Robert I. v. Alisa B. CA1/2 ( 2021 )

Filed 3/29/21 Robert I. v. Alisa B. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
ROBERT I.,
Plaintiff and Respondent,
A157943
v.
ALISA B., (Alameda County
Super. Ct. No. HF11598669)
Defendant;
LAURENCE B.,
Intervener and Appellant.
This is an appeal from attorney fees orders that were issued in
connection with a long-running and bitter dispute over the custody of A., a
minor (Minor). After a trial that extended for more than 10 days over several
months in 2018, the trial court denied a request by Minor’s maternal
grandfather, Laurence B. (Grandfather), for nonparent custody, and ordered
that Minor’s father, Robert I. (Father), would retain sole custody. The court
ordered Grandfather to pay attorney fees to Father’s counsel and to Minor’s
court-appointed counsel. Grandfather challenges the fee awards on appeal,
contending that the court’s orders were in violation of the applicable statutes
and represented an abuse of discretion. We conclude that Grandfather fails
to show error, and therefore we affirm.
1
FACTUAL AND PROCEDURAL BACKGROUND
The underlying matter began in October 2011, when Father,
representing himself, filed a petition to establish parental relationship as to
Minor, who was then three years old. According to the declaration filed with
the petition, Father and Minor’s mother, Alisa B. (Mother), had been together
in Los Angeles when they broke up and Mother returned to Grandfather’s in
northern California, taking Minor without asking or telling Father. Father
sought an award of joint custody and reasonable visitation.
A. Proceedings Through 2016, Including Appointment of Minor’s Counsel
The record before us includes very few documents from October 2011
through August 2013. Then there is nothing at all until a June 2016 order in
which the trial court on its own motion found that good cause existed to
appoint counsel for Minor under Family Code section 3150, subdivision (a),
appointed attorney Dean Feldman to represent Minor, and reserved
jurisdiction to determine his compensation.1
We draw our account of what happened after Father’s 2011 petition
was filed from information provided by the trial court in various orders and
in its 2018 statement of decision. After Father filed his petition, Father and
Mother litigated Father’s timeshare with the Minor and related issues for
two years. Father progressed from supervised visits to unsupervised visits
with supervised exchanges. In July 2013, the court ordered that Minor would
1 Subsequent statutory references are to the Family Code; references to
“rules” are to the California Rules of Court. Section 3150, subdivision (a)
authorizes the court to appoint private counsel to represent the interests of
the child in a custody or visitation proceeding if the court determines that it
would be in the best interest of the child to do so, provided that the court and
counsel comply with certain requirements set forth in rules 5.240, 5.241, and
5.242. Rule 5.240(b) authorizes the court to appoint counsel for the child on
the court’s own motion.
2
remain in Mother’s custody, but in early October 2013 Minor moved in with
Grandfather because Mother’s health had deteriorated. Later that month,
Minor moved in with a maternal uncle (Uncle) and his wife (Aunt). In
December 2013, Father filed a Request for Order seeking custody.
In 2014, after Mother’s counsel withdrew from the case, Grandfather
moved to intervene in the action. In November 2014, Grandfather and Uncle
were joined as parties. After a comprehensive child custody evaluation was
conducted, a trial on Father’s December 2013 request for custody was held in
2015. Father represented himself at trial, Mother did not appear, and
Grandfather and Uncle were represented by counsel.2 The result of the trial
was a January 6, 2016 order awarding custody to Uncle and Aunt.
During a visit with Father over winter break 2015-2016, Minor made
allegations of abuse against Uncle, and remained with Father until early
February 2016, when the court issued an order awarding sole custody to Aunt
and prohibiting Uncle from having contact with Minor.
