Opinion
H042880
03-16-2017
M.T., Appellant, v. C.C., Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 113CP020578)
In this child custody dispute, appellant M.T. (father) appeals the trial court's order awarding $15,000 in attorney fees to C.C. (mother) under Family Code sections 7605 and/or 7640. We will affirm the order.
Unspecified statutory references are to the Family Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
Mother and father are embroiled in a custody battle over their daughter. In a prior unpublished opinion, we reversed the trial court's October 2013 order directing father to pay mother $10,000 in attorney fees and remanded the matter, directing the trial court "to enter a new order on mother's motion after making the findings required under Family Code section 7605." (Torres v. Cox (May 20, 2015, H040679), p. 6 [nonpub. opn.].)
On June 29, 2015, mother filed a request for order seeking $19,764 in attorney fees and costs ($26,764.86 in fees and costs incurred less $7,000 already paid by father pursuant to the October 2013 order). In support of her request, mother submitted invoices from the Law Office of Stephanie A. Leroux totaling $4,818 and billing statements from The Moreno Family Law Firm (Moreno Firm) reflecting a balance due of $21,946.11.
Father filed his response and, on July 6, 2015, the trial court heard mother's request for attorney fees concurrently with the rehearing on this court's remand of the October 2013 order. On July 29, 2015, the trial court filed a written order directing father to "pay [mother's] attorney fees and costs of $22,000 for which he is credited $7,000 for payment of attorney fees under prior Order of October 23, 2013."
The record does not include a reporter's transcript from this July 6, 2015 hearing.
Father moved for reconsideration of the July 29, 2015 order, on the grounds that mother failed to produce the retainer agreement with the Moreno Firm which would demonstrate mother's obligation to pay attorney fees to that firm. Following argument, the trial court denied the motion by minute order dated September 17, 2015. At the hearing on the motion, the trial court indicated that it was denying the motion as father had not provided "evidence of new or different law, facts, or circumstances" as required under Code of Civil Procedure section 1008, subdivision (a).
Father appealed on September 24, 2015. Mother did not file a respondent's brief. Under California Rules of Court, rule 8.220, this court may decide the appeal on the record, the opening brief, and any oral argument by the appellant.
II. DISCUSSION
Father argues the trial court abused its discretion in awarding mother any attorney fees and costs supposedly owed by her to the Moreno Firm because she failed to produce a written retainer agreement and there is no evidence mother paid any fees to that firm, let alone that the firm sought to collect outstanding fees from her. We find no abuse of discretion.
In his briefing, father does not dispute that portion of the order directing him to pay $4,818 to mother for the attorney fees charged to her by the Law Office of Stephanie Leroux.
Section 7605, subdivision (a) provides: "In any proceeding to establish physical or legal custody of a child or a visitation order under this part, and in any proceeding subsequent to entry of a related judgment, the court shall ensure that each party has access to legal representation to preserve each party's rights by ordering, if necessary based on the income and needs assessments, one party, except a government entity, to pay to the other party, or to the other party's attorney, whatever amount is reasonably necessary for attorney's fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding." Section 7605, subdivision (b) provides, in relevant part: "When a request for attorney's fees and costs is made under this section, the court shall make findings on whether an award of attorney's fees and costs is appropriate, whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for legal representation of both parties. If the findings demonstrate disparity in access and ability to pay, the court shall make an order awarding attorney's fees and costs."
On review of an order under section 7605, "[t]he findings of the court regarding the actual income and needs of the parties are necessarily subject to a substantial evidence standard of review. The determination of the amount which is 'reasonably necessary' to ensure each party has access to legal representation is a decision necessarily committed to the sound judgment of the trial court, and is, accordingly, subject to review under an abuse of discretion standard." (Kevin Q. v. Lauren W. (2011) 195 Cal.App.4th 633, 642 (Kevin Q.).)
Under the substantial evidence test, "[o]ur sole inquiry is 'whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted,' supporting the court's finding." (Sabbah v. Sabbah (2007) 151 Cal.App.4th 818, 822.) " 'We must accept as true all evidence . . . tending to establish the correctness of the trial court's findings . . . , resolving every conflict in favor of the judgment.' " (Id. at p. 823.) Evidence is substantial where it is of " ' "ponderable legal significance," ' " " ' "reasonable in nature, credible, and of solid value . . . ." ' " (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631.)
Section 7605 is "virtually identical" to section 2030, which applies to fee awards in marital dissolution cases. (Kevin Q., supra, 195 Cal.App.4th at p. 640; id. at p. 643 ["section 7605 . . . was deliberately drafted by the Legislature to be identical to section 2030"].)
As we noted in father's prior appeal, it is "an abuse of discretion to order [pendente lite] attorney fees without making any inquiry into the reasonableness of those fees." (In re Marriage of Keech (1999) 75 Cal.App.4th 860, 870.) In Marriage of Keech, an order awarding attorney fees to wife was overturned because wife had not presented "her attorney's bills, or any declaration by her counsel of the amount of time spent, the nature of the work done, or the rate charged." (Id. at p. 864.) Without that evidence, the trial court could not properly evaluate, based on its own experience, the reasonableness of the fees it awarded. (Id. at p. 870.)
In this case, however, the trial court's detailed order describes in detail the basis on which it awarded attorney fees and costs to mother. This includes a description of the parties' relative incomes, expenses (including the respective legal costs incurred by the parties in the course of the instant proceedings), as well as their assets and savings. After setting forth these figures, the trial court expressly found "that there continues to be a disparity in income, access to funds, and ability to pay between the parties. [Father] has the ability to pay the attorney fees and costs of both parties. [Mother] does not have the ability to pay or have access to funds to secure legal representation."
Turning to the question of the fees charged to mother by the Moreno Firm, the trial court noted that nearly half of those fees had in fact been paid by members of mother's church and she was under no obligation to repay their charity. With respect to the remaining fees, the court noted the hourly rate charged by the Moreno Firm and indicated it was comparable to rates charged by family law attorneys of similar experience in Santa Clara County. Examining the charges set forth in the billing, the court noted that the "case evidenced extraordinary high conflict in and out of court, and child custody and visitation issues dominated the litigation." Ultimately, the trial court concluded that the attorney fees charged to mother by the Moreno Firm "are reasonable."
We find no authority to support father's contention that mother was obligated to produce a retainer agreement with the Moreno Firm before securing an award of attorney fees under section 7605. In support of her request, mother submitted various billing statements, along with her sworn declaration. Father had an opportunity to challenge the sufficiency of that evidence prior to the hearing on mother's request, but did not do so. His belated attempt to do so by way of a motion for reconsideration was denied.
Father's notice of appeal states he is also challenging the denial of his motion for reconsideration, but he makes no argument regarding that motion in his opening brief. We therefore consider the claim forfeited. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 419 [contention not raised in the opening brief is forfeited].) --------
On the record before us, the trial court acted within its discretion in awarding attorney fees to mother.
III. DISPOSITION
The attorney fee order is affirmed. M.T. shall bear his own costs on appeal.
/s/_________
Premo, J.
WE CONCUR: /s/_________
Rushing, P.J. /s/_________
Elia, J.