Marriage of Nunez and Minar CA4/3 ( 2016 )

Filed 5/27/16 Marriage of Nunez and Minar CA4/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re Marriage of EDWARD A. NUNEZ
and MARY L. MINAR.
EDWARD ALLEN NUNEZ,
G051412
Appellant,
(Super. Ct. No. 10D009231)
v.
OPINION
MARY LORENE MINAR,
Respondent.
Appeal from a judgment of the Superior Court of Orange County, Carla M.
Singer, Judge. Affirmed in part, reversed in part, and remanded with directions.
John L. Dodd & Associates, John L. Dodd, Andrea M. Jackson; and
Warren Chao for Appellant.
The Law Office of Patrick A. McCall and Patrick A. McCall for
Respondent.
* * *
Edward Nunez appeals from a judgment of dissolution awarding the family
residence to his now ex-wife, Mary Minar, as her sole and separate property. The court
1
also denied Edward’s request for spousal support and attorney fees.
Mary owned the residence prior to the marriage. Shortly after the parties
were married, Mary deeded the residence to Edward as his sole and separate property for
the purpose of refinancing the home at a better interest rate. Mary’s understanding was
that Edward would deed the property back to her as her sole and separate property after
the refinancing. That did not happen, however. Edward ultimately added Mary back
onto title, but as a joint tenant. The court held this transaction unfairly benefited Edward,
raising a presumption of undue influence that he failed to rebut. We affirm that portion
of the judgment.
In denying spousal support and attorney fees, the court declined to apply
each of the factors mandated by Family Code section 4320, holding generally there was
2
insufficient evidence to establish the marital standard of living. This was error.
Consideration of each section 4320 factor is mandatory, and there was sufficient evidence
for the court to perform that analysis. With regard to attorney fees, the court also held
Edward’s counsel’s declaration was too vague to assess whether the time spent was
reasonable. This was also error, as there was sufficient, albeit not ideal, evidence on that
front. We remand to the trial court to perform the proper statutory analysis as to both
spousal support and attorney fees.
1
We use first names for clarity, intending no disrespect.
2
All statutory references are to the Family Code unless otherwise stated.
2
FACTS
Mary met Edward in 2000. She was living in a house in Huntington Beach
that she owned in her name only. Mary had previously been married, and pursuant to her
prior divorce proceeding she had purchased her prior spouse’s interest in the house. She
took out a second mortgage on the house to do so. The parties began living together, part
time, sometime in the 2001-2002 timeframe. In 2002, after Mary’s divorce was
completed, Edward was contributing to Mary’s monthly expenses. Also in this time
frame, Mary filed for bankruptcy. Edward moved in with Mary full time in 2004. In
December 2004, foreclosure proceedings were initiated on the house. Edward employed
a specialist in loans and bankruptcies named Donna Kaye Chapman (Chapman), who
helped stave off the foreclosure. In 2004, Mary borrowed $30,000 from Edward to help
pay the mortgage. Mary executed a deed of trust on the home in favor of Edward in the
amount of $30,000. When Mary repaid the loan, Edward reconveyed the deed of trust.
The parties were married in January 2006. Edward gave Mary a wedding
ring worth $40,000.
Five weeks after their marriage, Mary signed a deed granting title to the
house to Edward, which has now become the focus of the parties’ dispute. The purpose
of the deed was to refinance the home. The interest rate on the home was high, and
Mary’s prior bankruptcy prevented her from obtaining a better rate. Edward had “perfect
credit,” and thus the home was refinanced in his name only.
Regarding the refinancing, Mary testified she understood the plan to be that
Edward would deed the house back to her as her sole and separate property.
“Q And what was the understanding, if anything, after the refinance in fact
took place; would you be placed back on title? What was your understanding?
“A It was my understanding the – yes, the house would be mine again, as it
had been for 15 years prior.
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“Q As your sole and separate property?
“A Correct.
“Q Was there ever an understanding that [Edward] would continue to have
some joint ownership in this property?
“A No.”
“Q Now, after May of 2006, you now have secured the financing that you
both had desired. [¶] Did you still have an understanding that you would be placed back
on title as your sole and separate property?
“A Absolutely.
“Q How many [discussions] approximately did you have up through 2008,
if any, with respect to this issue?” Mary replied there were approximately five
discussions.