In June 2016, the court appointed Feldman to represent Minor in
response to a Request for Order filed by Grandfather, who sought nonparent
custody for himself, and supervised visits for Father. As we shall explain, the
trial on Grandfather’s request for custody did not begin until March 2018.3
2 Grandfather and Uncle were represented by the same attorney.
According to the trial court, Grandfather “was not considered as a potential
custodial adult in the 2015 child custody evaluation. He declined the
evaluator’s request to participate in psychological testing; his wife was not
interviewed. His home was not visited by the evaluator. In fact, the
evaluator explicitly rejected him as a custodial guardian.” Uncle and Aunt
are not parties to this to this appeal.
3Grandfather’s Request for Order is not included in the record.
Grandfather attempted unsuccessfully to have Minor’s counsel removed less
than one month after the appointment.
3
Shortly after Feldman was appointed to represent Minor, the court
ordered Father and Grandfather to advance the costs for a supplemental
custody evaluation.
In July 2016, attorney John Larson substituted in as counsel for
Father. Later in the summer, the trial court granted a request made by
Minor’s counsel and awarded Father temporary custody of Minor pending the
supplemental custody evaluation that the court had previously ordered.
From summer 2016 through the 2018 trial, Minor resided with Father.4
In October 2016, the trial court continued the matter to mid-December
for receipt of the supplemental custody evaluation and trial setting. In
November 2016, attorney Larson substituted out as counsel for Father. The
court subsequently set trial to begin in March 2017.
B. Order to Show Cause as to Father’s Attorney Fees
On February 17, 2017, the court issued an order to show cause why it
should not order Grandfather to advance $10,000 in attorney fees to Father
under the provisions of the Uniform Parentage Act (§ 7600 et seq., UPA).5 In
4Minor had visits with Grandfather during the time he lived with
Father.
5 The court invoked section 7605, subdivisions (a) and (e). Section
7605, subdivision (a) states: “In any proceeding to establish physical or legal
custody of a child or a visitation order under this part . . . 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 . . . 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 (e) states that an application for a
temporary order making an award of attorney fees “shall be made by motion
on notice or by an order to show cause.” (Italics added.)
The court further stated that if it were to order fees to be advanced, it
would do so under the factors set out in section 7605, subdivision (b), which
4
the order, the court noted that the case was highly contentious, “with
repeated disagreements about [Minor’s] schedule and other matters. The
disparity between Father’s self-representation and Grandfather’s ability to
retain counsel has complicated the proceedings to date and made it difficult
for the court to both proceed in an orderly manner and to determine what is
in the best interest of [Minor].” Among the examples cited by the court were
unsupported allegations made by Grandfather, Grandfather’s failure to
cooperate with Minor’s counsel, and Grandfather’s delay in cooperating with
the beginning of the supplemental custody evaluation, which did not begin
until September, even though it had been ordered in June. The court also
expressed concern with the effect of Father’s lack of representation on the
content of the evaluation, explaining that Grandfather had noticed and taken
the deposition of the principal of the school Minor attended while in
Grandfather’s care, with the result that the principal and teacher refused to
participate in the supplemental custody evaluation, something the court
learned only when the evaluation was complete. Father received a copy of
the deposition notice, brought it to court and asked the court about it, but the
court could not give Father advice or answer his questions, and thought it
would be improper to object to the deposition taking place on its own motion.
states, “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. A
party who lacks the financial ability to hire an attorney may request, as an in
pro per litigant, that the court order the other party, if that other party has
the financial ability, to pay a reasonable amount to allow the unrepresented
party to retain an attorney in a timely manner before proceedings in the
matter go forward.”
5
The court observed that if Father had been represented, he could have
requested orders ensuring the participation of the principal in the evaluation,
which would have resulted in a more complete evaluation.
The court observed that “[l]opsided legal representation can effectively
deny the court access to all necessary information about the child’s wellbeing
and needs and thereby affect the court’s ability to order what is best for the
child.” The court set a briefing schedule, instructing Grandfather and any
parties opposing the proposed order to file and serve any opening brief and
supporting evidence, including an Income and Expense declaration, and a
declaration regarding fees and costs already incurred in the proceeding.
