Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. VFLVS025703. Teresa M. Bennett, Judge.
Law Office of Kerrie Justice, Kerrie C. Justice; Law Office of Valerie Ross and Valerie Ross for Appellant.
Law Office of Stanley W. Hodge and Stanley W. Hodge for Respondent.
OPINION
MILLER, J.
William Condoluci (husband) filed for dissolution of his marriage to Ina Condoluci (wife). After a posttrial motion, husband was ordered to pay $750 in attorney fees to wife’s estate. Husband contends the trial court abused its discretion, as the record failed to demonstrate the proper statutory basis for such an award. We reverse.
FACTUAL AND PROCEDURAL HISTORY
In 2002, husband filed a petition for dissolution of his marriage to wife. Husband filed an income and expense declaration, and a schedule of assets and liabilities.
In 2005, husband substituted in a new attorney, Kerrie Justice, and filed an amended petition. An amended summons was issued and wife was served on June 22, 2005.
In July 2005, wife filed a response to the petition in propria persona. She later substituted in attorney Elizabeth Ritter, of the firm of Ritter and LeClere, as counsel of record.
The court granted judgment of dissolution of marriage on October 18, 2005, but reserved jurisdiction on all other issues. The judgment of dissolution was filed on November 4, 2005.
At some point during the pendency of the dissolution action, it appears that both parties became incompetent, and their daughter, Jessica Condoluci, was appointed conservator. The daughter as conservator was also represented by counsel, Kyle Woodridge. Somewhat later, wife died and Paula Fraijo was appointed administrator of wife’s estate. Attorney Edward LeClere became the attorney for wife’s estate.
At a hearing on property issues, wife moved for an order to sell some of the parties’ vacant rental property. On January 10, 2006, the court ordered the property sold and the proceeds to be “placed in Attorney Justice’s trust account.” The parties also agreed to use a particular real estate broker to list and sell two rental properties and some vacant lots. As to the rental properties, the parties were each to pay half of the mortgages pending the sale. In early 2006, the parties filed a stipulation and order regarding the sale of their timeshare.
Wife filed an order to show cause (OSC) re spousal support, which the court denied without prejudice. The parties’ counsel attended mandatory settlement conferences. Apparently, some or all of the parties’ properties were sold, as wife filed an OSC to release funds from attorney Justice’s trust account. The hearing on the OSC to release funds was continued, and on the continued hearing date, July 18, 2006, the court was informed that wife had died. After further continuances and additional settlement negotiations, the parties’ counsel apparently stipulated to the resolution of all issues, and a judgment on reserved issues was entered on November 14, 2006. At the time of the judgment, attorney LeClere signed as attorney for wife’s estate. There was supposed to be a full accounting at the time of the judgment, and all funds held by attorney Justice in trust were supposedly disbursed. Attorney Justice provided an accounting showing that no funds remained in trust for wife. On December 13, 2006, a month after the judgment on reserved issues was filed, wife’s attorney withdrew as attorney of record, leaving wife represented in propria persona.
Evidently, attorney Justice had held proceeds of approximately $269,000 in trust, which was then distributed by the judgment. However, as a result of some delays between the date of the agreement and the actual disbursement, a small amount of accrued interest, some $431, was deposited to the trust account after the judgment had been entered.
Husband’s conservator, Jessica Condoluci, apparently telephoned Paula Fraijo, as the representative of wife’s estate, to resolve the issue of the leftover trust funds, but Fraijo did not return her telephone calls. Therefore, on April 7, 2008, attorney Justice filed a motion in the family law court, seeking an order to disburse the $431 to husband. Attorney Justice averred that the funds in the trust account were held for the benefit of both husband and wife, that the funds in question were deposited before attorneys LeClere and Ritter withdrew as counsel, that conservator Jessica Condoluci was currently represented by the law firm of Caldwell, Kennedy and Porter, with attorney Woodridge as a third party in the probate matter. Attorney Justice further averred that she was unable to get in contact with Fraijo, the administrator of wife’s estate, causing the conservator to incur fees to file the motion to disburse the remaining funds. Accordingly, attorney Justice requested that the remaining funds be disbursed to Jessica Condoluci on behalf of husband. The motion to disburse funds was served initially only on attorney Woodridge and the Caldwell, Kennedy and Porter firm.
