Filed 10/22/26 Marriage of Michael and Sara W. CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 THREE
In re Marriage of Michael and Sara
W.
Michael W.,
Respondent,
A174495
v.
Sara W., (City & County of San Francisco
Super. Ct. No. FDI22796921)
Appellant.
Sara W.,
Plaintiff and Appellant,
v. (City & County of San Francisco
Michael W., Super. Ct. No. FDV23817280)
Defendant and Respondent.
MEMORANDUM OPINION1
Sara W. (Wife) unsuccessfully petitioned for a domestic violence
restraining order (DVRO) against her ex-husband, Michael W. (Husband).
Husband requested attorney’s fees and costs as the prevailing respondent
1 We resolve this case by a memorandum opinion pursuant to
California Standards of Judicial Administration, section 8.1. (See also People
v. Garcia (2002) 97 Cal.App.4th 847, 853–855.)
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under Family Code section 6344, subdivision (b). That section vests trial
courts with the discretion to award fees and costs to a prevailing respondent,
but “only if the respondent establishes by a preponderance of the evidence
that the petition or request is frivolous or solely intended to abuse,
intimidate, or cause unnecessary delay.” (Fam. Code, § 6344, subd. (b); all
undesignated statutory references are to this code.) The superior court found
Husband had not met his burden under this standard, but it nevertheless
awarded him $20,000 in attorney’s fees and costs. Because the superior court
lacked authority to award fees under section 6344, subdivision (b) where the
statutory criteria were not met and it identified no other statutory basis for
the fee award, we reverse.
Wife and Husband married in 2017 and have one minor child together.
By August 2022, the relationship had deteriorated; Wife and Husband were
sleeping in separate rooms and Husband knew Wife was in a relationship
with another man. There was a physical altercation between Wife and
Husband on August 17, 2022; Wife testified the incident occurred when she
tried to enter the primary bedroom, which Husband occupied, to get clothes
from the room as she was getting ready for work. She testified Husband
slammed the bedroom door on her arm twice and then threw her to the
ground, causing bruises. Wife called 911, and police arrested Husband, but
no charges were filed.
The marriage was dissolved in November 2023. On December 6, 7, and
9, 2023, Husband made a series of public Facebook posts in which he revealed
Wife’s affair, called her a narcissist, accused her of “neglecting her child for
shopping,” and threatened to “unleash the storm and dive into tearing [Wife]
apart.” The posts also accused Wife of being “plagued by psychological
issues” and posted portions of a confidential Child Protective Services report
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about their minor child, which Husband said showed Wife had falsely accused
Husband of child abuse. In the posts, Husband used Wife’s maiden name,
which also is the name she uses in her public-facing profession.
After Husband ignored Wife’s request to remove the December 6 post,
Wife petitioned for a DVRO on December 8, 2023, alleging the Facebook posts
were harassment and citing the August 2022 physical altercation. The court
granted a temporary DVRO (DVTRO) that, among other things, specifically
barred Husband from posting or disseminating materials about Wife under
any of her names. The DVTRO also restrained Husband from traveling with
the minor child outside the nine Bay Area counties without Wife’s written
permission or prior court approval.
During the minor child’s 2024 spring break, Husband took the child to
Southern California and Arizona, allegedly without Wife’s knowledge or
consent. Wife feared Husband would take the child to live in Houston, so she
contacted police and sought ex parte judicial relief. The superior court
ordered the immediate return of the child to Wife’s custody and imposed
further travel restrictions, barring Husband from leaving San Francisco with
the child.
Between April 30 and August 23, 2024, the superior court held five
half-day hearings on Wife’s DVRO petition. Wife testified about the August
2022 altercation, as well as the Facebook posts’ effect on her mental health.
Husband refused to testify, invoking his Fifth Amendment privilege against
self-incrimination because the statute of limitations on potential charges
stemming from the August 2022 incident had not yet run. Because he
asserted this right, the court stated it would strike his written oppositions to
Wife’s DVRO petition from the record.
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On October 2, 2024, the superior court issued a proposed statement of
decision denying Wife’s DVRO petition. On November 27, 2024, the superior
court issued a final statement of decision denying Wife’s DVRO petition. The
court found insufficient evidence that Husband disturbed Wife’s peace or
engaged in coercive control. The court also found Wife made two significant
exaggerations in her report to the police related to the August 2022 incident.
As to the Facebook posts, the court found Wife’s testimony that she was
“distraught and upset” about Husband’s Facebook posts to be “credible and
persuasive,” but also found Husband’s posts were those of “a father and
husband, scorned by his wife’s affair in the midst of false accusations of child
and spousal abuse.” The court ultimately determined the posts did not
constitute abuse. The court found Husband “violated the travel restrictions
of the DVTRO,” but concluded that this conduct did “not rise to the level of
abuse under the DVPA.”