Father and any party supporting the order were to file an opposition brief
and supporting evidence, including an Income and Expense Declaration. A
hearing on the order to show cause was set for early March 2017, about two
weeks before the scheduled trial date.
Grandfather filed a memorandum of points and authorities in
opposition to the court’s proposed order, arguing that although Grandfather
had the ability to pay the amount in question, it was improper for the court to
order payment of fees in the absence of a request by Father, that Father had
no need of assistance to pay counsel, and that the order would result in delay
because the retention of new counsel for Father would lead to delay in the
trial. Despite the court’s order, Grandfather did not file an Income and
Expense Declaration, or a declaration as to the amounts he had spent on fees
and costs, but he did file a declaration stating that he had the financial
ability to pay the proposed $10,000. Grandfather’s counsel filed a declaration
stating that on February 24, 2017 (a week after the order to show cause was
filed) he had taken Father’s deposition, and recounted some of Father’s sworn
6
testimony regarding his income and assets.6 Grandfather’s counsel stated he
would have a transcript of the deposition testimony available for the court at
the time of the hearing. Father did not file a brief, or an Income and Expense
Declaration.
At the hearing on the order to show cause, Grandfather’s counsel
argued that before making an award of fees “you have to at least get a
financial statement from him under penalty of perjury so we can look at
that.” The trial court informed the parties that although it did not have
financial declarations from either party, it had information about Father’s
income and assets from the responsive papers that Grandfather had filed,
and it had considered that information. The court continued, “The law does
not require that a person have zero assets. And I didn’t find anything in the
information you obtained in the deposition to change the posture of this case
that [Father] does—nothing in what you had to say showed me that he has
the resources to actually adequately litigate this next phase of the case.”
Father informed the court that he planned to re-hire attorney Larson. The
court ordered Grandfather to advance $10,000 to Father’s attorney within 24
hours of receipt of a substitution of attorney and ordered Father to file and
6 According to the declaration, Father testified that he could earn over
$20 per hour if he chose to accept employment as a mason, but he had chosen
not to work and to pursue a business called “Rap Records.” Father claimed
that he had not generated any income from the business but had spent about
$20,000 in the past year to construct a recording studio, and currently had
between $10,000 and $40,000 in his bank account. Father also testified that
he had paid his former counsel, who had represented him in 2016, a retainer
of $5,000; that his children received government assistance; that his wife
earned $30,000 in 2016; and that rent from roommates covered the cost of the
mortgage on his home, rendering his housing costs minimal.
7
serve an Income and Expense Declaration on or before March 24.7 A
substitution of attorney was served on Grandfather on March 21, but
Grandfather failed to pay the required advance. According to Grandfather’s
opening brief on appeal, “the Court vacated the trial date in March 2017 until
[Grandfather] advanced $10,000 in fees to [Father], which he did,” yet
Grandfather provides no citation to the record, and does not disclose when
the advance was paid. In fact, Grandfather did not make the required
payment until October 2017. At trial, Grandfather testified that although he
had paid the $10,000 ordered by the court, he considered the issue of Father’s
attorney fees to be an unresolved issue.
C. Minor’s Counsel Requests Attorney Fees
Meanwhile, in March 2017, Minor’s counsel requested an order that
Grandfather pay him a retainer of $10,000 and compensate him at his
regular rate of $300 per hour. Grandfather opposed the request, and at a
hearing on the request in May 2017, counsel for Grandfather informed the
court that he needed to do further research as to whether Feldman’s fees
could properly be imposed on Grandfather. The court ordered Feldman to file
and serve his billing statements and ordered Grandfather to file legal
authorities as to the issue by the same date. The parties did so, and after
Feldman filed his billing statements, Grandfather filed an objection to the
request for fees. The issue of fees for Minor’s counsel remained pending until
the trial.
