Courts May Take into Consideration Circumstances Under Family Code Section 2032 to Determine a Party’s Ability to Pay Attorney Fees and May Include Gifts as Support or Income in Determining a Party’s Ability to Pay Attorney Fees

Kevin (Respondent) and Lauren (Appellant) began litigation in March 2007, when Respondent filed a petition to be declared the father of Appellant’s son under the Uniform Parentage Act (UPA). The family law court entered a paternity judgment in Appellant’s favor, which this Court of Appeal reversed. Appellant’s Orange County family law attorney challenges the Orange County’s family law court order requiring Respondent to pay her attorney’s fees.

In December 2009, Appellant’s Orange County family law attorney moved the family law court to order Respondent to pay her outstanding attorney fees of $55,754 and $171,992. In Appellant’s declaration, she declared that her father extended loans to pay her living expenses, but she is now severely limited in her ability to borrow any more significant funds from her father due to his financial limitations. Furthermore, Appellant’s declaration shows that she has not been employed since August 2006 and has no income. Respondent’s Orange County family law lawyer responded that Appellant’s fees were disproportionate. On Respondent’s income and expense declaration, he listed his stocks, bonds, and other readily saleable assets as “undetermined,” and failed to specify the fair market value for them. The family law court denied Appellant’s Orange County family law attorney motion for attorney fees. Appellant contends that the Orange County family law court failed to conduct a proper inquiry under the UPA’s attorney fee provisions (Sections 7605 and 7640). Secondly, Appellant claims that the Orange County family law court took into account her father’s financial support. And finally, she argues the Orange County family law court erred by applying Family Code section 2032 to this case.

In determining the appropriate standard of review, this Court of Appeal applied the abuse of discretion standard, except to the extent it must determine the relevance of Section 2032 to a UPA case, an issue that will be reviewed de novo, and whether the family law court’s express and implied factual findings regarding the parties’ respective income and needs supported by substantial evidence.

Sections 7605 and 7640 of the UPA govern attorney fee awards in UPA cases. Section 7640 gives a court the discretion to “order reasonable [attorney] fees… to be paid to the parties….” Whereas, Section 7605 requires the court to ensure “each party has access to legal representation… by ordering, if necessary based on the income and needs assessments, one party…to pay to the other party…whatever amount is reasonably necessary for attorney’s fees.” Section 2030 authorizes fee awards in marital dissolution cases, and Family Code Section 2032 prescribes additional requirements for fees awards under Family Code Section 2030. Family Code Section 2032 further provides “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 account consideration, to the extent relevant, the circumstances of the respective parties.” The Court found that Sections 2030, 2032, and (where relevant) 4320 form a statutory package. A fee award under Section 2030 must comport with section 2032 potentially with section 4320 as well. Section 2030 is expressly applicable only to marital proceedings. Whereas, sections 7605 and 7640 appear in the UPA which deals with the parent and child relationship. This Court of Appeal held that the Orange County family law court did not err by taking into account the standards and circumstances pertinent under Section 320. And by doing so, the court was able to perform a more thorough evaluation of the parties’ respective abilities to pay.

Appellant’s Orange County family law attorney bears the burden of showing the family law court abused its discretion by failing to award her any attorney fees. Appellant argues the family law court erred in treating her father’s payments to her as income, rather than as gifts. This Court of Appeal found that the Orange County family law court did not abuse its discretion by considering those gifts to be support (or income) for purposes of calculating Appellant’s ability to pay for her attorney fees. Secondly, Appellant’s Orange County family law attorney contends the family law court did not find her attorney’s fees were unreasonable. Finally, Appellant claims Respondent understated his income and overstated his expenses on his income. In Marriage of Alter, the appellate court stated “where a party receives recurring gifts of money, the trial court has discretion to consider that money as income for purposes of” child support. (In re Marriage of Alter (2009) 171 Cal.App.4th 718, 722-23). This Court of Appeal found that substantial evidence supports the Orange County family law court’s factual finding that the regular, recurrent monetary infusions made by Appellant’s father to her over a lengthy period of time, constituted as support and not loans. Next, on the issue of reasonableness of fees, this Court of Appeal must infer the findings in favor of the judgment. Furthermore, this Court must interpret the Orange County family law court’s observation that Appellants counsel “forged ahead, incurring attorney’s fees far in excess of either party’s reasonable ability to pay.” And finally, Alicia R, holds a party waives objections to an opposing party’s income and expense declaration by failing to object in the trial court. Alicia R. v. Timothy M. (1994), 29 Cal.App.4th 1232,1239. Since the argument regarding Respondent’s alleged deficiencies was never brought up in the Orange County family law trial, this Court, therefore, declines to consider the contention raised on appeal.

This Court affirmed the Orange County family law court’s order.

Kevin Q. v. Lauren W., 195 Cal.App.4th 633 (2011).