fam. Code, § 2032, subd. (a).) [¶] ‘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 [Family Code] Section 4320.’ (Fam. Code, § 2032, subd. (b).) The parties’ circumstances described in section 4320 ‘ “include assets, debts and earning ability of both parties, ability to pay, duration of the marriage, and the age and health of the parties.” ’ [Citation.] In assessing one party’s need and the other’s ability to pay, the court may consider evidence of the parties’ current incomes, assets, and earning abilities. (Ibid.) (Rosen, supra, 105 Cal.App.4th at p. 829.)
Appellants Jeff and Mercedes have not shown that the trial court abused its discretion by awarding an amount less than the amount sought for the past and future services of the LSL law firm. The record and the reporter’s transcript show that the trial court considered in detail the income, assets and earning abilities of Jeff and Mercedes. Notably, the trial court found that appellants were not credible with respect to their claim of lack of income or ability to pay attorney fees and costs.
The trial court considered the fact that Jeff reported that he had no present income based upon this termination of employment. The trial court balanced this assertion of no income against the facts concerning the expenses of Jeff, which showed substantial monthly expenses for a mortgage, a leased business premises, and two leased automobiles. Jeff presented evidence that he obtained substantial loans from private parties to fund his monthly expenses.
The trial court’s written statement of decision shows that it found that Jeff and Mercedes demonstrated some need for an award of fees, but that they had sufficient assets to permit them to pay a portion of the fees. On this record, given the credibility finding of the trial court concerning Jeff’s lack of income and his monthly expenses, we cannot say that the trial court abused its discretion by awarding less than appellants requested for attorney fees.
Jeff and Mercedes make an additional argument as to why the trial court abused its discretion by not awarding more in attorney fees. They assert that the money in the blocked funds account is their money, and not the property of Monique. They assert in their reply brief that the trial court determined in a March 17, 2007 statement of decision that all but approximately $225,000 of the blocked funds belongs to them. This fact, if true, does not show an abuse of discretion with respect to the attorney fee awards at issue. There is no final judgment as to which party has the right to the blocked funds. Until such time, this court cannot conclude one way or another which party has the right to the blocked funds. For this reason, we also conclude that the trial court did not violate appellants’ constitutional right to due process with respect to the attorney fees awarded.
Monique has not shown an abuse of discretion with respect to the two awards of attorney fees to appellants’ law firms. Jeff presented evidence that he had no current income, but relied solely upon substantial loans to fund his monthly expenses. Other than presenting evidence as to Jeff and Mercedes’ expenses, Monique did not present evidence to contradict Jeff’s assertion that he was terminated from employment and had no present income. Thus, Jeff and Mercedes made a showing of a need for funds to ensure that he would have access to legal representation.
In addition, Monique asserts that Jeff and Mercedes had the means in the past to pay substantial attorney fees. Monique suggests that based upon this fact, Jeff and Mercedes must have the ability to continue to pay attorney fees. We reject this assertion. Monique did not show that Jeff had any current income. With respect to Mercedes, Monique showed that Mercedes received $3,500 a month for a rental property, but made no showing as to the costs of owing the property, including a mortgage or taxes.
Thus, on this record, we cannot say that the trial court abused its discretion by awarding Jeff and Mercedes amounts for attorney fees from the blocked funds. Appellants made a showing of a need for funds to ensure legal representation. Moreover, Monique has not shown that the blocked funds are her separate property.
DISPOSITION
The order is affirmed. Each party is to bear its own costs on appeal.
We concur: CROSKEY, Acting P. J., ALDRICH, J.