Mary testified that Chapman was a witness to a conversation the parties had
about the refinancing. Chapman testified she acted as a mortgage broker for the parties.
She advised them she could not get a better interest rate with Mary on title, but she could
get a better rate if only Edward was on title. Chapman testified that she was asked if
Mary could be placed back on title after the refinancing, to which she replied, “I could
not be a part of that, nor could the title company that I worked for be a part of that, but
that absolutely, after the loan was closed, that [Mary] could be added back to title.” After
both parties had questioned Chapman, the court inquired of Chapman whether her
understanding was that Mary would be placed back on title as her sole and separate
property, or as a joint tenant. Chapman replied she did not know, but that her opinion,
which she discussed with the parties, was that “this was a normal transaction between a
husband and a wife that [she had] seen on numerous occasions, and that the home was
their home, and that they were both trying to do the best for their joint financial situation
and their improvement and their home, and it didn’t strike me as being peculiar because I
have handled a lot of situations where unfortunately one person or the other has had a
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hiccup in their credit, and they trust each other. And I clarified that both parties trusted
each other. I mean, there was trust involved on both sides, and I just believed it was a
normal husband-and-wife-type situation.”
The payoff amount on the existing loan was approximately $301,000. As
part of the refinancing, in addition to paying off the loan previously in Mary’s name,
Edward obtained approximately $50,000 cash. Of that $50,000, $30,000 was given to
Edward to pay back the prior $30,000 loan. The remaining $20,000 in cash was “used
for vacations and put into the marriage.” With closing costs, the total amount of the new
loan was $367,000. The prior loan had been an adjustable rate mortgage with an interest
rate over 10 percent and climbing. The new loan had an interest rate of approximately
5.625 percent. As a result, the monthly payment was cut in half. The parties stipulated
that the value of the home as of February 2006 was $785,000, and at the time of trial the
value was $715,000.
After the parties were married, the mortgage was paid with funds that were
commingled. The parties were a “basically married couple with all [their] funds pooled
together.” During the marriage the parties improved the house by adding a pool, to
which both contributed funds.
In May 2008 Edward reconveyed the house to himself and Mary as joint
tenants. His understanding was that this was the intent of the parties all along. He
testified that they were about to refinance the house and he felt it was a good time to put
her back on title.
Mary is a family physician with her own practice. Mary grosses $10,000
per month from her practice, plus occasional bonuses. During the marriage, for nine
months, Edward helped with billing for the practice, for which he was paid $2,000 per
month. When the parties were married, the value of the business was $270,000. When
the parties separated, the value of the business was $330,000. Mary offered an expert
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who opined that, pursuant to the analysis required by Pereira v. Pereira (1909) 156 Cal.
1, the community had no interest in the business.
Edward worked for Home Depot as a human resources manager from 2002-
2008, making approximately $90,000 per year. He was laid off in 2008. Aside from
helping at Mary’s business, he had no other employment, and as of the time of trial was
unemployed. He testified to various steps he had taken to find employment. Since the
parties separated, Edward had been living off of his retirement savings and “large sums
of money” his parents gave him.
The parties separated in September 2010. Edward petitioned for
dissolution of the marriage in October 2010.
After trial, the court ruled the residence was Mary’s sole and separate
property. The court reasoned: “The residence . . . was acquired by [Mary] approximately
17 years before the parties’ marriage. Sometime before 2006 [Edward] loaned [Mary]
$30,000.00. Said loan was secured by a deed of trust on [Mary’s] . . . residence. Then,
on January 13, 2006, [Mary] married [Edward]. Noting that [Mary] still owed [Edward]
$30,000, the parties agreed that [Mary] would refinance her . . . residence so as to pay off
[Edward]. In addition, interest rates had significantly reduced by 2006. It was
understood that in order to obtain a cash out loan it would be best for [Edward] to go on
title instead of [Mary] so as to take advantage of the lowest interest rate possible.
Evidence established that before [Mary] executed a deed in favor of [Edward] it was
specifically discussed and understood between the parties that [Mary] would deed the
property to [Edward] for the sole purpose of placing new financing and after the
refinancing was concluded [Edward] would transfer title back to [Mary].
