Opinion
G059810
06-20-2022
In re Marriage of JENNIFER MICHELLE and ROBERT JAMES ROGERS. v. ROBERT JAMES ROGERS, Respondent. JENNIFER MICHELLE ROGERS, Appellant,
Keese Hargraves, Charles Neal Hargraves for Appellant. Hughes & Hughes, Lisa Hughes for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a postjudgment order of the Superior Court of Orange County No. 06D008905, John L. Flynn, Judge. Affirmed.
Keese Hargraves, Charles Neal Hargraves for Appellant.
Hughes & Hughes, Lisa Hughes for Respondent.
OPINION
O'LEARY, P. J.
Jennifer Michelle Rogers (Jennifer) appeals from a postjudgment order in which the trial court denied her request that her former husband, Robert James Rogers (Robert), be ordered to pay her attorney fees and costs under Family Code sections 2030 and 2032. Jennifer incurred these attorney fees during change-of-custody proceedings in which the court removed the couple's two minor children from Jennifer's primary physical custody and placed them with Robert to protect their well-being. Jennifer contends the court abused its discretion by denying her request for need-based attorney fees and costs. We disagree and affirm the order.
We refer to the parties by their first names for ease of reading and clarity; no disrespect is intended.
All further statutory references are to the Family Code.
FACTS
Jennifer and Robert divorced in April 2008. Following their divorce, they shared joint physical and legal custody of their children, but Jennifer had primary physical custody. Robert paid Jennifer monthly child support.
In October 2019, Robert filed an ex parte application for temporary emergency orders, alleging excessive daily drinking by Jennifer and child endangerment and mistreatment by Jennifer and her new husband (Stepfather). Robert sought sole physical custody of their two minor children, appointment of counsel for the minors, therapy for the minors, and an emergency investigation order. The court issued temporary emergency orders giving Robert sole physical custody of the children and denying Jennifer visitation. The court also appointed counsel for the minors and ordered an emergency investigation. The matter was set for a hearing the following week.
At the hearing, both parties were present with counsel. Jennifer's counsel indicated he had been recently retained because it took Jennifer a couple of days to obtain his retainer fee. After hearing testimony from the emergency investigator, the court found an emergency existed based on multiple facts, including Jennifer's alcohol abuse in the children's presence and its impact on her parenting skills. The court ordered Family Court Services to perform a partial child custody investigation. Pending the outcome of that investigation, the court ordered Robert to have sole legal and physical custody of the children and Jennifer to have four hours monitored visitation. The court indicated Jennifer was responsible for the monitored visitation fees unless the parties agreed to a safe, free monitor. The court suspended Robert's child support payments while the children were in his custody. When the court ordered an alcohol evaluation of Jennifer, Robert indicated he would advance the costs of the alcohol evaluation, subject to later reallocation by the court. The court also ordered the children be provided therapy. After examining both parties regarding their incomes and expenses, the court ordered Robert to pay the full costs of the custody investigation and for minors' counsel, subject to reallocation. The matter was continued for a hearing in January 2020.
In January, the parties submitted income and expense declarations. Robert declared he was unemployed but received a "[m]onthly allowance" from his parents in the amount of $14,500 and $730 monthly income from a real estate investment trust. His declaration showed assets totaling nearly $300,000 and $13,700 in monthly expenses. Jennifer worked part-time as a receptionist at a hair salon and had a monthly income of $1,581. Her debts exceeded her assets as she had approximately $20,500 in credit card debt. Jennifer declared she had paid $400 for monitored visitation and $220 for alcohol monitoring and these expenses were ongoing. Stepfather's gross monthly income was $7,047, and their monthly expenses were $7,800.
At the hearing in January 2020, the court reviewed the child custody investigation report and heard testimony from the alcohol evaluator. The court adopted the report's recommendations and the alcohol evaluator's recommendations and warned if they were not followed, Jennifer's visitation would be terminated. Based on the alcohol evaluator's recommendations, the court issued orders with numerous conditions Jennifer was required to satisfy, including enrolment in an alcohol patient program, submit to an assessment by a psychiatrist board-certified in addiction, attend weekly individual psychotherapy with a psychologist, and perform alcohol breathalyzer testing at least four times a day. A hearing to review Jennifer's progress was scheduled for July 2020. In July, the court continued the matter to September to allow Jennifer more time to complete certain requirements in its orders.