7In an order filed March 28, the trial court on its own motion vacated
the requirement that Father serve an Income and Expense Declaration,
“[w]hether or not he has already complied” with it. The Register of Actions
does not reflect any such declaration being filed.
8
D. Trial, Judgment, and Appeal
Litigation between the parties continued through 2017 and into 2018.
The trial began in March 2018, with the Honorable Thomas Nixon presiding,
and continued over multiple days, ending in September 2018. The trial court
identified the issues before it as follows: whether to grant Grandfather’s
request for an order providing him with custody of Minor; whether
Grandfather should be granted visitation if he was not awarded custody; and
attorney fees and costs.
The details of the trial are largely irrelevant to this appeal, except that
the record shows that counsel understood that issues of attorney fees would
likely be handled at the end of the case. Near the end of the trial Father’s
counsel requested an interim order for fees, and the court observed that
Feldman “as Family Code § 3150 attorney for the minor has . . . been billing
the court for services which under Family Code § 3153 should be borne by the
parties.”8 The court ordered the parties to file fee declarations and ordered
Income and Expense Declarations from parties except for Grandfather, “who
stipulated that he could pay any reasonable amount of fees, even into the
hundreds of thousands.”
Accordingly, in August 2018, Feldman submitted his billing records
and information about payments he had received from the court; Larson filed
8 Section 3153 provides, “(a) If the court appoints counsel under this
chapter to represent the child, counsel shall receive a reasonable sum for
compensation and expenses, the amount of which shall be determined by the
court. Except as provided in subdivision (b), this amount shall be paid by the
parties in the proportions the court deems just. [¶] (b) Upon its own motion
or that of a party, the court shall determine whether both parties together
are financially unable to pay all or a portion of the cost of counsel appointed
pursuant to this chapter, and the portion of the cost of that counsel which the
court finds the parties are unable to pay shall be paid by the county.”
9
a request for attorney fees and a supporting declaration signed by Father,
along with invoices and letters related to attorney fees; Father filed an
Income and Expense Declaration; and attorneys Ward and Eshoo, who
represented Grandfather, filed declarations regarding the fees they had billed
to Grandfather and the payments they had received.
Feldman sought about $132,000 in fees billed at his regular rate of
$300 per hour. As of March 2018, he had received about $16,000 in fees from
the court from his work on the matter.9
Father requested that Grandfather, who had paid $10,000 toward
attorney Larson’s fees in October 2017, pay an additional amount of about
$55,000 to cover $45,000 in charges that had been billed and $10,000 in
estimated future charges. Father claimed that his monthly income was about
$2,100, and he maintained that he had no ability to pay Larson’s fees.
As for Grandfather’s own attorneys, Ward had billed Grandfather
about $67,000 in fees and costs from March through August 2018 and had
been paid in full. Eshoo had billed Grandfather about $425,000 in fees and
costs from July 2016 through August 2018 and had been paid in full through
July 2018.
In an order issued in early September 2018, the court found that under
section 3153, a determination had to be made as to reasonable compensation
for Minor’s counsel, and that the court would consider ordering
reimbursement for funds already expended by the court in compensating
Minor’s counsel. The court further found that Father “is in need of an
9 Feldman informed the court that for his work on cases for which he
was appointed from August 2014 through July 2016, he received from the
court a flat fee based on the number of active cases, and that since June 2016
his flat fee in those cases had been $2,000 a month.
10
interim order of fees to continue to prosecute this case to completion,” and
that Grandfather had the ability to pay fees. The court ordered Grandfather
to pay Father’s counsel an additional $25,000 within eight days, stating that
the order was an interim order and that a further order, as well as the
question of compensation for Minor’s counsel, would be considered at a
hearing later that month.
At the hearing, the court set a schedule for the parties to submit closing
briefs, to include argument regarding attorney fees. And the same day as the
hearing, Feldman and Larson submitted supplemental information about the
fees they had incurred and the payments they had received. Feldman stated
that the invoices for his work on the case through September 16, billed at his
regular rate of $300 per hour, totaled $137,010, and that he had received
about $17,360 for fees from the court for the period through July 2018.