Attorney LeClere responded, on behalf of administrator Fraijo, on May 1, 2008. Fraijo filed a declaration averring that attorney Justice’s motion to disburse funds had come to her attention, and that it appeared that funds remained in trust for the parties, despite the final accounting and division of proceeds at the time of judgment. Fraijo had believed the accounting provided at the time, which showed that no funds remained. Wife’s estate had an open probate remaining, and attorney LeClere had remained counsel of record in the probate matter. Fraijo averred that the allegations that attorney Justice had been unable to contact her were untrue; Fraijo had resided at the same address for 10 years and had received numerous notices from attorney Justice in the past. Fraijo requested that the court order an accounting of the division of all funds held by attorney Justice in the dissolution matter.
Attorney LeClere also filed a declaration, averring that he had never withdrawn as attorney of record for wife’s estate in the probate matter, that he had signed the dissolution judgment on behalf of wife’s estate, that no notice of hearing on the disbursement of funds was provided to him, and that the disbursement of additional funds to wife’s estate would cause the estate to incur expenses both to attend the disbursement hearing in the family law matter and to revise the accounting of wife’s estate in the probate matter. Therefore, attorney LeClere requested an award of attorney fees to compensate for the costs required in responding to the motion to disburse funds.
The court inquired how the funds should be distributed; husband’s motion to disburse initially requested that the funds be given solely to his conservator, Jessica Condoluci, but attorney Justice stated in court that she “[did not] care if we give her the [money] that still remains, or whether she wants us to take it. I just want it out of my trust account and my client [i.e., Jessica Condoluci] wants her case closed. Simple as that. If that’s what they’re asking for, the money, she’s agreed that they can have it.”
The court ordered all the funds remaining in attorney Justice’s trust account released immediately to Fraijo as the representative of wife’s estate. In addition, the court ordered husband to pay attorney fees of $750, payable at $50 per month.
Husband filed an appeal from the postjudgment order for attorney fees.
DISCUSSION
A. Standard of Review
An order for attorney fees in a dissolution case is reviewed for abuse of discretion. (In re Marriage of Sullivan (1984) 37 Cal.3d 762, 768-769.)
B. The Trial Court Abused Its Discretion in Awarding Attorney Fees Without Demonstrating a Proper Statutory Basis for the Award
Husband argues that the trial court abused its discretion in awarding attorney fees as a sanction in a marital dissolution case without following appropriate legal principles applicable to sanction awards. It is unclear whether the court awarded the attorney fees as a sanction or under another statutory provision for attorney fees in a dissolution case.
Generally, attorney fees may not be awarded unless provided for by statute, or by contract. (Code Civ. Proc., § 1021.) In marital dissolution actions, attorney fees are provided for by statute, and may be awarded either based on the need of the party, or as a sanction.
Family Code section 2030, the need-based provision, states that the family 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.” (Fam. Code, § 2030, subd. (a).) Such an award of attorney fees may be made before or after the beginning of the dissolution action. (Fam. Code, § 2030, subd. (b).) For services rendered or costs incurred after judgment, “the court may award the attorney’s fees and costs reasonably necessary to maintain or defend any subsequent proceeding, and may augment or modify an award so made, including after an appeal has been concluded.” (Fam. Code, § 2030, subd. (c).) The amount ordered shall be limited to that reasonably necessary to maintain or defend the action. (Fam. Code, § 2030, subd. (d).)
Family Code section 2032 permits the court to make an award for attorney fees and costs “where the making of the award, and the amount of the award, are just and reasonable under the relative circumstances of the respective parties.” (Fam. Code, § 2032, subd. (a).) In determining what is just and reasonable, the court must take into account the need for the award to enable each party to present that party’s case adequately. That a party requesting fees could pay his or her own attorney fees is not necessarily a bar to an award: “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.” (Fam. Code, § 2032, subd. (b).) The court may order attorney fees paid from either community or separate property, from either income or principal. (Fam. Code, § 2032, subd. (c).)
Family Code section 270 requires that, whenever a court makes an award of attorney fees under the Family Code, the court must first determine a party’s likely ability to pay.
Family Code section 271 governs an award of attorney fees in the nature of a sanction: “(a) Notwithstanding any other provision of this code, the court may base an award of attorney’s fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. An award of attorney’s fees and costs pursuant to this section is in the nature of a sanction. In making an award pursuant to this section, the court shall take into consideration all evidence concerning the parties’ incomes, assets, and liabilities. The court shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed. In order to obtain an award under this section, the party requesting an award of attorney’s fees and costs is not required to demonstrate any financial need for the award.