Although it denied Wife’s DVRO petition and dissolved the DVTRO, the
court restrained Husband from leaving the Bay Area with the minor child
and prohibited him from “specifically referenc[ing] [Wife’s] name in any form
in future social media or public posts.” The court also scheduled a hearing for
prevailing party fees.
On November 21, 2024, the court issued a tentative ruling denying
Husband attorney’s fees because “the totality of the record” showed he failed
to prove by a preponderance of the evidence that Wife’s “DVRO request was
‘frivolous or solely intended to abuse, intimidate, or cause unnecessary
delay.’ ” On May 5, 2025, the court held a hearing on attorney’s fees. The
court addressed only whether Husband was entitled to prevailing-respondent
fees under section 6344, subdivision (b). It denied both parties’ requests for
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sanctions under section 271 and made clear it was “not addressing need-
based fees.”
Consistent with the earlier tentative ruling, the superior court
concluded Husband had not met section 6344, subdivision (b)’s
preponderance-of-the-evidence standard. It stated, “[T]here is insufficient
evidence to rise to the level of preponderance of the evidence that [the DVRO
petition] was filed solely with the intent to abuse, intimidate, or cause
unnecessary delay to [Husband] or that it was frivolous.” It continued,
“That’s at the standard of the preponderance of the evidence. Anything less
than that might be different. [¶] I definitely think there was a lot of abuse,
intimidation, and unnecessary delay due to when I look at [the] larger
context, but whether it is to the level of preponderance of the evidence, I can’t
find that. I don’t find that.”
The superior court then granted fees anyway: “For what it is worth, . . .
however, I will be awarding attorney fees in favor of [Husband] against [Wife]
. . . I think[] it is in the court’s discretion to award fees that I think [are]
reasonable based on the time spent for these types of cases.” The court cited
no authority apart from section 6344 for its asserted discretion to award fees.
The superior court’s minutes reflect the finding that Husband had not
met the statutory standard, and the Findings and Order After Hearing
denied “each party’s request for sanctions pursuant to Family Code
[section] 271,” confirmed “[t]he only issue before the Court is [Husband]’s
request for prevailing party attorney’s fees and costs pursuant to Family
Code [section] 6344[, subdivision] (b),” and awarded Husband $20,000 in
attorney’s fees and costs. (Italics removed.) Wife timely appealed.2
2 Wife requested judicial notice of five superior court documents related
to her motion to fix an undertaking and stay the judgment pending her
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“ ‘ “On review of an award of attorney fees after trial, the normal
standard of review is abuse of discretion.” ’ ” (Mountain Air Enterprises, LLC
v. Sundowner Towers, LLC (2017) 3 Cal.5th 744, 751.) However, we review
de novo the determination of whether the criteria for a fees award have been
satisfied when it turns on an issue of statutory construction or otherwise
rests on a question of law. (Ibid.) “ ‘It is an abuse of discretion for a trial
court to misinterpret or misapply the law.’ ” (Linton v. DeSoto Cab Co., Inc.
(2017) 15 Cal.App.5th 1208, 1215.)
We defer to the trial court’s factual findings if substantial evidence
supports them. (Parris J. v. Christopher U. (2023) 96 Cal.App.5th 108, 116.)
Similarly, we apply the substantial evidence standard to mixed questions of
law and fact that are primarily fact-dependent. (See In re R.V. (2015) 61
Cal.4th 181, 198 (R.V.).) We do “ ‘not reweigh the evidence, evaluate the
credibility of witnesses or indulge in inferences contrary to the findings of the
trial court.’ ” (In re Marriage of Nakamoto & Hsu (2022) 79 Cal.App.5th 457,
470.)
“California follows the American rule regarding attorney’s fees. Under
that rule, litigants are ordinarily responsible for paying their own attorney’s
fees, unless a statute or agreement provides otherwise.” (Travis v. Brand
(2023) 14 Cal.5th 411, 417 (Travis); see Musaelian v. Adams (2009) 45
Cal.4th 512, 516 (Musaelian); Code Civ. Proc., § 1021.) This rule applies
equally in family law cases because Family Code proceedings are governed by
the Code of Civil Procedure “[u]nless another statute or rule applies.”
(Loeffler v. Medina (2009) 174 Cal.App.4th 1495, 1503 [citing § 210].)
appeal of the attorney’s fee award. We deny the request as unnecessary for
resolution of the issue before us.
