Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. FL 995107
Sepulveda, J.
In a marital dissolution action, the court appointed an attorney to represent the minor child of divorcing parents engaged in a custody dispute. (Fam. Code, § 3150.) The court ordered each parent to pay one-half of the attorney’s legal fees. (Fam. Code, § 3153, subd. (a).) The mother filed a motion to vacate the order requiring her to pay minor’s attorney. (Code Civ. Proc., § 473, subd. (b); Fam. Code, § 3691, subds. (a), (b).) The court denied the motion to vacate and this appeal followed.
On appeal, the mother contends that the original order appointing minor’s attorney was not truly an appointment of counsel order but an order awarding additional child support for special needs of the child and, as a child support order, was defective because the court failed to make findings about ability to pay and other matters that are required when departing from baseline child support. (Fam. Code, §§ 3150, 3153, 4056, subd. (a), 4057, subd. (b)(5)(C), 4062, subd. (b)(1).) The contention is meritless. The order was for the appointment of counsel; it was not an order for additional child support. Moreover, the mother’s ability to pay counsel fees was fully considered. We affirm the order.
I. FACTS
Respondent James Heierle (Father) and appellant Yupa Assawasuksant (Mother) were married in 1993. They are the parents of a son, Jonathan, born in 1997. Father filed a petition for dissolution of marriage in October 1999, and a final judgment of dissolution was entered in December 2004. Mother received $680,000 as her share of a community estate valued at approximately $1,360,000. In 2005, Mother moved to set aside the judgment for alleged fraud, perjury, and mistake in the division of community property. (Fam. Code, § 2122, subds. (a), (b), (e).) Mother claimed that Father had understated the value of community assets. The motion was denied, and this court affirmed the order denying relief in 2006. (In re Marriage of Heierle and Assawasuksant (Oct. 30, 2006, A111501) [nonpub. opn.].)
Meanwhile, the parties continued to dispute custody of their son. In November 2001, the court issued an order appointing counsel to represent the child pursuant to Family Code section 3150. Initially, the County of Marin (County) assumed responsibility for paying the minor’s attorney. In February 2005, the court amended its earlier order to make the parents, not the County, responsible for the fees. (Fam. Code, § 3153, subd. (a).)
Mother refused to pay, and the minor’s attorney filed a motion to recover one-half of his legal fees. Father had paid half the fees. In December 2006, the court found that Mother had the ability to pay one-half of the fees generated by minor’s attorney, and ordered her to do so. The court directed Mother to pay $14,083 for fees billed through June 2006. When Mother still refused to pay, minor’s counsel moved in January 2007 for payment of Mother’s fee obligation from a trust fund Mother had been required to establish in connection with the dissolution proceeding. The court granted the motion. A day before the court heard and granted that motion in March 2007, Mother filed a motion to vacate the December 2006 order directing her to pay fees. (Code Civ. Proc., § 473, subd. (b); Fam. Code, § 3691, subds. (a), (b).) In June 2007, the court denied the motion to vacate. This appeal followed.
Two additional appeals are pending in this court: one challenges a May 2008 order concerning minor counsel’s fees (A121688), and the other challenges a child custody order (A120227).
II. DISCUSSION
Mother’s motion to vacate the December 2006 fee order, and this appeal from the denial of that motion, are based on a fundamental misunderstanding of the underlying order appointing minor’s counsel. Mother argues that the original order appointing minor’s attorney was not truly an appointment of counsel order but an order awarding additional child support for special needs of the child and, as a child support order, was defective because the court failed to make findings about ability to pay and other matters that are required when departing from baseline child support. (Fam. Code, §§ 3150, 3153, 4056, subd. (a), 4057, subd. (b)(5)(C), 4062, subd. (b)(1).) Mother is mistaken. The order was for the appointment of counsel; it was not an order for additional child support. Moreover, the parents’ ability to pay counsel fees was fully considered.
A. Order appointing minor’s counsel
The order appointing counsel was filed on November 16, 2001. It is captioned: “Order for appointment of counsel to represent minor pursuant to California Family Code section 3150 et seq.” (Capitalization altered.) The order opens with the statement: “This Court has determined that the custody matter currently pending before it is one of special and extraordinary circumstances necessitating the appointment of private counsel to represent the best interests of the minor child of the parties. This appointment is made pursuant to California Family Code sections 3150, et seq., which set forth the specific rights, duties and authority of counsel appointed in his role of representat[ive] of said minor.”
The quoted caption and opening statement make it plain that the order is an order appointing counsel under the authority of Family Code section 3150 et seq. Mother’s claim that the order is an order for add-on child support is founded on a peculiar paragraph on page three of the order. On page three, paragraph six states: “The appointment of counsel for the child is considered a special circumstance pursuant to Family Code sections 4057(b)(5) and 4062(b)(1) [concerning add-on child support]. The cost of the attorney’s fees for the child is considered a child support obligation of the parents with the payments as set forth below to be made directly to the attorney named herein.” But the paragraph set forth below paragraph six provides that fee payments will be made by the County.
