Similarly, the Court of Appeal held in Rosenaur v.Scherer, supra, 88 Cal.App.4th at page 287, that Code of Civil Procedure section 425.16 permitted "recovery of attorney fees that have accrued in representing the defendants . . . notwithstanding counsel's agreement not to look to defendants for payment." In re Marriage of Ward (1992) 3 Cal.App.4th 618, 624, affirmed a statutory fee award in a child support matter under former Civil Code sections 4370, 4370.5, and 4370.6 for services provided pro bono publico. (See also, e.g. County ofHumboldt v. Swoap (1975) 51 Cal.App.3d 442, 444-445 [a welfare recipient was no less entitled to statutory fees under Welfare and Institutions Code section 10962 "simply because they are payable to a legal aid agency which furnishes its services without charge to the client"]; Beverly Hills Properties v. Marcolino (1990) 221 Cal.App.3d Supp. 7, 12 [a party represented without charge by a public interest organization was entitled to a fee award under Civil Code section 1717].)
Id. Similarly, in In re Marriage of Ward, 3 Cal.App.4th 618, 626, 4 Cal.Rptr.2d 365 (Cal.Ct.App. 1992), the Court of Appeal of California held that legal services organizations providing pro bono representation to indigents are eligible to receive attorney fee awards in matrimonial matters. The court noted that the statutes authorizing a court to make an award of attorney's fees set forth various considerations for the court to consider, none of which included establishing "any underlying private obligation to pay attorney's fees in order to obtain an award for such fees."
Within the family law context, " 'ready and available access to legal representation' " has long been considered to be one of the most important safeguards in ensuring fair settlements (In re Marriage of Ward (1992) 3 Cal.App.4th 618, 623 [4 Cal.Rptr.2d 365]). Questions of fundamental fairness arise most particularly in the premarital contract context when the agreement is between two people with unequal bargaining power and business expertise.
See Petropoulos v. Petropoulos, 91 Cal. App. 4th 161, 110 Cal. Rptr. 2d 111, 125 (Ct. App. 2001), Schofield v. Schofield, 62 Cal. App. 4th 131, 73 Cal. Rptr. 2d 1, 7 (Ct. App. 1998). However, in Hayes v. Ward, 4 Cal. Rptr. 2d 365, 372, 3 Cal. App. 4th 618 (Ct. App. 1992), the appellate court ordered an award of attorney's fees for services rendered at the appellate level, but remanded the issue of the exact amount to the trial court. The court stated: "Although this court has the power to render such an award, the trial court can better evaluate these . . . factors in determining an appropriate amount to be awarded . . . for fees on appeal."
From those cases, we can accept that it is improper for a trial court to turn to its own generalized experience in the legal field to affix a fee award when it is "not [yet] apprised of the nature and extent of the services rendered." (Keech, supra, 75 Cal.App.4th at p. 870; accord, In re Marriage of Ward (1992) 3 Cal.App.4th 618, 628 (Ward).) This precept in no way contradicts the trial court's ability to rely on its own observations—i.e., experience specific to the case at hand—as evidence of the extent and nature of the services provided.
The Association's attempts to distinguish this line of cases is based entirely on factual distinctions, and utterly unpersuasive, as courts throughout California have reached similar conclusions when interpreting other statutory fee-shifting provisions. (See, e.g., Ketchum v. Moses (2001) 24 Cal.4th 1122, 1127 [ 104 Cal.Rptr.2d 377, 17 P.3d 735] [attorney fees available under Code of Civil Procedure section 425.16 to litigant represented by pro bono attorney]; Do v. Superior Court (2003) 109 Cal.App.4th 1210 [ 135 Cal.Rptr.2d 855] [discovery sanctions available to litigant represented by pro bono attorney]; In re Marriage of Ward (1992) 3 Cal.App.4th 618, 624 [ 4 Cal.Rptr.2d 365] [statutory fee award in child support matter available to litigant represented by pro bono attorney].) The Association's argument on this point lacks any merit whatsoever.
The purpose of an award of future attorney fees in a dissolution proceeding is to provide the party to whom the award is made an adequate amount to properly litigate the action. ( In re Marriage of Ward (1992) 3 Cal.App.4th 618, 627 [ 4 Cal.Rptr.2d 365] .) "[T]he [trial] court has broad discretion in awarding attorney fees and costs in dissolution proceedings. Its determination will not be disturbed on appeal absent a clear showing of an abuse of discretion.
We note that courts have held an award of attorney fees appropriate even in cases when the party is represented by a pro bono attorney. See, e.g., Henriquez v. Henriquez, 413 Md. 287, 992 A.2d 446, 455–56 (2010); Miller v. Wilfong, 121 Nev. 619, 119 P.3d 727, 729 (2005); Pearson v. Pearson 200 W.Va. 139, 488 S.E.2d 414, 424–26 (1997); In re Marriage of Ward, 3 Cal.App.4th 618, 4 Cal.Rptr.2d 365, 368–70 (1992); In re Marriage of Swink, 807 P.2d 1245, 1248 (Colo.Ct.App.1991); Lee v. Green, 574 A.2d 857, 859–60 (Del.1990); Hale v. Hale, 772 S.W.2d 628, 630 (Ky.1989). Moreover, N.D.C.C. § 14–05–23 does not provide that an indigent party's failure to retain a legal aid attorney or a local attorney is a proper basis to find an unreasonable escalation of fees, so as to constitute fault.
See e.g., In re Marriage of Ward (Cal.App. 1992), 4 Cal.Rptr.2d 365; Beeson v. Christian (Ind. 1992), 594 N.E.2d 441; In re Marriage of Gaddis (Mo.App. 1982), 632 S.W.2d 326 (family law cases); Shands v. Castrovinci (Wis. 1983), 340 N.W.2d 506 (landlord tenant); Kleine-Albrandt v. Lamb (Ind.App. 1992), 597 N.E.2d 1310 (wage claim). [13] We also conclude that policy considerations which were not discussed in our opinion in Thompson militate in favor of allowing the district courts to discretionarily award attorney fees to pro bono attorneys and to Montana Legal Services Association on behalf of indigent clients, providing the statutory criteria of § 40-4-110, MCA, and the evidentiary requirements mentioned above are otherwise satisfied.
The purpose of such an award is to provide one of the parties, if necessary, with an amount adequate to properly litigate the controversy. (In re Marriage of Sullivan (1984) 37 Cal.3d 762, 768 (Sullivan); In re Marriage of Ward (1992) 3 Cal.App.4th 618, 627.) The decision to award pendente lite fees