Larson stated through September 17 Father owed $29,180 in attorney fees,
which reflected the receipt of a check from Grandfather for $25,000, and he
estimated that an additional $2,300 would be incurred to prepare a written
closing statement.
In December 2018 the trial court issued a 35-page statement of decision
in which it denied Grandfather’s request for nonparent custody and
determined that custody of Minor would remain with Father. Eleven pages
of the decision were dedicated to the issue of attorney fees. The court
determined that Grandfather was to pay Father’s attorney fees of $31,820.
In addition, Grandfather was to pay Minor’s attorney fees of $137,010, and
within 15 days of receipt of that payment, Minor’s attorney was to reimburse
the court for any amounts he had received from the court for his services in
the case.
11
Judgment was entered, and Grandfather timely appealed, challenging
only the attorney fees orders.
DISCUSSION
A. Principles of Appellate Review
We begin by summarizing some of the fundamental principles that
guide our consideration of the issues before us.
As a general matter, “[w]e presume an attorney fee award is correct
unless the appellant demonstrates the trial court abused its discretion.”
(Taylor v. County of Los Angeles (2020) 50 Cal.App.5th 205, 209.) However,
we review de novo the determination of whether the trial court had the
statutory authority to make a fee award. (George v. Shams-Shirazi (2020) 45
Cal.App.5th 134, 138 (George).) Even under de novo review, it is the
appellant’s responsibility to affirmatively demonstrate error (Denham v.
Superior Court (1970) 2 Cal.3d 557, 564), and our review is limited to issues
which the appellant has adequately raised and supported. (Mark Tanner
Construction, Inc. v. Hub International Insurance Services (2014) 224
Cal.App.4th 574, 584.) “We are not required to examine undeveloped claims
or supply arguments for the litigants.” (Allen v. City of Sacramento (2015)
234 Cal.App.4th 41, 52 (Allen).) Accordingly, claims that are not supported
with meaningful argument and citations to authority are appropriately
treated as forfeited. (Ibid.) “In addition, citing cases without any discussion
of their application to the present case results in forfeiture.” (Ibid.)
An appellant must “cite the particular portion of the record supporting
each assertion made.” (Williams v. Williams (1971) 14 Cal.App.3d 560, 565.)
We disregard assertions and arguments that lack record references. (Duarte
v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856 (Duarte).)
12
Moreover, “ ‘[i]t is fundamental that a reviewing court will ordinarily
not consider claims made for the first time on appeal which could have been
but were not presented to the trial court.’ . . . ‘Generally, issues raised for the
first time on appeal which were not litigated in the trial court are waived.
[Citations.]’ ” (Newton v. Clemons (2003) 110 Cal.App.4th 1, 11, fn. omitted
(Newton).)
B. Challenge to Father’s Fee Award
Grandfather argues that the trial court lacked authority to order him to
advance $10,000 in fees in 2017, because Father failed to request fees and
failed to file a current Income and Expense Declaration. Grandfather further
argues that because the Income and Expense Declaration that Father filed in
August 2018 was deficient, the trial court necessarily failed to consider the
necessary statutory factors in its subsequent award of fees to Father and
thereby abused its discretion.10 The arguments lack merit.
1. Order to Advance $10,000 in Fees
We review de novo Grandfather’s argument that the court lacked
authority to order him to advance $10,000 to Father’s attorney for fees in the
absence of a request from Father and in the absence of a current Income and
Expense Declaration. (George, supra, 45 Cal.App.5th at p. 138.)
Grandfather fails to persuade us that the trial court erred in ordering
the payment of fees, because Grandfather offers no authority to support his
implicit claim that the trial court could not properly award fees to Father
after issuing an order to show cause. (Allen, supra, 234 Cal.App.4th at p. 52.)
10Neither Father nor his counsel filed a responsive brief in this appeal.