“(b) An award of attorney’s fees and costs as a sanction pursuant to this section shall be imposed only after notice to the party against whom the sanction is proposed to be imposed and opportunity for that party to be heard.
“(c) An award of attorney’s fees and costs as a sanction pursuant to this section is payable only from the property or income of the party against whom the sanction is imposed, except that the award may be against the sanctioned party’s share of the community property.”
Husband complains that the trial court below failed to follow the procedures outlined in Family Code section 271 for the imposition of attorney fees as a sanction. For example, the court did not require notice to husband that an attorney fee sanction was being considered. In addition, he argues that the court failed to exercise its discretion at all. No evidence was taken concerning the relative financial positions of the parties, and no one ever cited any authority, statutory or otherwise, for the request for attorney fees.
Husband is correct that neither wife’s attorney, the requesting party, nor the family law court specified the particular statutory basis for the attorney fees request. He is further correct that the court received no evidence concerning the relative financial positions of the parties. What can be gleaned from the record is that wife is deceased, and that she had been under conservatorship before her death. The financial position of wife’s estate is unknown, except counsel’s representation that the estate will incur additional costs to amend the probate accountings. Husband is also under conservatorship and treatment for Alzheimer’s disease, and presumably has ongoing expenses for his care. The proceeds of the sale of the community property real estate realized approximately $269,000. We are not provided with the judgment to show how this money was divided between the parties in 2006, nor what the parties’ respective financial circumstances were at the time of the present motion in 2008.
Some of the circumstances surrounding wife’s counsel’s request for attorney fees are suggestive that the fees were requested as a sanction: Husband’s counsel’s original motion to disburse the trust moneys requested that the entire sum of $431 be given to husband (i.e., to the conservator daughter), ostensibly because the personal representative of wife’s estate could not be found. But the notice of motion was not even attempted to be served upon the personal representative, nor on the wife’s probate counsel (who had signed the family law judgment for wife, as her probate attorney), even though their addresses were, or should have been, known to husband’s counsel at all times. At the hearing, wife’s counsel complained that the sale proceeds funds had not been kept in a California State Bar-approved Interest on Legal Trust Accounts (IOLTA) attorney trust account, so that perhaps husband’s attorney could be sanctioned by the California State Bar. Wife’s attorney asked for $1,250 in attorney fees, not limited to the defense of the husband’s motion to disburse funds, but also to compensate wife’s estate for the attorney fees that would be incurred in the probate action. All these points certainly bear the implication that attorney fees were requested, either in whole or in part, because husband’s attorney’s actions in this matter had frustrated cooperation and settlement, and needlessly increased the cost of litigation—i.e., for sanctionable reasons.
We have examined the motion pleadings, the reporter’s transcript, and the court’s order. Husband’s appellate counsel is correct that neither the parties nor the trial court ever identified any statutory or contractual basis for the attorney fees award. Some of the rhetoric surrounding the motion is suggestive that the attorney fees were awarded as a sanction, but even if the award purported to be based on need, the predicate findings of ability to pay and relative financial circumstances of the parties were not made. Husband’s counsel correctly observes that a court’s discretion may be exercised only under appropriate legal standards, and that none of the standards for requesting or making an award of attorney fees were complied with here. Accordingly, we are compelled to conclude that the trial court did abuse its discretion in making an attorney fees award not tethered to any statutory provision nor supported by appropriate predicate findings. We therefore reverse the award of $750 in attorney fees. We do so, however, without prejudice to the trial court’s making a proper award for fees. We remand the matter for further proceedings, in which, under a properly noticed motion, the trial court may establish a proper statutory basis for the award (need or sanctions), together with findings on the appropriate issues (financial circumstances of the parties, the paying party’s ability to pay, “just and reasonable” amount of the award, sanctionable conduct, if any, etc.).
DISPOSITION
For the reasons stated, the order that husband pay $750 in attorney fees is reversed. The reversal is without prejudice to wife’s attorney making a properly noticed motion for attorney fees, specifying the basis for the request. If such a motion is filed, the trial court is directed to conduct further proceedings, determining the statutory authority for the award, and make any necessary findings.
In the interests of justice, each party shall bear its own fees and costs on appeal.
We concur: GAUT, Acting P. J., KING, J.