In August 2020, Jennifer filed a request for order of need-based attorney fees and costs in the amount of $33,000. As of that date, she had incurred approximately $29,400 in attorney fees and estimated $4,000 in future attorney fees to resolve the matter. She had paid $5,000 in attorney fees, which she borrowed from a parent. She filed a new income and expense declaration, which showed she had been unemployed since March 2020 because of the COVID-19 closure of her workplace. She was receiving $983 in unemployment compensation monthly and the temporary $1,200 monthly supplement provided by the Federal Pandemic Unemployment Compensation program. Her debts still exceeded her assets as Jennifer had $3,000 in her checking account and approximately $22,500 in credit card debt. Her husband's gross monthly income remained $7,047, but their monthly expenses had decreased to about $7,000. Jennifer's request for attorney fees also included a declaration from her counsel and his itemized billing statements.
Robert opposed Jennifer's request for attorney fees, and he argued each party should bear its own fees and costs. He presented multiple arguments why Jennifer's request should be denied: (1) she had not sufficiently demonstrated need for the award; (2) awarding her attorney fees and costs was neither just nor reasonable under the circumstances; (3) her failure to comply with court's orders resulted in additional fees and costs for both parties; and (4) he had already contributed to her costs by paying most of the expenses arising from the litigation. Robert stated he paid $13,875 for the alcohol evaluator; $6,380 in attorney fees for minors' counsel; $9,225 for the minors' therapist; $2,655 for the child custody investigation; and $1,287 for Jennifer's monitored visitation. He had also incurred $48,216 for his own attorney fees, which his parents had paid. Robert filed a new income and expense declaration; this time he characterized the $14,500 he received monthly from his parents as a loan against his inheritance. The amount he received monthly from the real estate investment trust had increased to $950. His monthly expenses increased slightly to $13,800, and his assets had decreased to $269,000.
In September 2020, the court held a hearing on Jennifer's progress and compliance with its prior orders and her request for attorney fees. The court found Jennifer had failed to comply with its orders, and the court terminated her visitation. After receiving evidence and hearing argument from the parties, the court denied Jennifer's request for attorney fees. The court explained its reasoning as follows:
"In the current situation, there is an apparent disparity between the two of them. But the [section] 2032 provision requires that the award be just and reasonable under the circumstances.
"And despite the clear disparity, it's clear that [Jennifer] fails to demonstrate that the making of the award from this Court would be just and reasonable, as I look at the totality of the facts in this case.
"The factual circumstances giving rise to this whole thing we've been doing -- basically, we're to look out for the child's best interest because of [Jennifer's] conduct or misconduct and the way she comports herself in her life.
"The independent experts, including the minor's counsel, basically led to a determination that the [children's] best interest required, among other things, that [Robert's requests be granted]. So [Robert] got the sole physical custody of the children.
"We got professional monitors, visitation, all those findings and orders that we were talking about earlier that were necessary for -- in order to secure the best interest of the minor children, all of things which were aimed at improving [Jennifer] and/or causing [her] to improve her status and situation, not only as an individual but also for the benefit of the minor children.
"She has . . . failed in her ability to comply with those orders that the Court set in place. After an emergency investigation and a [partial child custody investigation], she has failed to come to the -- she just has not stepped up to the plate. She has not done what was ordered.
"It was clear. It was straightforward. She has not done those things. She has failed in so many different aspects. And then that has caused further orders and further fees and further costs that are also being requested here.
"So she violated that January 28, 2020, order. She missed tests. She failed to provide results of the tests. She did not attend the type of doctors and treatment therapy we put in place. She didn't have the type of psychotherapy we asked her to do.
"Her conduct is the primary and centrally focused cause of every one of the expenses here. And so [Robert], in the meantime, has paid out a very large amount of money here. He's paid for [the alcohol evaluator], for minor's counsel's fees. He's paid for the child custody investigation, for the monitored visitation. He paid for . . . [the children's therapist]. He's paid for all these different people throughout the whole time.
"He was -- but why did he do that? He was forced to do that to protect the best interest of these children because of [Jennifer's] sole and exclusive conduct. That is the basis of it.
"So for [Jennifer] to come now and say, 'Hey, listen. I did all these bad things which required all these types of activities, which, then, on the backside, required all these special orders and all these subsequent hearings, and then I still failed to comply and to conform and comport my behavior in a fashion consistent with what was expected of me, in order to make sure that my conduct would not be detrimental to the best interest of the minors' -- to do all that thing and then say that should serve as a basis for her [to be awarded need-based attorney fees], that is just not just. That is just not reasonable.
