One somewhat unique factor of family law litigation is the way in which family law cases are financed. In the recent case of In re Marriage of Keech (1999) Daily Journal D.A.R. 10699, the Appellate Court reversed and remanded a trial judge based on an abuse of discretion as to the amount and the manner of payment of an award of attorney’s fees. Keech addresses the procedure and law on the issue of attorney’s fees awards clearly and head on.
In the Keech case, the matter involved a less than six year marriage. Husband was a physician. Wife was sporadically employed as a medical bookkeeper. The parties had two children, who at the time of the hearing were approximately 12 and 9.
Interestingly, although the parties had been separated for almost 5 years at the time of the relevant court ruling, the matter had still not proceeded to trial and judgment. The parties were operating under an existing temporary orders.
The husband filed a hearing requesting modification of child and spousal support. Wife responded by requesting an upward modification of spousal and child support and seeking attorney’s fees and accounting fees.
At the hearing, the court made a finding that husband’s pre-tax gross income was $5,405.00 per month. In support of her request for attorney’s fees and accounting fees, wife submitted a portion of an accountant bill authenticated by her accountant’s declaration. In addition there was an oral representation by wife’s counsel (who had only been in the case three months) that counsel was owed approximately $31,000.00.
Husband disputed the amount contending that wife’s request for attorney’s fees and expert fees were excessive and were essentially the result of wife changing attorneys in the middle of litigation. In addition, husband asserted that the majority of the fees charged by wife’s current counsel was a result of attempting to obtain the file from predecessor counsel, reviewing the file and obtaining continuances. In addition, husband’s counsel indicated that he had incurred over an entire 12 month period only $25,000.00 in fees.
At the hearing, husband was ordered to pay $1,468.00 per month in guideline child support and $800.00 per month in spousal support. In addition, as his “contributive share of wife’s accountant’s fees”, he was ordered to pay the sum of $3,200.00 at the rate of $1,000.00 per month and $25,000.00 contributive share of wife’s attorney’s fees and costs payable at the rate of $1000.00 per month, for a total of $4,268.00 per month. Husband filed a motion for reconsideration and the trial court reduced only the monthly payments to wife’s attorney to $500.00 per month. There were no other facts presented on the record as to how husband could pay the amounts ordered.
On appeal, the Appellate Court reversed and remanded. In very blunt and clear language the Court stated as follows at page 10702:
“The trial court’s decision here does not reflect consideration of husband’s ability to pay wife’s professional fees at the rate of $1,000 per month (or indeed at $500 per month), does not reflect consideration of the respective litigation needs of the parties, and does not reflect consideration of whether the fees allegedly incurred were reasonably necessary. According, we conclude that the court abused its discretion with respect to the fee award.”
In citing authority for the inappropriateness of size of the monthly payments, the Court cited In re Marriage of Schultze (1997) 60 Cal.App.4th 519, 70 Cal.Rptr. 2d 488. In Schultze, a trial court was reversed for ordering a $7,500.00 forthwith payment by husband toward wife’s attorney’s fees when the record showed no ability of husband to pay that amount on a forthwith basis. The trial court was instructed in the Schultze case to construct reasonable and “manageable installments consistent with the income he had left after he paid the family support order”. (See Schultze at page 531-532).
The next issue that the Appellate Court in Keech found barren of supportive facts was the amount of attorney’s fees that the trial court ordered. As the Court stated at page 10703,
“This case involves a relatively short marriage, with no substantial marital estate and no child custody dispute…Despite the relative dearth of issues and assets, the parties allegedly incurred at least $60,000.00 in attorney’s fees; $35,000.00 of which was allegedly incurred by wife over the course of roughly 3 months immediately prior to the hearing on the OSC. Yet the court ordered husband to pay $25,000.00 of wife’s fees on nothing more than wife’s second hand comment (albeit in a declaration) about what her latest bill stated, and on wife’s counsel’s unsworn representation that she was owed approximately $35,000.00.”
The controlling statutes for the award of attorney’s fees at any point pending the litigation in a family law case are Family Code Sections 2030 and 2032. These sections lay out the standard for fee award being essentially a test of need and ability underlaid by the reasonableness of the amount.
Statute and case law have evolved to encourage that there be an equality of litigating power between the two parties. As stated in the case of Droeger vs. Friedman, Sloan & Ross (1991) 54 Cal.3d 26; 283 Cal.Rptr. 584, at page 41, footnote 12 states:
“California public policy in favor of expeditious and final resolution in marital dissolution actions is best accomplished by providing at the outset of litigation, consistent with the financial circumstances of the parties, a parody between spouses in their ability to obtain effective legal representation.”
The Appellate Court felt that the trial judge should have inquired as to whether or not the fees incurred were “reasonable and necessary” as required under Family Code Section 2030. This issue was made more urgent by the fact that husband objected to the amount of the fees incurred in such a short period of representation.
The Appellate Court commented that despite husband’s own fees of $25,000.00, that alone was not probative but as the Keech opinion states on page 10703 it was merely “informed speculation that the Court decided to allow husband to pay at least as much for wife’s attorney as he did for his own. That is not the standard by which the Court was to determine the amount of the award.”
The Appellate Court goes on to cite In re Marriage of Cueva (1978) 86 Cal.App.3d 290, 149 Cal.Rptr. 918. Cueva provides a standard from which a trial court can determine the reasonableness of attorney’s fees. It lists, among other things, the complexity and difficulty of the litigation involved and the skill, experience and reputation of the attorney seeking the fee award. Cueva also provides that a Court when advised of the nature of the litigation and the services rendered may rely on its own experience in determining the reasonableness of the fee award. However, the Appellate Court in Keech pointed out on pages 10703-10704 that
“The Court here was not appraised of the nature and extent of the services rendered, so it could not determine the reasonable value based upon its own expertise…Neither the attorney for a party to a dissolution action nor the attorney’s client is entitled to recover, from the opposing spouse, a contributive share of whatever fee the attorney chooses to charge…the record on appeal as presently constituted is consistent with a relatively simply dissolution action, to which counsel either claims has devoted an inordinate amount of time or to have charged excessive rates or combination of the two, resulting in fee claims which at least facially appear out of proportion to the issues presented…”
Subsequent to Keech seeking fees in a family law matter requires a strict factual showing and compliances with the standard of the reasonableness and appropriateness of the fees, and the manner in which they will be paid. Fairness, absent supportive facts, will not alone justify a family law fee award.