“The Court finds that when the February 26, 2006 [deed] was executed by
[Mary], [Edward] obtained an unfair advantage. [Edward] had the burden of proof to
establish that there was no undue influence. In this matter [Edward] did not present any
evidence that the February 26, 2006 transaction was not done by undue influence. He
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presented no competent evidence rebutting the presumption. As a result of this
transaction [Edward] received an advantage over [Mary]. When [Edward] failed to
return title as agreed this was constructive fraud [see, In re Marriage of Starr, 189
Cal. App. 4th 277 and In re Marriage of Fossum (2011) 192 Cal. App. 4th 336.] He had the
burden to overcome the presumption of unfair advantage by establishing that [Mary]’s
signing of the quitclaim deed was freely and voluntarily made, with full knowledge of all
the facts, and with a completed understanding of its effect. As such, the Court finds in
favor of [Mary] and finds that the . . . residence is her separate property.”
The court also denied Edward any spousal support: “I must tell you, my
studying on all of the issues that we have hereto for [sic] addressed sort of precluded a
serious look on the question of spousal support. However, my recollection is consistent
with [Mary’s counsel’s] representation in his closing argument that there was really no
evidence to support the [Family Code section] 4320 factors that the court must use in
order to make an award with respect to spousal support. And I did note in [Mary’s
counsel’s] reply brief the argument that on a short-term marriage, the time to have made
an award was presumably two years ago since the two-year presumed length of spousal
support would be over by now. I think what you’re saying, and correct me if I’m wrong,
you’re way more familiar with this case than I am . . . . I think what you’re saying, so if
there was no O.S.C. regarding spousal support, there should be no spousal support, and it
should not be retroactive.” Mary’s counsel then clarified that he was not making that
argument. The court then asked Edward’s counsel to recite the evidence that would
support the section 4320 factors. Edward’s counsel noted there was evidence of
Edward’s earning capacity, marketable skills given his age, and job prospects. Counsel
also cited Edward’s efforts in building up Mary’s business, as well as Mary’s income and
consequent ability to pay support.
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Notwithstanding counsel’s recitation, and the court’s own acknowledgment
that it needed to enunciate and evaluate the section 4320 factors, the court declined to do
so.
“Well, I think the problem, too, is that – and this is where the law, it seems
to me, has evolved since my last tour of duty in family law about 15 years ago – this is
not a court of equity when it comes to spousal support. The law is very clear that the
court needs to determine the — help me, Mr. McCall [Mary’s counsel].
“Mr. McCall: The martial standard of living
“The Court: Thank you. [¶] — The martial standard of living. The court
can only make that determination based on the evidence. [¶] The court needs to
determine and respond to and enunciate the 4320 factors in making an award of spousal
support. When the court is left with little or no evidence on those factors, the court can’t
just stand up and say, well, it’s just not fair if he doesn’t get spousal support. After all,
he’s not getting the ring, he’s not getting the house, and he’s not getting the business.
Neither of the income and expense declarations, which were filed shortly before trial, . . .
were admitted into evidence. [¶] Based on the evidence that I heard, other than knowing
the house was [Mary’s] home for 19 years and where she raised her children, I wouldn’t
have anything that I can remember from the record that would enable the court to come to
a conclusion as to the marital standard of living, other than knowing that [Mary’s]
practice in medicine was located in Fountain Valley, and the house was located in
Huntington Beach, I don’t know that I had any facts before me to help me enunciate the
4320 factors.”
“So I think I’ve heard you both on the question of spousal support, and the
request for spousal support is denied.”
The court also denied Edward’s request for attorney’s fees. The court
found Edward’s counsel’s declaration was insufficiently detailed to permit the court to
assess the reasonableness of the fees: “Well, I have to make a determination if fees were
8
reasonable, and I simply can’t do that without an un-redacted billing that would help me
determine what it cost for every action.” The court also found it could not assess the
section 4320 factors to determine whether an award of fees to Edward would be
appropriate. Accordingly, it ordered the parties bear their own fees.
The court also ruled that Mary’s business was entirely her separate
property, and that the ring was Mary’s sole and separate property. Edward timely
appealed.
DISCUSSION
Edward contends the court erred in three ways: in applying the wrong
burden of proof regarding disposition of the house, in failing to enunciate the section
4320 factors in denying spousal support, and in denying his request for attorney fees. We
affirm the court’s disposition of the property, but reverse the court’s order denying
spousal support and attorney fees.