The purpose of paragraph six is unclear. In wrestling with its meaning, the trial court suggested that “[t]he language in paragraph 6 appears to underscore the point that the primary responsibility to pay minor’s counsel is not the county’s but the parents [FC § 3153(a)], and, perhaps, to thwart a parent who seeks to avoid his/her responsibility to minor’s counsel by filing for bankruptcy.” The trial court’s interpretation appears correct. Federal courts have held that debts for professional fees from a child custody proceeding are in the nature of child support for purposes of bankruptcy law, and denied a debtor parent’s effort to discharge the debt. (E.g., In re Chang (9th Cir. 1998) 163 F.3d 1138, 1140-1142.) While counsel’s fees may be in the nature of child support under federal bankruptcy law, this does not mean that the fees are actually child support under state law. Paragraph six, while inartfully written, acknowledges this distinction by noting that the fees are considered a child support obligation rather than by stating that the fees are a child support obligation.
In any event, the trial court was right to focus on the purpose and language of the order as a whole in determining whether it is an order appointing minor’s counsel governed by Family Code section 3153, or an order for add-on child support governed by Family Code section 4056 and falling short of that latter statute’s requirements in departing from baseline child support.
Reading the order as a whole, we agree with the trial court’s conclusion that the order is one appointing counsel for a minor. As we noted above, the caption and opening paragraph make the nature of the order clear. Aside from paragraph six, the rest of the order is also consistent with an order appointing counsel. And paragraph six is only partially inconsistent with an order appointing counsel. Paragraph six refers to the “appointment of counsel for the child” and creates ambiguity only in its statement that “[t]he cost of the attorney’s fees for the child is considered a child support obligation of the parents.” Paragraph six then effectively retracts that obligation by stating that payments shall be made as set forth below, and the paragraph set forth below provides that the payments shall be made by the County. It is not reasonable to construe the order as one establishing add-on child support when the order provides that the County, not the parents, must pay the fees. While the ambiguous language of paragraph six is troubling, we cannot read that paragraph in isolation nor give it precedence over the other provisions of the order which are plain in their purpose. Mother is therefore incorrect in asserting that the order is one awarding additional child support and, as a child support order, is defective because the court failed to make findings about ability to pay and other matters that are required when departing from baseline child support.
B. Parents’ ability to pay
Mother is also incorrect in suggesting that only a child support order, and not an appointment of counsel order, necessitates consideration of the parents’ ability to pay. Mother’s fundamental complaint is that the equal allocation of fees between her and Father is unfair because he has greater financial resources. Mother maintains that her lesser ability to pay would have to be considered in determining her responsibility for child support, yet can be (and was) ignored in ordering fees for appointed counsel. But a parent’s obligation to pay the fees of an attorney appointed to represent his or her child is, like a child support obligation, subject to the parent’s ability to pay. (Fam. Code, § 3153.) The statute expressly provides that the amount paid to minor’s counsel “shall be paid by the parties in the proportions the court deems just.” (Fam. Code, § 3153, subd. (a).) As with child support, the court considers the financial resources of the parties in setting the amount that a parent pays. (Cal. Rules of Court, rule 5.241(b)(1).)
It is true that no express calculation of the parents’ ability to pay appears in the February 2005 court order which first directed the parents to pay fees. The order simply states: “Future fees for minor’s counsel to be billed to parents at counsel’s customary rate. The court will no longer pay for counsel’s services.” But there is also no indication in the record that Mother objected to the 2005 order, appealed it, or sought to modify it. (See Fam. Code, § 3153, subd. (b) [court shall determine ability to pay upon “its own motion or that of a party”]).) Minor’s counsel interpreted the order, reasonably, to provide for equal payment by each parent and billed the parents accordingly. It was not until minor’s counsel sought to collect his fees in 2006 that Mother contested equal apportionment of the fee obligation (along with making a host of other complaints about minor’s counsel). The propriety of this belated challenge is questionable. Nevertheless, once the issue was raised, the trial court addressed it.
The court’s fee order of December 2006 expressly acknowledged the legal principle that ability to pay should be considered in determining responsibility for the fees of minor’s counsel, and expressly considered Mother’s and Father’s finances in ordering Mother to pay one-half of counsel’s fees. In its fee order, the court noted that, in “determining payment for appointed counsel for children in family court[,]” the “court should determine ability to pay based on the party’s income and assets reasonably available.” The court concluded that minor’s counsel was “entitled to an order that the obligation for the payment of his legal fees and expenses shall be paid by both parents.” The court further concluded that “both parents have the present financial ability to pay one-half of the fees generated by Minor’s Counsel as billed through June 26, 2006.”
In a pending appeal of a subsequent fee order (A121688), Mother claims that the December 2006 order considered the parties’ ability to pay fees only through June 26, 2006, and did not establish any obligation to pay future fees. The notion that a parent’s ability to pay must be recalculated every time minor’s counsel submits a fee bill is dubious. The law contemplates a continuing fee obligation subject to a motion to redetermine ability to pay upon a demonstration of changed circumstances. (Fam. Code, § 215; Cal. Rules of Court, rule 5.241(b)(2).) For purposes of this appeal, however, we need not resolve the exact scope of the December 2006 order as the current appeal concerns only those fees incurred through June 2006, for which the court plainly made a determination that Mother had the ability to pay. If Mother disputed that determination, her remedy lay in an appeal. The course of action Mother chose—disregarding the December 2006 order directing payment of fees until a trust fund was about to be levied and then moving to vacate the order—was improper. Her motion to vacate was rightly denied.
III. DISPOSITION
The June 28, 2007 order denying the motion to vacate the order of December 12, 2006 is affirmed.
We concur: Ruvolo, P. J. Rivera, J.