Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura No. SD031884, Brian Back, Judge
Christoph Walter, in pro. per. for Appellant.
Law Office of Randall J. Sundeen, Randall J. Sundeen for Respondent.
COFFEE, J.
Christoph Walter, proceeding in propria persona, appeals from an order awarding attorney's fees to Heather Walter. Christoph contends that the family law court abused its discretion. We affirm.
We refer to the parties by their first names to ease the reader's task and not out of disrespect.
PROCEDURAL AND FACTUAL BACKGROUND
Heather incurred attorney's fees in responding to Christoph's multi-count request for an order to show cause regarding contempt. Christoph claimed that Heather violated several court orders issued by the family law court following the dissolution of their marriage.
The family law court heard the contempt matter on December 21, 22, and 23, 2009. Christoph withdrew count 2. The court dismissed the remaining 12 counts with prejudice because Christoph failed to establish a prima facie showing of contempt. It ordered both parties to submit updated income and expense declarations by January 15, 2010. The court found that both parties submitted such documentation. On January 7, 2010, Heather's attorney, Randall J. Sundeen, filed a declaration, dated December 23, 2009, in support his attorney's fee request.
On March 4, 2010, the family law court issued a written ruling and awarded $3,250 to Heather "representing a just and equitable portion of attorney's fees incurred by [her] in connection with the contempt proceeding." It based the award on Code of Civil Procedure section 1218 and Family Code sections 271 and 2030 et seq.
All statutory references are to the Family Code unless otherwise stated.
On March 16, 2010, Christoph filed a notice of motion for reconsideration of the court's March 4, 2010 ruling. (Code Civ. Proc., § 1008, subd. (a).) Christoph had not been served with the Sundeen declaration in support of Heather's attorney's fees request.
On May 10, 2010, the family law court heard Christoph's motion for reconsideration. Christoph challenged Heather's income and expense statement because it was dated November 23, 2009, prior to the contempt hearing, and because she listed her husband's income as unknown.
The family law court asked Christoph what he thought was wrong with the amount of attorney's fees it had awarded ($3,250). Christoph responded that it was not fair, just, or equitable, and asked the court to set another hearing so that he could consult with counsel. The court reminded Christoph that it had awarded the contested fees in connection with a multiple-count contempt citation, and that all of the counts were dismissed, except for one count that Christoph withdrew. Christoph proposed that perhaps he should "pay 25 percent of the [fees] award, " because he had established "three of the four requirements for contempt." He repeated that proposal again, adding that he "would request a full hearing" in the alternative. The court found "no need and no good cause" to set a new hearing, and indicated that it had everything necessary "to make a determination as to whether or not the fees appear[ed] to be appropriate." Christoph then requested three weeks to submit "a responsive declaration." The court replied that since Christoph had submitted the reconsideration motion, he "should have had everything... filed by now." It indicated that it would issue a written ruling.
On May 11, 2010, the family law court issued a ruling denying the motion for reconsideration and awarding Heather attorney's fees in the amount of $3,250, "pursuant to Family Code section 2030 et seq." Other relevant portions of the court's ruling follow: "[Christoph] also argues that no fees can be awarded pursuant to Family Code section 271, as no notice was given.... [His] position is well-taken.... 'The court finds that an award of attorney's fees in favor of [Heather] is "just and reasonable under the relative circumstances" of the parties in connection with "determining how to apportion the overall cost of the litigation equitably between the parties." (Sections 2030 et seq.)' This finding was made after the court also found that [Heather] had the need for fees and [Christoph] had the ability to pay a portion of her fees. The fees award is not made pursuant to section 271. The court need not address CCP section 1218 at this time. Based on the court's reconsideration of the March 4th ruling, the court finds: 1) The award is not pursuant to Family Code section 271...; 2) The ruling is made pursuant to Family Code sections 2030 et seq.; and 3) The provisions of CCP section 1218 are still implicated in light of the fact that the underlying OSC was for contempt, but the court does not further address a fees award under section 1218 as a result of the award pursuant to Family Code sections 2030 et seq."
DISCUSSION
Christoph argues that the family law court abused its discretion in awarding attorney's fees because it did not acknowledge his concerns "regarding the fraudulent character of [Heather's] Income and Expense form—or at... least ask[] [Heather] to respond to and refute such a serious accusation"; it failed to "explain any factual basis for the award related to the statutory factors" enumerated in section 4230"; and it completely disregarded section 2030 at the reconsideration hearing. We disagree.