Accordingly, we decide the appeal as to Father’s attorney fees based on the
record, Grandfather’s opening brief, and Grandfather’s oral argument before
this court. (Rule 8.220(a)(2).)
13
The trial court’s order rested on the UPA. Specifically, the court relied on the
statutory requirement that the court “ensure that each party has access to
legal representation to preserve each party’s rights” by ordering one party to
pay another party’s attorney fees, if that is necessary, based on an
assessment of income and needs (§ 7605, subd. (a)) and on the provision
allowing the use of an order to show cause procedure to award fees. (§ 7605,
subd. (e).) But Grandfather makes no reference to the UPA at all, except for
his concession that the court has discretion to award attorney fees in a
parentage action.
To support his contention that the trial court could not award fees in
the absence of a Request for Order from Father, Grandfather relies on
Mooney v. Superior Court (2016) 245 Cal.App.4th 523, but his reliance is
misplaced. First, Mooney was not decided under the UPA; it was decided
under section 2032, which applies to proceedings for dissolution of marriage
(ibid.), and although Grandfather provides a quotation from Mooney, he does
not discuss the case or explain why it should apply to an order under section
7605. Second, although section 2031, subdivision (a)(1), like section 7605,
subdivision (e), allows for the use of the order to show cause proceeding in
connection with an award of attorney fees, the trial court in Mooney (unlike
the court here) did not issue an order to show cause. (See id. at pp. 528-529.)
Instead, the trial court in Mooney simply announced, sua sponte, at a hearing
on wife’s motion for settled statement, that it was going to order wife to pay
husband’s attorney fees in connection with the settled statement, thus
linking its decision on wife’s motion with a decision on attorney fees in
violation of the rules governing the preparation of settled statements. (Id. at
pp. 528, 534-535.) Third, the absence of a motion by a party seeking attorney
fees was not the only reason that the trial court’s fee award was reversed.
14
The Court of Appeal noted that the trial court failed to make statutorily
required findings as to a disparity in the parties’ ability to pay fees, and also
that the trial court based the award on irrelevant considerations. (Id. at pp.
536-537.)
Grandfather relies on rule 5.92(b)(2) in contending that the trial court
could not award fees in the absence of an Income and Expense Declaration.
But that rule by its terms concerns the requirements of a Request for Order
concerning attorney fees. Grandfather provides no argument or authority to
support his implicit contention that the rule applies in the context of an order
to show cause, and we will not supply an argument for him. (See Allen,
supra, 234 Cal.App.4th at p. 52.) In any event, section 7605, subdivision (a)
requires the trial court to consider income and needs assessments, and the
trial court did that here. Although the court did not have an Income and
Expense Declaration from Father, or from Grandfather for that matter, the
court had Grandfather’s declaration stating that he had the ability to pay
$10,000 in Father’s fees, and that he had borne the cost of Minor’s
transportation to and from the Bay Area for visits since July 2016 and had
paid for all of Minor’s medical care and treatment without contribution from
Father. The court also had Grandfather’s counsel’s declaration recounting
Father’s sworn testimony regarding his income and assets, and an offer to
provide a transcript of the testimony. The court stated that it considered the
information before it and concluded that Father did not have the resources to
adequately litigate the next phase of the case.
In these circumstances, Grandfather has not shown legal error by the
trial court in ordering the payment of a $10,000 advance toward Father’s
attorney fees.
15
2. Order to Pay $31,820 in Attorney Fees
Grandfather argues that the fee request filed by Father at the
conclusion of the trial did not comply with statutory requirements because
Father’s Income and Expense Declaration was deficient, in violation of rule
5.92(b)(2). That rule requires a party seeking fees to “complete” a current
Income and Expense Declaration that includes “the documents specified in
the [Income and Expense Declaration] form . . . that demonstrate the party’s
income.” (Rule 5.92(b)(2)(A) and (B).) Here, Father filed and served an
Income and Expense Declaration, signed on the day of filing under penalty of
perjury, along with his most recent state and federal income tax returns with
supporting schedules. Grandfather cites no authority to suggest that it is a
legal error for a trial court to award attorney fees in the absence of a perfect
Income and Expense Declaration, and we are not prepared to make such a
determination.