[¶] . . . [¶]
" . . . I do not read the equalizing payment schedule under 2030/2032/3121(b) as forcing me to make [Robert] pay for unreasonable conduct and behavior on behalf of [Jennifer]."
DISCUSSION
Jennifer contends the court erred by denying her need-based attorney fee request. We disagree.
In postdissolution proceedings, need-based attorney fee awards are governed by sections 2030 and 2032. (In re Marriage of Ciprari (2019) 32 Cal.App.5th 83, 111 (Ciprari).) Section 2030, subdivision (a), states: "(1) In a proceeding for dissolution of marriage . . . and in any proceeding subsequent to entry of a related judgment, the court shall ensure that each party has access to legal representation, including access early in the proceedings, to preserve each party's rights by ordering, if necessary based on the income and needs assessments, one party, . . . to pay to the other party, or to the other party's attorney, whatever amount is reasonably necessary for [attorney] fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding. [¶] (2) When a request for [attorney] fees and costs is made, the court shall make findings on whether an award of [attorney] fees and costs under this section 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 fees and costs. . . ." "The purpose of a section 2030 fee award is to ensure that the parties have adequate resources to litigate the family law controversy and to effectuate the public policy favoring 'parity between spouses in their ability to obtain legal representation.' [Citations.]" (In re Marriage of Braud (1996) 45 Cal.App.4th 797, 827 (Braud).)
"Section 2030 is (and always has been) controlled and supplemented by section 2032." (Kevin Q. v. Lauren W. (2011) 195 Cal.App.4th 633, 640 (Kevin Q.).) Section 2032, subdivision (a), requires the court consider whether a need-based attorney fee award under section 2030 is "just and reasonable under the relative circumstances of the respective parties." Subdivision (b) of section 2032 guides the court in making that determination. It states: "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. The fact that the party requesting an award of [attorney] fees and costs has resources from which the party could pay the party's own [attorney] 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. Financial resources are only one factor for the court to consider in determining how to apportion the overall cost of the litigation equitably between the parties under their relative circumstances." (§ 2032, subd. (b), italics added.)
Section 4320, which is referenced in section 2032, subdivision (b), lists numerous factors for a court to consider in ordering spousal support. (See Alan S. v. Superior Court (2009) 172 Cal.App.4th 238, 253 (Alan S.).)
Reading the statutes together (with section 4320, where relevant), elucidates "the idea that a pendente lite fee award should be the product of a nuanced process in which the trial court should try to get the 'big picture' of the case, i.e., 'the relative circumstances of the respective parties' as the statute puts it. [Citation.]" (Alan S., supra, 172 Cal.App.4th at p. 254.) "While no particular language is required in an order awarding attorney fees under sections 2030 and 2032, 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. [Citations.]" (Ibid.)
Simply stated, "[i]n determining whether to award attorney fees and costs in postdissolution proceedings, the trial court must consider '"how to apportion the overall cost of the litigation equitably between the parties under their relative circumstances."' [Citation.]" (In re Marriage of Dietz (2009) 176 Cal.App.4th 387, 391 (Dietz).) We review a ruling on need-based attorney fees for an abuse of discretion and must affirm unless no judge reasonably could make the same order, "considering all the evidence viewed most favorably in support of [the] order." (In re Marriage of Sullivan (1984) 37 Cal.3d 762, 769; In re Marriage of Rosen (2002) 105 Cal.App.4th 808, 829.)
Here, we discern no abuse of discretion. The record reflects the court was cognizant of the factors in sections 2030 and 2032, and it equitably apportioned the overall costs of the litigation. In denying Jennifer's request for attorney fees, the court considered not only the parties' financial resources, but also the nature of the litigation and Jennifer's lack of compliance with the court's orders, which resulted in an additional hearing and expenses. In determining what was just and reasonable under the parties' relative circumstances, the court also considered Robert's expenditures during the proceedings. Robert paid a total of $33,422 for (1) Jennifer's alcohol evaluator, (2) the partial child custody investigation, (3) the attorney fees for minors' counsel, (4) the minors' therapist, and (5) part of the costs of the monitor for Jennifer's visitation. These expenditures were in addition to his own attorney fees. The court considered all of the evidence before concluding that ordering Robert to pay another $33,000 for Jennifer's attorney fees was not just and reasonable under the circumstances.