The House
There were two bases upon which the court awarded the house to Mary:
that the transaction deeding the house to Edward represented an unfair advantage to him,
and he failed to rebut the resulting presumption of undue influence; and Edward’s failure
to reconvey the home to Mary as her sole and separate property violated an agreement the
parties had prior to the transaction. Because we agree Edward was unduly advantaged
and failed to rebut the presumption of undue influence, we need not address whether
Edward violated an agreement to reconvey the property.
“‘Appellate review of a trial court’s finding that a particular item is separate
or community property is limited to a determination of whether any substantial evidence
supports the finding.’” (In re Marriage of Rossin (2009) 172 Cal. App. 4th 725, 734.)
9
However, where “the basic ‘inquiry requires a critical consideration, in a factual context,
of legal principles and their underlying values,’ the determination in question amounts to
the resolution of a mixed question of law and fact that is predominantly one of law,”
which we review independently. (In re Marriage of Lehman (1998) 18 Cal. 4th 169, 184.)
We first address the correct burden and standard of proof. There are
conflicting presumptions that potentially apply in cases such as this. The first is the
presumption of title which states, “The owner of the legal title to property is presumed to
be the owner of the full beneficial title. This presumption may be rebutted only by clear
and convincing proof.” (Evid. Code, § 662.) However, this presumption may give way,
in transactions between spouses, to the presumption of undue influence, “because spouses
occupy confidential relations with each other, when an interspousal transaction
advantages one spouse over the other, a presumption of undue influence arises.” (In re
Marriage of Haines (1995) 33 Cal. App. 4th 277, 287.) “[W]here there is a conflict
between the common law presumption in favor of title as codified in [Evidence Code]
section 662 and the presumption that a husband and wife must deal fairly with each other,
application of [Evidence Code] section 662 is improper.” (Ibid.)
Here we must decide whether a presumption of undue influence attaches to
Mary’s transfer of the residence to Edward, and, if so, whether it was rebutted.
“Generally, a spouse obtains an advantage if that spouse’s position is improved, he or she
obtains a favorable opportunity, or otherwise gains, benefits, or profits.” (In re Marriage
of Mathews (2005) 133 Cal. App. 4th 624, 629.) Edward argues there was no unfair
advantage because he ultimately obtained a 50 percent interest in the home but,
“[b]ecause [Edward] also assumed the liability for the mortgage, he did not ‘profit’ in this
context. Certainly, there was nothing ‘unfair’ about the transaction because [Mary] could
not refinance on her own.” There is some facial appeal to this argument. After all, under
the “intent of the lender” rule, the proceeds of the loan were Edward’s separate property
which he used to pay down Mary’s loans, which amounted to close to 50 percent of the
10
value of the home. (See In re Marriage of Neal (1984) 153 Cal. App. 3d 117, 125,
disapproved of on other grounds by In re Marriage of Buol (1985) 39 Cal. 3d 751, 763 &
fn. 10 [“the security for the loan pursuant to a first deed of trust . . . was [the wife’s]
separate property, and ‘funds procured by the hypothecation of separate property of a
spouse are separate property of that spouse’”]; Hogoboom & King, Cal. Practice Guide:
Family Law (The Rutter Group 2015) ¶ 8:275, p. 8-104.)
Edward’s argument, however, obscures the real substance of the
transaction. Edward did not contribute $367,000 of his own independent funds to the
residence. Rather, he obtained a quite valuable residence for no consideration
whatsoever, then hypothecated that residence to obtain a loan that was so much lower
than the actual value of the home that he was never in any significant danger of suffering
loss on the loan. The only real contribution Edward made to the transaction was to
impair his own credit. While that is something, there was no evidence that it was worth
50 percent of the equity in the home (which, given the over $400,000 in equity in the
home, amounted to over $200,000). Accordingly, Edward received an unfair advantage
3
from the transaction and thus the presumption of undue influence applied.
