The Uniqueness of Family Law Attorney Fees - In Re Marriage of Hobdy

The uniqueness of family law attorney fees was discussed in the recent case of In re Marriage of Hobdy, 2004 DJDAR 12913 (Oct. 21, 2004) indicating the difference between the civil law motion for reconsideration requirements and request for attorney fees in family law cases.

On July 12, 2002, Waymon Hobdy filed a petition for dissolution of marriage. On July 25, 2002, he filed a request to enter the wife’s default. This request was granted. On Sept. 6, 2002, Norma Patricia Hobdy filed a motion to set aside the default and requested, among other things, attorney fees. The court granted the request to set aside the default but denied the wifes request for attorneys fees.

On the same day that the courts ruling was made, Norma Hobdy filed an order to show cause for child custody, visitation and spousal support and again sought attorney fees. Waymon Hobdy opposed his wife’s request for attorney fees on grounds that the only way for a wife to request attorney fees in an action, after same has been denied, was pursuant to a motion for reconsideration. Code of Civil Procedure Section 1008.

Waymond Hobdy contended that such a reconsideration motion must be brought within 10 days after service of the notice of entry of the order and based on new facts. Code of Civil Procedure Section 1008(b) provides that a party who originally made an application for an order which was refused in whole or in part . . . may make a subsequent application for the same order upon new or different facts, circumstances or law, in which case it shall be shown by affidavit what application was made before, when and to what judge.

The trial court disagreed and ordered Waymon Hobdy to pay for his wifes attorneys. Waymon Hobdy appealed and the appellate court affirmed the trial court.

The appellate court found that not all of the Code of Civil Procedure had been incorporated into the Family Code. In the courts analysis, Family Code Section 2030 presented a different method for seeking reconsideration of attorney fee orders in family law cases.

In contrasting the two sections, the court stated on Page 12915:

Sections 1008 and 2003 are at odds with each other in several respects … The latter permits an award of attorneys fees to be augmented or modified from time to time. The only reasonable interpretation of the from to time language is that application to augment or modify an attorney fee award in a family law matter may be brought at any time, not just within 10 days of the original order.

Additionally … a Section 2030 application may be made if fees are reasonably necessary for the prosecution or defense of the proceeding or any proceeding related thereto … A moving party need not show changed events.

The court noted that a facet of statutory construction is that statutes superficially in seeming conflict can be reconciled by giving effect to the statute that is more specific and ignoring the more general statute. The court found that Section 2030 was narrowly tailored to apply only to attorneys fee orders and only in family law matters.

Section 1008, the court pointed out, has limitations as to its application in other areas of law, specifically certain criminal and dependency cases.

Since these subjects were not expressly addressed in Section 1008, the court stated, [w]e thus conclude that Section 2030, being more specific, applies to the present situation to the exclusion of Section 1008.

Family Code Section 2030 provides that the court may from time to time and before entering a judgment . . . augment or modify the original award of attorneys fees and costs. The language of from time to time is absent from paragraph (c) of the code, which provides for attorney fees and costs reasonably necessary to maintain or defend any subsequent proceeding.

The awarding of attorney fees in family law cases was intended to correct the evils and hardships of arbitrarily tying the payment of legitimate attorney fees and costs to the time of application therefor, thereby precluding the inability of indigent domestic case litigants to obtain payment for necessary past professional services of counsel prior to an order therefor, without a stipulation waiving the prior order. (Marriage of Seaman & Menjou, 1 Cal.App.4th 1489 (1991).)

A family law court may from time to time and before entry of judgment, augment or modify the original award for attorney fees. Family Code Section 2030(c) does make a distinction in post-judgment matters. After entry of judgment, the language of from time to time is absent from the statute. The code provides for fees and costs necessary to maintain or defend any subsequent proceeding. So is the matter still pending?

The recent case of In re Marriage of Kreiss, 2004 DJDAR 12166 (Sept. 9, 2004) examines the term pendency of the action. The Kreiss case was a child custody matter that dealt with a pre-judgment waiver of psychiatric privilege. Prior to the judgment, the parties were going to partake of a psychiatric Evidence Code Section 730 evaluation regarding custody.

In connection with that evaluation, the mother in the case had stipulated to release her psychiatric records through the pendency of this action. A year after the entry of judgment, another custody and visitation matter arose.

At that time, the father contended that the pre-judgment waiver made by the mother over release of her psychiatric records was still in effect. The father sought the records. The mothers contention was that waiver was only in connection with the pendency of the action which had been concluded by way of a judgment.

The appellate court found in favor of the father by determining that, as long as the children are minors and still subject to the courts jurisdiction, the matter remains pending, as does the waiver.

This same reasoning applies to the issue of attorney fees. The court continues to have jurisdiction  over child support as long as the children are still eligible for same. Further, with spousal support the court retains jurisdiction if same is ordered, and related attorney fees would be before the court.

Unlike most other areas of civil law a final order or judgment in a family law case is not necessarily closure.

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