"'A motion for attorney fees and costs in a dissolution action is addressed to the sound discretion of the trial court, and in the absence of a clear showing of abuse, its determination will not be disturbed on appeal.... The discretion invoked is that of the trial court, not the reviewing court, and the trial court's order will be overturned only if, considering all the evidence viewed most favorably in support of its order, no judge could reasonably make the order made....'... [¶] However, 'while the court has considerable latitude in fashioning or denying a pendente lite fee award, its decision must reflect an exercise of discretion and a consideration of the appropriate factors.'" (In re Marriage of Keech (1999) 75 Cal.App.4th 860, 866, citations omitted.)
Former section 2030, subdivision (a)(2) provided that, in a marital dissolution proceeding, "[w]hether one party shall be ordered to pay attorney's fees and costs for another party, and what amount shall be paid, shall be determined based upon, (A) the respective incomes and needs of the parties, and (B) any factors affecting the parties' respective abilities to pay."
Pursuant to section 2032, subdivisions (a) and (b), "The court may make an award of attorney's fees and costs under Section 2030... where the making of the award, and the amount of the award, are just and reasonable under the relative circumstances of the respective parties. [¶]... 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 Section 4320...."
Christoph argues that the court did not make mention of any facts or findings related to the factors enumerated in section 4320. In so arguing, he relies in large part on the text of the court's rulings.
"'It is well established in California that, although the trial court has considerable discretion in fashioning a need-based fee award [citation], the record must reflect that the trial court actually exercised that discretion, and considered the statutory factors in exercising that discretion.'" (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 315.) But no particular language is required in the order. What is required is that "the record (including, but not limited, to the order itself), must reflect an actual exercise of discretion and a consideration of the statutory factors in the exercise of that discretion." (Alan S. v. Superior Court (2009) 172 Cal.App.4th 238, 254.) Here, after reviewing the entire record, we conclude that the court gave proper consideration to the statutory factors.
The section 4320 factors include "[t]he needs of each party, " "[t]he balance of the hardships to each party, " and "[a]ny other factors the court determines are just and equitable." (Id., subds. (d), (k), (n).) The family law court's March 4, 2010 order states that it ordered each party to submit an updated income and expense declaration and any other relevant declarations and that both parties had submitted such documentation. That order and the May 11, 2010 order state that, based on a review of the most recent financial information submitted by the parties, Heather had the need and respondent had the ability to pay attorney's fees. The record includes a copy of Heather's declaration stating that she missed three days of work to attend the contempt proceedings and would miss another day to attend the hearing concerning attorney's fees.
Christoph further argues that Heather did not provide an updated income and expense statement, based upon the fact that the statement she provided predates the December 21-23, 2009 contempt hearing dates in that it was dated November 23, 2009. The record reflects that at least one page of that statement is dated December 23, 2009. After hearing Christoph's concern about the timeliness of the information, the family law court indicated it had the information necessary to make its decision.
Christoph also challenges the family law court's order because Heather did not disclose her husband's income. Assuming that his income was relevant, it was not vital to the court's determination. "The fact that the party requesting an award of attorney's fees and costs has resources from which the party could pay the party's own attorney's fees and costs is not itself a bar to an order that the other party pay part or all of the fees and costs requested. " (§ 2032, subd. (b).) In a similar vein, Christoph argues that the court lacked information regarding the parties' assets. However, the parties' "[f]inancial resources are only one factor for the court to consider" in fashioning an equitable apportionment of litigation costs. (Ibid.) It must also take into consideration all of the circumstances, including the parties' conduct. (In re Marriage of Czapar (1991) 232 Cal.App.3d 1308, 1318-1319; In re Marriage of Stephenson (1984) 162 Cal.App.3d 1057, 1091.) The court's comments regarding the lack of merit in Christoph's lengthy contempt petition suggest that it viewed the contempt litigation as an unnecessary addition to Heather's litigation costs. Heather missed three days of work to attend hearings concerning the petition. Section 4320 authorizes the court to consider the parties' relative hardships and any other factors it determines are just and equitable.
Because sections 2030 et seq. support the attorney's fees award, we do not address Christoph's argument concerning Code of Civil Procedure section 1218. We cannot say on the record before us that the challenged award constitutes an abuse of discretion.
DISPOSITION
The judgment is affirmed. Costs on appeal awarded to respondent.
We concur: GILBERT, P.J., PERREN, J.