Grandfather also argues that the flaws in Father’s Income and Expense
Declaration, including inconsistencies between the information in the
Declaration and Father’s testimony at trial, prevented the trial court from
exercising its discretion and considering the necessary statutory factors. This
argument is meritless. Grandfather fails to identify any statutory factor that
the court could not or did not consider. The trial court considered
Grandfather’s objections to Father’s Income and Expense Declaration, and
exercised its discretion, as reflected in its detailed Statement of Decision:
“While it is true [Father’s] Income and Expense Declaration is not a study in
specificity, it cannot seriously be argued that he is a man of means even
remotely nearing middle class, much less the wealth available to
[Grandfather]. To a large extent, [Grandfather’s] insistence on seeking
custody pushed this litigation. He had every right to do so and the Court
16
does not fault him for it, but [Father’s] fees were largely incurred because of
[Grandfather’s] actions. The purpose behind an award of attorney’s fees is to
level the playing field and insure that each party has access to legal
representation. (See FC § 7605(a)).” The court identified the findings
required by section 7605, subdivision (b), made those findings, explained the
basis for those findings, and awarded Father $31,820 in attorney fees, in
addition to the amount already ordered. Grandfather has not shown any
abuse of discretion in the trial court’s ruling.11
C. Challenge to Minor’s Fee Award
Grandfather argues that the trial court acted in excess of its
jurisdiction by awarding attorney fees to minor’s counsel without complying
with statutory requirements. We review this argument de novo and find it
unpersuasive.
11 Grandfather contends in passing, and without citing any authority,
that Father’s filing of the Income and Expense Declaration on August 30,
2018 “did not provide [Grandfather] a reasonable opportunity to respond
prior to the Court’s issuing its attorney fee order less than a week later,”
apparently referring to the trial court’s interim order, filed on September 5,
that Grandfather pay $25,000 in attorney fees beyond the $10,000 that was
paid in 2017. This is not appropriate appellate argument, because it lacks
citations to authority and because, though it is presented under a heading
stating that Father failed to comply with the statutory requirements for an
attorney fee request, Grandfather does not identify any statute requiring that
an opposing party receive at least a week to respond to a request for fees. In
any event, because we conclude that the court did not err in issuing its
ultimate fee award to Father, which took account of the previously-paid
$25,000, Grandfather cannot show that he was prejudiced by the September
2018 order to pay $25,000. (In re Marriage of Falcone & Fyke (2008) 164
Cal.App.4th 814, 823 [error not reversible absent a showing that it is
“reasonably probable that, absent the error, the appellant would have
obtained a more favorable result”].)
17
The Rules of Court require the trial court to “determine the reasonable
sum for compensation and expenses for counsel appointed to represent the
child in a family law proceeding, and the ability of the parties to pay all or a
portion of counsel’s compensation and expenses.” (Rule 5.241(a).)
Compensation must be set at the time of appointment, at the time the court
determines the parties’ ability to pay, or “[w]ithin a reasonable time after
appointment.” (Rule 5.241(a)(1).) Further, the court “should determine the
parties’ ability to pay” at the time counsel is appointed, within 30 days after
appointment, or at the “next subsequent hearing.” (Rule 5.241(b)(2).)
Grandfather claims the trial court erred by waiting until 2018 to determine
the compensation for Minor’s counsel and the parties’ ability to pay that
compensation.