To rebut the presumption, Edward needed to show, by a preponderance of
the evidence, the transaction “was freely and voluntarily made, with a full knowledge of
all the facts and with a complete understanding of the effect . . . .” (In re Marriage of
Mathews, supra, 133 Cal.App.4th at p. 630.) The trial court concluded he had not done
so, and substantial evidence supports that conclusion. Mary testified that her
understanding was that the house would be returned to her as her sole and separate
property. Crediting that testimony, plainly she did not enter into the transaction with the
3
The parties dispute whether we should characterize Edward’s gain from the
transaction as 100 percent of the equity in the home, since he initially took title as his sole
and separate property, or 50 percent of the equity in the home, since he ultimately put
Mary back on title as a joint tenant. Since we conclude he obtained an unfair advantage
under either scenario, we need not resolve that dispute.
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understanding that Edward would own 50 percent of the house. And while Chapman, the
loan broker, testified that her opinion was that the house was theirs and this was a normal
husband-wife transaction, she could not say whether the parties understood whether Mary
would be added back onto title as her sole and separate property or as a joint tenant.
Given the ambiguity in Chapman’s testimony, it did not require, as a matter of law, the
court to find the presumption had been rebutted. Thus there was no error in awarding the
house to Mary as her sole and separate property.
In the alternative, Edward contends the court erred by failing to reimburse
him for the community’s contributions to paying down the mortgage and capital
improvements, such as the addition of a $75,000 pool paid for by community funds. (See
generally In re Marriage of Marsden (1982) 130 Cal. App. 3d 426; In re Marriage of
Moore (1980) 28 Cal. 3d 366; In re Marriage of Sherman (2005) 133 Cal. App. 4th 795,
800 [“Courts have applied this so-called Moore /Marsden rule not only where the parties
use community funds to pay down a mortgage, but also where they use community funds
to make improvements to a residence purchased by one of the parties before marriage and
those improvements increase the property’s equity value”].) The problem with this
argument, as Mary points out, is that, at trial, Edward never asked the court to order
reimbursement. He placed all his proverbial eggs in the basket of being a 50 percent
owner of the home. After losing at trial, Edward filed a motion for new trial in which, for
the first time, he sought a new trial to determine his rights of reimbursement. Edward has
not presented any authority, however, requiring the trial court to grant a new trial to
determine a right that was not sought at the initial trial.
Edward’s response is that he did raise the issue at trial, and he points to two
places in the record, but we find neither was adequate to raise the issue at trial. First, he
points to his closing argument brief, where he argued that Mary was not entitled to
reimbursement. Second, he points to his oral closing argument where he made the same
contention. But, plainly, arguing Mary was not entitled to reimbursement is a far cry
12
from affirmatively seeking a remedy of reimbursement for himself. There was no error
in failing to provide a remedy that Edward did not ask for.
Spousal Support
Edward contends the court erred in denying spousal support because the
court did not separately analyze each factor under section 4320 and instead held there
was insufficient evidence for the court to even analyze the issue. We agree the court
erred.
Section 4320 provides, “In ordering spousal support under this part, the
court shall consider all of the following circumstances . . . .” It then lists 16
4
circumstances the court shall consider. “In ordering spousal support, the trial court must
4
“(a) The extent to which the earning capacity of each party is sufficient to
maintain the standard of living established during the marriage, taking into account all of
the following:
“(1) The marketable skills of the supported party; the job market for those skills; the time
and expenses required for the supported party to acquire the appropriate education or
training to develop those skills; and the possible need for retraining or education to
acquire other, more marketable skills or employment.
“(2) The extent to which the supported party’s present or future earning capacity is
impaired by periods of unemployment that were incurred during the marriage to permit
the supported party to devote time to domestic duties.
“(b) The extent to which the supported party contributed to the attainment of an
education, training, a career position, or a license by the supporting party.
“(c) The ability of the supporting party to pay spousal support, taking into account the
supporting party’s earning capacity, earned and unearned income, assets, and standard of
living.
“(d) The needs of each party based on the standard of living established during the
marriage.
“(e) The obligations and assets, including the separate property, of each party.
“(f) The duration of the marriage.
“(g) The ability of the supported party to engage in gainful employment without unduly
interfering with the interests of dependent children in the custody of the party.
“(h) The age and health of the parties.