Jennifer's arguments the court abused its discretion are not persuasive. She asserts once the court found a disparity between the parties' access to funds to pay for counsel, the court was required under section 2030 to make an attorney fee award in her favor. We disagree. While section 2030 strives to create "'parity between spouses in their ability to obtain legal representation'" (Braud, supra, 45 Cal.App.4th at p. 827), parity is not the sole consideration. (See Darab Cody N. v. Olivera (2019) 31 Cal.App.5th 1134, 1144 (Darab Cody N.) [mother "not entitled to fees simply because her income is less than [father's]"]; Ciprari, supra, 32 Cal.App.5th at p. 112 ["Notwithstanding the parties' relative economic circumstances, an award under section 2030 et seq. is properly denied if a case has been overlitigated or if the fees otherwise were not 'reasonably necessary'"].) Section 2030 does not mandate the court simply determine mathematically which party has greater financial resources and then redistribute those resources. (Alan S., supra, 172 Cal.App.4th at p. 251.) The court's first consideration when evaluating a request for attorney fees and costs under section 2030, is "whether an award of [attorney] fees and costs . . . is appropriate" under the statute. (§ 2030, subd. (a)(2), italics added.)
Moreover, "[a] fee award under section 2030 must comport with section 2032" as the two "form a statutory package." (Kevin Q., supra, 195 Cal.App.4th at p. 641.) Section 2032 conditions an award under section 2030 to situations where it would be "just and reasonable under the relative circumstances of the respective parties." (§ 2032, subd. (a).) "Financial resources are only one factor for the court to consider in determining how to apportion the overall cost of the litigation equitably between the parties under their relative circumstances." (§ 2032, subd. (b), italics added.) Thus, the disparity between the parties' financial resources did not compel the court to grant Jennifer's attorney fee request.
Robert contends the evidence did not establish a disparity in their access to funds to pay for counsel and alternatively asserts if there was a disparity, it favored him. His assertion that he "suffered a greater disparity" in access to funds compared to Jennifer does not pass the straight face test.
Jennifer contends the court relied on improper factors in concluding it would not be just and reasonable to award her attorney fees-her conduct that led to the emergency change of custody request, the fact Robert was the prevailing party, and whether the parties acted in good faith. She asserts by denying her request for attorney fees, "the court was effectively punishing her for her personal shortcomings." We disagree. When considering a request for attorney fees and determining what is just and reasonable under the circumstances, a court can consider, along with other factors, "'"the nature of the litigation . . . [and] the success of the attorney's efforts . . . ."'" (In re Marriage of Keech (1999) 75 Cal.App.4th 860, 870.) A court can also consider a party's tactics or lack of compliance with court orders and whether the parties incurred additional costs as a result. (In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1314; see also In re Marriage of Dick (1993) 15 Cal.App.4th 144, 168 [attorney fee award affirmed under predecessor of § 2032 because the record "reveals a case of stunning complexity, occasioned, for the most part, by husband's intransigence"].) But a court cannot look at a single factor, such as "whether the proceedings were brought in good faith or in earnest," to the exclusion of all other relevant factors. (Dietz, supra, 176 Cal.App.4th at p. 406.) Here, when determining whether an attorney fee award was just and reasonable under the circumstances, the court properly considered the nature of the litigation, the expenses incurred as a result of the litigation, and Jennifer's lack of compliance with the court's orders. It is clear from the court's thorough explanation of its ruling that it denied Jennifer's request based on its consideration of the totality of the circumstances.
We note Jennifer was able to retain counsel and had competent legal representation during the proceedings to preserve her rights and litigate the matter. Jennifer's relative financial circumstances to pay her attorney fees included not only her income but also Stepfather's income. (See Alan S., supra, 172 Cal.App.4th at p. 255 [new partner income relevant in assessing party's financial circumstances].) Thus, the court could properly conclude Jennifer had the ability to pay her own attorney fees, which was only a portion of the overall litigation expenditures. Robert, who had the greater income and assets, shouldered the burden of paying for all of the other professional fees and costs generated during the litigation. Jennifer has not shown "'that no judge could reasonably have made the [same] order'" based on the facts and circumstances of this case. (Darab Cody N., supra, 31 Cal.App.5th at p. 1145.) We conclude the court did not abuse its discretion by denying Jennifer's request for need -based attorney fees.
DISPOSITION
The trial court's order is affirmed. Respondent is entitled to costs on appeal.
O'LEARY, P. J. WE CONCUR: MOORE, J. SANCHEZ, J.