Minor’s counsel was appointed in 2016, at which time the trial court
reserved jurisdiction to determine his compensation. In 2017, Minor’s
counsel filed his request for an order that Grandfather compensate him at his
regular rate of $300 per hour, and the issue was not resolved until the 2018
trial. Certainly it would have been better if reasonable compensation for
Minor’s counsel had been determined sooner, as the trial court itself
recognized. The trial court acts within rule 5.241 if it determines the
compensation for Minor’s counsel at the time it determines the parties’ ability
to pay. (Rule 5.241(a)(1)(B).) Here, the trial court found that the first
determination of the parties’ ability to pay Minor’s counsel was its Statement
of Decision, and Grandfather does not contest that finding. The
determination of compensation for Minor’s counsel was made at the same
time, in the same document. Although the determination of the parties’
ability to pay “should” be made soon after the appointment of Minor’s counsel
(rule 5.241.(b)(2)), Grandfather cites no authority to suggest that it is
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necessarily legal error for the trial court to make that determination at a
later time.
Grandfather further claims that the trial court erred by failing to
analyze the parties’ financial circumstances in making the award. The
compensation of Minor’s appointed counsel is to be paid “by the parties in the
proportions the court deems just.” (§ 3153, subd. (a).) Rule 5.241(b) requires
the trial court to determine the respective ability of the parties to pay all or a
portion of appointed counsel’s compensation, taking into consideration
“factors such as the parties’ income and assets reasonably available at the
time of the determination” (rule 5.241(b)(1)(A)), and states that the parties
must have on file a current Income and Expense Declaration. (Rule
5.241(b)(1)(B).) Grandfather argues that because the trial court did not have
a “full and complete Income and Expense Declaration[]” from Father, it could
not analyze Father’s financial circumstances, and therefore could not
determine the parties’ respective ability to pay. This argument rests on a
premise that we have rejected, specifically, that Father’s Income and Expense
Declaration was so deficient as to preclude the court from performing the
required analysis. The same analysis that supported the trial court’s order
that Grandfather should pay the fees of Father’s counsel, supports the order
that Grandfather should pay the considerably higher fees of Minor’s
counsel.12
12Grandfather’s briefs are notably silent as to the following pertinent
facts: Grandfather himself never filed an Income and Expense Declaration;
Grandfather stipulated that he could pay any reasonable amount of fees,
even into the hundreds of thousands of dollars; and Grandfather had
incurred and paid hundreds of thousands of dollars of his own attorney fees
in the matter.
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We briefly address and reject Grandfather’s additional arguments as to
the award of attorney fees to Minor’s counsel.
First, Grandfather argues that he was prejudiced by the trial court’s
failure to comply with rule 5.241. We have concluded that Grandfather failed
to show error in the trial court’s compliance with rule 5.241. Even if he had
shown error, he could not demonstrate prejudice, because he provides no
citations to the record to support the vague factual assertions on which his
claims of prejudice are based.
Second, Grandfather argues that because Minor’s counsel performed
his services pursuant to a contract with the County of Alameda and was paid
pursuant to that contract, the trial court abused its discretion in ordering
Grandfather to pay Minor’s counsel’s fees. We deem this argument forfeited,
because the purported facts on which it rests are not supported by any
citations to the record (Duarte, supra, 72 Cal.App.4th at p. 856), and because
Grandfather offers no explanation of how the sole legal authority he cites
might apply to the case before us. (Allen, supra, 234 Cal.App.4th at p. 52.)
Third, Grandfather argues that the trial court abused its discretion by
making an award of fees without evaluating the reasonableness of the
request. This argument is forfeited, because, as with the previous argument,
the purported facts on which it rests are not supported by any citations to the
record. (Duarte, supra, 72 Cal.App.4th at p. 856.) Further, the argument is
forfeited because it was not raised below. (Newton, supra, 110 Cal.App.4th at
p. 11.)
DISPOSITION
The challenged orders are affirmed. Respondents shall recover costs on
appeal.
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_________________________
Miller J.
WE CONCUR:
_________________________
Kline, P.J.
_________________________
Richman, J.
A157943, Robert I. v. Alisa B.
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