“(i) Documented evidence, including a plea of nolo contendere, of any history of
domestic violence, as defined in Section 6211, between the parties or perpetrated by
13
consider and weigh all of the circumstances enumerated in the statute, to the extent they
are relevant to the case before it.” (In re Marriage of Cheriton (2001) 92 Cal. App. 4th
269, 302.) “‘“Furthermore, the court does not have discretion to ignore any relevant
circumstance enumerated in the statute. To the contrary, the trial judge must both
recognize and apply each applicable statutory factor in setting spousal support.
[Citations.] Failure to do so is reversible error.”’” (In re Marriage of Geraci (2006) 144
Cal. App. 4th 1278, 1297.) If the court properly considers the statutory factors, it has
broad discretion to deny spousal support or award it in any amount “that reflects the
ability of both parties in contemporary unions to provide for their own needs.” (In re
Marriage of Pendleton & Fireman (2000) 24 Cal. 4th 39, 52.) “‘A trial court’s exercise
of discretion will not be disturbed on appeal unless, as a matter of law, an abuse of
discretion is shown — i.e., where, considering all the relevant circumstances, the court
has “exceeded the bounds of reason” or it can “fairly be said” that no judge would
reasonably make the same order under the same circumstances.’” (In re Marriage of
Smith (1990) 225 Cal. App. 3d 469, 480.)
either party against either party’s child, including, but not limited to, consideration of
emotional distress resulting from domestic violence perpetrated against the supported
party by the supporting party, and consideration of any history of violence against the
supporting party by the supported party.
“(j) The immediate and specific tax consequences to each party.
“(k) The balance of the hardships to each party.
“(l) The goal that the supported party shall be self-supporting within a reasonable period
of time. Except in the case of a marriage of long duration as described in Section 4336, a
‘reasonable period of time’ for purposes of this section generally shall be one-half the
length of the marriage. However, nothing in this section is intended to limit the court’s
discretion to order support for a greater or lesser length of time, based on any of the other
factors listed in this section, Section 4336, and the circumstances of the parties.
“(m) The criminal conviction of an abusive spouse shall be considered in making a
reduction or elimination of a spousal support award in accordance with Section 4324.5 or
4325.
“(n) Any other factors the court determines are just and equitable.” (§ 4320.)
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Here, the court recognized it had a duty to enumerate the section 4320
factors, but it declined to do so on the ground that there was insufficient evidence to
establish the marital standard of living. We agree the evidence was not as robust as it
could have been, but it was not so paltry as to excuse the court from performing the
mandatory statutory analysis. There was evidence of both Mary’s and Edward’s earning
capacity and marketable skills. There was evidence of efforts Edward had made to find a
job. There was evidence that at least a portion of Edward’s unemployment was due to
performing work to assist with Mary’s business. There was evidence of family vacations,
an expensive wedding ring, and a valuable home. There was evidence of the age and
health of the parties. All of this evidence was relevant to multiple section 4320 factors.
On remand, Edward is entitled to a decision based upon the required statutory analysis.
Nothing about this opinion should be construed as limiting the court’s discretion about
whether to award spousal support, and, if so, in what amount.
Attorney Fees
The court denied Edward attorney fees on two grounds: the first, which we
already concluded was error above, was the court’s perceived inability to perform a
section 4320 analysis; the second was that the attorney’s description of his time spent on
this case was too vague to determine if it was reasonable. The latter ground was also
error.
Section 2030 provides: “(a)(1) In a proceeding for dissolution of
marriage . . . 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 . . . 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. [¶] (2)
When a request for attorney’s fees and costs is made, the court shall make findings on
15
whether an award of attorney’s 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’s fees and
costs.”
Section 2032 provides: “(a) The court may make an award of attorney’s
fees and costs under Section 2030 or 2031 where the making of the award, and the
amount of the award, are just and reasonable under the relative circumstances of the
respective parties. [¶] (b) 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.”
A fee award must not only be just, but also reasonable. “The major factors
to be considered by a court in fixing a reasonable attorney’s fee [are]: ‘the nature of the
litigation, its difficulty, the amount involved, the skill required and the skill employed in
handling the litigation, the attention given, the success of the attorney’s efforts, his
learning, his age, and his experience in the particular type of work demanded [citation];
the intricacies and importance of the litigation, the labor and the necessity for skilled
legal training and ability in trying the cause, and the time consumed.’” (In re Marriage
of Cueva (1978) 86 Cal. App. 3d 290, 296.) A court’s award of attorney fees is reviewed
for abuse of discretion. (In re Marriage of Keech (1999) 75 Cal. App. 4th 860, 866
(Keech).) The failure to assess the reasonableness of the requested attorney fees
constitutes an abuse of discretion. (Id. at p. 870.)
