Marriage of Bailey and Nation
Filed 1/14/13 Marriage of Bailey and Nation CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re Marriage
of ADRIAN BAILEY and REBECCA NATION.
B236851
(Los Angeles County
Super. Ct. No. SD025781)
ADRIAN BAILEY,
Respondent,
v.
REBECCA
NATION,
Appellant.
APPEAL from an order of the Superior
Court of Los
Angeles County. David J. Cowan,
Commissioner. Reversed.
Friedman &
Friedman, Ira M. Friedman and Gail S. Green for Appellant.
Adrian Bailey, in pro. per., for Respondent.
* * * * * *
We reverse an attorney fee award made pursuant to Family
Code section 2030 (section 2030) because there was no evidence the party
ordered to pay the fees – appellant Rebecca Nation – had the ability to pay
them. Although there was evidence that
Nation’s mother, a nonparty, had the ability to pay, Nation’s mother could not
be ordered under section 2030 to finance her ex-son-in-law’s
litigation.
Nation and respondent Adrian Bailey
were divorced in Connecticut in 2007.
have one child. Under the terms of the
divorce decree, Bailey was required to pay Nation a minimum of $3,500 monthly
in spousal and child support.
In July 2009, Bailey stopped making
payments, and Nation represents that he is in arrears over $90,000, although
the amount has not been adjudicated.
Bailey’s August 2011 income and expense declaration indicated that he
had no income and his expenses totaled $2,360 a month. Bailey acknowledged working as a computer
software programmer for 26 years, but stated that in the last few years his
income deteriorated as a result of the economic crisis. Bailey lives with his long-term partner, pays
no rent, and drives his partner’s vehicle.
Like Bailey, Nation also claimed to
be unemployed and have no income except in May 2009 when she had a one-month
job. Her August 2011 income and expense
declaration showed no income and monthly expenses of $6,073, paid by
others. Her income and expense
declaration indicated she owed her mother $230,000 for legal expenses and
$173,098 for living expenses.
The parties estimated each other’s
income differently from that reported on their income and expense
declarations. Nation estimated Bailey’s
monthly income at $23,000. Bailey estimated
Nation’s monthly income at $30,000.
Bailey’s estimate was based on his belief that Nation’s family was
wealthy, Nation lived a “lavish†lifestyle, and the fact that Nation had paid
off debt incurred during their marriage.
On June 6, 2011, Bailey sought a new
child support order and fees to retain counsel.
Bailey claimed fees were necessary for him to discover Nation’s
financial status. Following a hearing,
the trial court ordered Nation to pay Bailey’s attorney fees “in the initial
sum of $10,000.†Nation appealed from the
order.
Section 2030, subdivision (a)
provides:
“(1) In a proceeding
for dissolution of marriage, nullity of marriage, or legal separation of the
parties, and in any proceeding subsequent to entry of a related judgment, 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,
except a governmental entity, 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.
“(2) When a request
for attorney’s fees and costs is made, the court shall make findings on 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. 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.†(Italics added.)
The public policy underlying section
2030 is to “‘“level[] the playing field†and permit[] the lower-earning spouse
to pay counsel and experts to litigate the issues in the same manner as the
spouse with higher earnings.’
[Citation.]†(In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1315.) A trial court “‘“must consider the respective
incomes and needs of the parties, including all evidence concerning income,
assets, and abilities, in exercising its discretion to award attorney’s
fees. [Citations.]â€â€™â€ (In
re Marriage of Hobdy (2004) 123 Cal.App.4th
360, 371.) The trial court has
discretion in awarding attorney fees under section 2030. (In
re Marriage of Tharp, supra, at pp. 1313-1314.)
We review the trial court’s order for abuse of discretion. (In re
Marriage of Sorge (2012) 202 Cal.App.4th 626, 662.)
It cannot reasonably be disputed
that there is a disparity in access to funds to retain counsel. Bailey argues that Nation’s ongoing
representation by counsel demonstrates her access to funds and we agree. Bailey also argues that Nation’s income and
expense declaration shows that her mother “has paid all of [Nation’s]
attorney’s fees†and we agree. Whereas
Bailey has represented himself in this proceeding, Nation consistently has been
represented by counsel. In fashioning
its order, the trial court appropriately relied on Nation’s continued
representation as evidence of a disparity in access to funds.
But section 2030 requires not only a
disparity in access to funds, but also evidence that one party is able to pay
for legal representation of both parties.
Section 2030, subdivision (b) provides:
“the court shall make findings on 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.†(Italics added.) Thus, under the plain language of the
statute, in addition to determining that there was a disparity in access to
funds, the court was required to consider whether Nation was able to pay for
the legal representation of both parties.
Here, there was no evidence Nation
was able to pay for her attorney fees or Bailey’s attorney fees. Nation’s 2011 income and expense declaration
indicated that she had no income.
No evidence contradicted her income and expense declaration. No evidence demonstrates Nation was given a
recurring monetary benefit, which under certain circumstances may be deemed
income. (In re Marriage of Alter (2009) 171 Cal.App.4th 718, 737 [holding that periodic,
regular payments made over a decade could be considered in calculating the
child support a father owed].) Because
no evidence supported a finding that Nation was able to pay for the legal
representation of both parties, the trial court erred in ordering Nation to pay
Bailey’s attorney fees.
The undisputed evidence that
Nation’s mother funded her attorneys does not support the trial court’s order
awarding Bailey attorney fees. Nation’s
mother is not a party to this action and cannot be forced to pay for Bailey’s
attorney fees. Generally, “[p]arents are
not obligated to pay the costs of their children’s divorces.†(In
re Marriage of Schulze
(1997) 60 Cal.App.4th 519, 532.) There
is an exception for a grandparent who is a party to the lawsuit. (In
re Marriage of Perry (1998)
61 Cal.App.4th 295, 310-311 [ordering grandmother who became party to pay other
side’s attorney fees]; see also § 2030, subd. (d) [nonspouse party may be
ordered to pay fees in an amount necessary to maintain or defend the action “on
the issues relating to that partyâ€].)
But Nation’s mother was not a party to the lawsuit, and therefore could
not be ordered to pay Bailey’s fees.
Citing In re Marriage of Hofer (2012) 208 Cal.App.4th 454, Bailey argues
that Nation forfeited the right to appeal the attorney fee award because she
“did not report the amount paid to . . . counsel in fees.†We disagree.
In Hofer, the husband who
“chose not to disclose evidence of his financial circumstances despite three
separate discovery orders and sanctions†was “disentitle[d]†to appeal from the
attorney fee award. (
court’s discovery orders “precluded the trial court from considering the very evidence
[husband] claims is necessary to support the attorney fee award.†(Id.
at p. 458.) The disentitlement doctrine
is premised on a refusal to obey a superior court order. (Id.
at p. 459.) Here, Nation was not in
violation of any court order and the disentitlement doctrine is inapplicable.
DISPOSITION
The
order requiring Nation to pay Bailey $10,000 in attorney fees is reversed. Each party shall bear his or her own
FLIER, J.
We concur:
BIGELOW, P. J.
RUBIN, J.
registered as a California judgment.
title="">[2]
we conclude the order must be reversed, we need not consider Nation’s argument
that the court erred in failing to consider her evidentiary objections.
