Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. FL020718
NEEDHAM, J.
Nancy Dow Moody (wife) appeals from a pendente lite order requiring her to pay attorney fees and costs incurred by Peter Moody (husband) during the appeal of a prior order in this marital dissolution action. She contends the pendente lite order, which was issued under Family Code section 2030 based on husband’s financial need, is inconsistent with this court’s ultimate disposition of the appeal for which the fees and costs were awarded. Wife also argues that the award was an abuse of discretion, that the court placed unreasonable restrictions on her ability to present evidence of husband’s financial situation, and that section 2030 is unconstitutional. We affirm.
Further statutory references are to the Family Code unless otherwise indicated.
FACTS AND PROCEDURAL HISTORY
This case is before us for the fourth time.
Husband and wife were married on September 11, 1993 and separated on November 3, 2001. On June 22, 2007, the couple appeared in court and recited the terms of a settlement they had reached in their dissolution case, which they agreed would be judicially enforceable under Code of Civil Procedure section 664.6. After the parties proved unable to agree on the contents of a written judgment memorializing their settlement, the court granted husband’s motion for entry of judgment and ordered that wife pay husband $10,000 in attorney fees and costs under sections 271 (allowing fees as sanctions) and 2030 (allowing fees based on financial need). Wife appealed the award of fees and costs to husband, and this court affirmed in an opinion issued March 11, 2009. (In re Marriage of Moody (A121691) nonpub. opn.) While that first appeal was pending, husband obtained an order requiring wife to pay him $15,000 in pendente lite attorney fees and costs under section 2030 based on his financial need. Wife appealed from that order as well, and we affirmed in an opinion issued June 23, 2009. (In re Marriage of Moody (A123034) nonpub. opn.)
The 2007 settlement agreement had provided for an evidentiary hearing, if necessary, to resolve issues regarding husband’s ownership of real property in Massachusetts. On wife’s motion, the court held a hearing, resolved the disputed issues in husband’s favor, and ordered wife to pay husband a total of $93,285.08 in attorney fees and costs based on a prevailing party clause in the settlement agreement. Wife filed her third appeal, challenging the trial court’s resolution of the property ownership issues and the attorney fee award. In an opinion filed June 24, 2010, we affirmed the court’s ruling on the property ownership issues, as well as husband’s entitlement to fees as a prevailing party, but reversed the fee award because the record was insufficient to establish its reasonableness. (In re Marriage of Moody (A124962) nonpub. opn.)
While that third appeal was pending, husband filed an order to show cause seeking $50,000 in fees and costs so that he could defend that appeal. In his supporting declaration, he stated that wife had appealed from a judgment that resolved certain property-related issues in his favor and awarded him over $94,000 in prevailing party attorney fees and costs. He described his financial resources as extremely limited: “I sell flooring products for a living. Last year, I earned approximately $38,000... I have refinanced my home a number of times, and have withdrawn the maximum amount of equity I can withdraw from it. I am no longer [able] to access this source for litigation resources. I have used all of my savings. I have had to borrow money from friends and charge attorney’s fees and costs on credit cards to continue defending myself against [wife’s] motions and appeals.” The declaration also stated that husband had spent over $284,000 in attorney’s fees and costs and still owed approximately $63,000 “as a result of [wife’s] frivolous conduct in connection with our dissolution matter.”
Husband’s income and expense declaration stated that his average monthly income was $3,300; that he received $906 each month in Social Security benefits; that his monthly expenses were $13,738 (including a $2,917 mortgage payment, $1,200 in property taxes, and payments on debts totaling $4,950); that his liquid assets were worth about $13,000 total; and that he had equity of approximately $675,000 in real estate and other holdings. In addition to the mortgages on his property, he listed unsecured debt of loans totaling $56,750.
A separate declaration by appellate attorney Bernard N. Wolf explained that husband had retained him to represent him in the third appeal. Husband already owed Wolf’s office $20,312.17 for services performed through June 2009, and Wolf anticipated spending an additional 60 hours at a rate of $525 per hour.
Wife submitted opposition papers arguing that husband’s financial situation was more favorable than her own and that she lacked the ability to pay his appellate court fees. The record on appeal contains no supporting declarations by wife.
An evidentiary hearing was held, at which husband was cross-examined about his income and expense declaration. He testified that he currently had $1,100 in his business account; that he had $10,000 to $11,000 in a real estate investment account he could not access; that his average monthly income was $3,300 plus $906 in Social Security; that his expenses were about $13,000 a month; that he had paid his bills over the last few years by borrowing heavily from an equity line and other sources; that he had several loans secured against his personal residence and could no longer access that equity.