In support of the request for attorney fees, Edward’s attorney submitted a
declaration that contained the following:
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“[Edward] employed my services in August 2012. I am a family law
practitioner with over 20 years of legal experience. I am a graduate of Harvard
University and New York University School of Law.”
“From the time of my initial retainer with [Edward] and just prior to this
hearing date I have spent over forty (80) [sic] hours on this matter — preparing filings,
disclosures, meeting with my client, conducting and reviewing discovery, and preparing
and attending trial over three days. I expect to spend another eight (8) hours at a hearing
for request for orders regarding spousal support and attorneys fees, as well as the trial on
July 22, 2014 and preparing a judgment.”
“My hourly rate in this case is $300.00. I have billed the [Edward] total
fees to date of $6,000.00.” He ultimately requested a fee award of “at least
$10,000 . . . .”
After trial, Edward’s counsel submitted a supplemental declaration, stating,
“Based on the trial dates of July 22 and July 23, 2014 and the preparation for and
attendance at said trial, I have additional legal fees in this case as follows: ten hours
attending court on both dates, and eight hours of pretrial preparation and interim trial
preparation for a trial brief. I also expect another three hours of time on judgment and
post judgment matters. The total number of additional hours is therefore 21 hours, and at
my billing rate of $300/hr would total an additional $6,300.”
In denying fees, the judgment states, “There was no competent evidence
presented to the Court that demonstrates that the alleged fees incurred by [Edward] were
reasonable in this matter. Other than [Edward’s counsel’s] conclusionary [sic]
declaration, Mr. Chao simply failed to show any underlying proof of his requested claim,
e.g., receipts, bills, attorney time records, etc.” The court cited Keech, supra, 75
Cal. App. 4th 860.
However, Keech, supra, 75 Cal. 4th 860 does not require that an attorney
submit billing records to justify a fee award. In Keech the trial court awarded fees to the
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wife. In reversing (id. at p. 871), the Court of Appeal noted, “Wife did not, however,
submit 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. Wife’s only ‘evidence’ in this regard
was her declaration that: ‘By the most recent bill I received . . . I owe approximately
$31,000 to [counsel]’” (id. at p. 864, italics added). The basis of the reversal in Keech
was that “the court made no inquiry into whether the fees were, in the words of section
2030, ‘reasonably necessary.’” (Id. at p. 869.)
“In California, an attorney need not submit contemporaneous time records
in order to recover attorney fees . . . . [Citation.] Testimony of an attorney as to the
number of hours worked on a particular case is sufficient evidence to support an award of
attorney fees, even in the absence of detailed time records.” (Martino v. Denevi (1986)
182 Cal. App. 3d 553, 559.) Edward’s counsel’s declaration in this case was certainly not
ideal. His approach of lumping all the pretrial tasks together did not facilitate a thorough
review, but the practice of block billing does not preclude a fee award. It may, however,
justify a downward adjustment. (Jaramillo v. County of Orange (2011) 200 Cal. App. 4th
811, 830 [“block billing is not objectionable ‘per se,’ though it certainly does increase the
risk that the trial court, in a reasonable exercise of its discretion, will discount a fee
request”].)
The court here made essentially the same error as the trial court in Keech:
it never exercised its discretion to determine whether the fees incurred were reasonable.
At minimum, the court was perfectly capable of deciding whether the time spent in trial
was reasonable, and, given what the court knows about the complexity of the litigation
(or lack thereof), the court can determine whether the claimed pretrial hours were
reasonably spent as well.
Nothing about our disposition here, however, requires the court to award
fees on remand, or, if it does so, requires any particular amount. We hold only that the
court is required to perform the analysis contemplated by sections 2030 and 2032.
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DISPOSITION
The court’s judgment denying spousal support and attorney fees is reversed
and remanded to the trial court to perform the required statutory analysis as to spousal
support and attorney fees. In all other respects, the judgment is affirmed. The parties
shall bear their own costs on appeal.
IKOLA, J.
WE CONCUR:
O’LEARY, P. J.
FYBEL, J.
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