Wife testified that she earns $11,667 each month in gross income and receives about $2,500 from two rental properties she owns, one of which was unencumbered by any mortgage. She estimated the value of the rental properties at less than $200,000 each. Her personal residence was worth about $1.2 million with encumbrances against it of about $850,000. She had $50,000 in a retirement plan, plus an individual retirement account. Wife testified that as of July 21, 2008, she had paid $99,036 in attorney fees and owes her current attorney $68,000 in legal fees as well as about $20,000 for loans he made to her. She estimated that her monthly expenses were $11,000.
While the evidentiary hearing was proceeding, husband submitted an updated income and expense declaration indicating his average monthly income from self-employment was $2,887 and that he had over $350,000 in debts, including $238,000 on an equity line secured by his residence.
After taking the matter under submission, the court issued a written statement of decision awarding husband $26,650 for appellate fees and costs. The court noted that maintaining a parity of representation was a fundamental public policy, and that it was up to the court to consider how to best apportion the cost of litigation under all the circumstances. It summarized the evidence noted above, concluded that husband’s earnings had been significantly reduced due to the economic downturn, and rejected wife’s assertion that he was currently concealing funds. The court indicated that the parties had similar expenses, but wife earned almost three times as much as husband. It concluded that husband’s need for representation was “high, ” given that wife had filed a number of appeals, and that without an award of fees, the parties would not have equal access to counsel. Wife appeals.
DISCUSSION
I.
Wife contends the pendente lite attorney fee award to husband must be reversed because this court, in its opinion filed June 24, 2010, ordered that the parties would bear their own costs on the third appeal (A124962). She argues that attorney fees are a component of costs, and that our disposition amounted to a determination that neither side should be ordered to pay any portion of the other’s attorney fees in the third appeal. We disagree.
The prevailing party in a civil appeal is entitled to recover costs, including filing fees, the amount paid for preparation of the record, and the costs associated with preparing, copying, filing and serving the briefs. (Cal. Rules Ct., rule 8.278(a)(1), (d)(1).) Absent an order to the contrary, “an award of costs neither includes attorney fees on appeal, nor precludes a party from seeking them under rule 3.1702 [allowing claims for statutory or contractual attorney fees in the trial court].” (Rule 8.278(d)(2).) “The prevailing party is the respondent if the Court of Appeal affirms the judgment without modification or dismisses the appeal [and] is the appellant if the court reverses the judgment in its entirety. [¶] [] If the Court of Appeal reverses the judgment in part or modifies it... the opinion must specify the award or denial of costs.” (Rule 8.278(a)(2), (3).)
References to rules are to the California Rules of Court.
In the third appeal, we affirmed that aspect of the judgment resolving the disputed property issues in husband’s favor, vacated the order that wife pay husband’s attorney fees, and remanded the case for further proceedings on the attorney fees issue. There being no prevailing party within the definition of rule 8.728, we ordered that husband and wife bear their own costs on appeal. Our disposition did not purport to limit either party’s ability to seek statutory attorney fees in the trial court if appropriate. (See Mustachio v. Great Western Bank (1996) 48 Cal.App.4th 1145, 1149-1150 [rejecting claim that appellate court determined the parties should bear their own attorney fees on appeal by ordering each party to bear its own costs on appeal]; rule 8.278(d)(2).)
II.
Wife next argues that the fee award under section 2030 must be reversed because the evidence did not support a finding that she had the ability to pay husband’s appellate court attorney fees or that he had an actual need for her to do so. We are not persuaded.
Section 2030 authorizes a need-based award of attorney fees and costs in a dissolution proceeding to “ensure that each party has access to legal representation to preserve each party’s rights.” (§ 2030, subd. (a)(1).) The purpose of a need-based pendente lite fee award is not the redistribution of money between the parties, but the achievement of parity so that both sides can retain legal counsel. (Alan S. v. Superior Court (2009) 172 Cal.App.4th 238, 251-252.)
An application for need-based fees under section 2030 is addressed to the sound discretion of the trial court. (In re Marriage of Keech (1999) 75 Cal.App.4th 860, 866 (Keech).) We review the court’s underlying factual findings for substantial evidence, viewing the record in the light most favorable to the judgment. (See In re Marriage of Calcaterra and Badakhsh (2005) 132 Cal.App.4th 28, 34.) When considering an award of fees under section 2030, the court must evaluate “(A) the respective incomes and needs of the parties, and (B) any factors affecting the parties’ respective abilities to pay.” (§ 2030, subd. (a)(2).) The court must consider whether “the making of the award, and the amount of the award, are just and reasonable under the relative circumstances of the respective parties.” (§ 2032, subd. (a).)
In its statement of decision, the trial court made a number of findings regarding husband’s financial circumstances: (1) his monthly income was an average of $2,887 for his business plus $906 in Social Security; (2) he had approximately $586,750 in home equity, but could not draw on this equity as it was necessary to protect the mortgage holder’s interest; (3) he had access to assets totaling about $22,000; (4) his monthly expenses were approximately $11,000, including $2,000 for service on credit card debt; (5) his outstanding legal fees as of January 2010 were approximately $69,000, and he had paid about $305,000 in attorney fees and costs since the case began in 2002. By contrast, wife’s monthly expenses and income were approximately equal, between $12,000 and $15,000, and she had approximately $640,000 equity in valuable real properties.
From these facts, the court concluded that wife was “able to pay most all her monthly expenses from her work and rental income. [Husband] goes into more debt monthly.” The court also found that husband’s need for fees was high, that some of his legal fees and costs were due to appeals filed by wife, and that the appeal for which fees were currently sought had been taken from an order requiring wife to pay him fees and costs as a prevailing party.
The court’s findings were supported by substantial evidence when viewed in the light most favorable to the judgment, and they justify the award of need-based fees. A fee award will not be reversed absent a clear showing that the court abused its discretion; i.e., that “ ‘considering all the evidence viewed most favorably in support of its order, no judge could reasonably make the order made. [Citations.]’ ” (Keech, supra, 75 Cal.App.4th at p. 866.)
Wife argues that husband is a “confessed liar” who did not present any credible evidence of his need. She claims that he once falsified a promissory note from his sister to obtain a favorable loan and reported his residence as a rental property on his tax returns to avoid paying capital gains taxes. Wife argues it is “not possible” that husband could have $10,000 to $13,000 a month in living expenses on an alleged income of $2,000 to $3,000 a month. The court recognized that husband had been “less than truthful” in reporting some of his assets in the past, but concluded: “[T]he evidence is insufficient to find that he has been concealing funds over the past 3 years. The court finds credible that the economic crisis has significantly reduced his earnings as a self employed sales representative.”
Wife’s assertion that husband’s testimony and declarations were not worthy of belief is essentially a request that we substitute our own judgment for that of the trial court. As a reviewing court, “[w]e do not reweigh the evidence or reconsider credibility determinations. [Citation.]” (In re Marriage of Dandona & Araluce (2001) 91 Cal.App.4th 1120, 1126.)
Nor has wife demonstrated that $26,650 was an unreasonable amount for appellate fees and costs. Although she characterizes the fee award as “huge, ” she makes no attempt to explain why it was an abuse of discretion in light of the legal work ultimately performed on husband’s behalf during the third appeal.
III.
The hearing on husband’s entitlement to need-based attorney fees was held on various dates between November 2009 and February 2010. The trial court ruled that because the issue hinged on husband’s current financial state, it would only allow evidence from 2007 to the present to impeach his most recent income and expense declaration. Wife argues that the evidence from earlier years should have been admitted, because events occurring before 2007 tended to show that husband was secreting funds and did not actually have a need for the fees he sought. We disagree.
A trial court has broad discretion to exclude evidence that is unduly time consuming and of limited probative value. (Evid. Code, § 352; Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 430.) Husband was cross-examined about his income, assets and transactions from 2007 through 2009, and the court could reasonably conclude there was little value in going back further in time. Wife has failed to demonstrate that the court “ ‘exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.’ ” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247, fn. 15.)
IV.
Wife finally argues that section 2030 violates her constitutional rights to equal protection and due process and to petition the courts because it penalizes her for pursuing her legal rights. This same contention was raised in her second appeal and rejected in our opinion filed June 23, 2009. (Moody v. Moody (A123034), nonpub. opn.) That prior opinion is now the law of the case. (Kowis v. Howard (1992) 3 Cal.4th 888, 892-893.)
DISPOSITION
The judgment (order granting pendente lite award of attorney fees and costs) is affirmed. Ordinary costs on appeal are awarded to husband.
We concur. JONES, P. J., SIMONS, J.