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Section 6344, subdivision (a) mandates the award of fees to a successful
DVPA petitioner: “After notice and a hearing, a court, upon request, shall
issue an order for the payment of attorney’s fees and costs for a prevailing
petitioner.” (§ 6344, subd. (a), italics added.) By contrast, subdivision (b)
gives a court discretion to award fees to a successful respondent, but “only if
the respondent establishes by a preponderance of the evidence that the
petition or request is frivolous or solely intended to abuse, intimidate, or
cause unnecessary delay.” (§ 6344, subd. (b).)
The superior court here correctly identified section 6344, subdivision (b)
as the controlling standard for Husband’s fee request, and the parties do not
dispute that standard applies or suggest any other source of authority for the
court’s order. The plain text of the statute states the court “may” award fees
to a prevailing respondent “only if the respondent establishes by a
preponderance of the evidence that the petition or request is frivolous or
solely intended to abuse, intimidate, or cause unnecessary delay.” (§ 6344,
subd. (b), italics added.) In both ordinary English and legal usage, the phrase
“only if” introduces a necessary condition. (California v. Hodari D. (1991) 499
U.S. 621, 628 [“ ‘only if’ ” states “a necessary, but not a sufficient, condition”];
Honchariw v. County of Stanislaus (2013) 218 Cal.App.4th 1019, 1030, fn. 8
[“ ‘only if’ identifies necessary conditions”].)
Both at the hearing on the fee request and in writing after, the superior
court unambiguously found that the necessary condition was not satisfied.
Husband failed to prove, by a preponderance of the evidence, that Wife’s
petition “was filed solely with the intent to abuse, intimidate, or cause
unnecessary delay to [Husband] or that it was frivolous.” The court thus
lacked the authority to award Husband fees as the prevailing respondent
under section 6344. (See McGuigan v. City of San Diego (2010) 183
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Cal.App.4th 610, 618 [“all of the statutory criteria were not met for such an
award and the court therefore lacked discretion to make a further award of
fees”]; Satrap v. Pacific Gas & Electric Co. (1996) 42 Cal.App.4th 72, 80–81
[affirming denial of attorney’s fees where one of several statutory criteria not
satisfied].)
The court identified no other source for its purported discretionary
authority to award Husband fees. Without a statutory basis or agreement by
the parties, “a court cannot award attorney’s fees.” (Superior Strut & Hanger
Co. v. Port of Oakland (1977) 72 Cal.App.3d 987, 1004, superseded by statute
on other grounds as stated in Melamed v. City of Long Beach (1993) 15
Cal.App.4th 70, 82.) The fee award was thus an abuse of discretion. (See
Rodriguez v. Menjivar (2015) 243 Cal.App.4th 816, 820 [“If the court’s
decision is influenced by an erroneous understanding of applicable law or
reflects an unawareness of the full scope of its discretion, the court has not
properly exercised its discretion under the law”].)
On appeal, Husband concedes that the court based its fee award on
section 6344, subdivision (b); that that provision requires finding by a
preponderance of the evidence the petition was frivolous or solely intended to
abuse, intimidate, or cause unnecessary delay; and that the court stated the
evidence did not meet that standard. Husband halfheartedly argues the
superior court’s findings were contradictory, pointing to the court’s statement
that “I definitely think there was a lot of abuse, intimidation, and
unnecessary delay due to when I look at [the] larger context.” We disagree.
First, a finding of “abuse, intimidation, and unnecessary delay”—even “a lot”
of it—is not the same as finding the petition was “solely intended to abuse,
intimidate, or cause unnecessary delay,” as the statute requires. (§ 6344,
subd. (b), italics added.) Second, Husband omits what the superior court said
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immediately after the comment he quotes: “but whether it is to the level of
preponderance of the evidence, I can’t find that. I don’t find that.” Thus, the
superior court found abuse, intimidation, and unnecessary delay, but it did
not find by a preponderance of the evidence that abuse, intimidation, or delay
was the sole intent of Wife’s petition. Those findings are not contradictory.
Husband also urges us to substitute our view of the evidence for the
superior court’s, arguing the record supported the fee award notwithstanding
the superior court’s conclusion Husband had not met the statutory standard.
But we must defer to the superior court’s finding if it is supported by
substantial evidence, which we conclude it is. (See R.V., supra, 61 Cal.4th at
p. 198.) The superior court acknowledged that an incident of physical
violence occurred on August 17, 2022, resulting in Wife’s injuries, and it
received into evidence contemporaneous photo and video evidence of Wife’s
bruising. It also credited and found persuasive Wife’s “testimony that she
was distraught and upset” about Husband’s Facebook posts—which used her
professional name, accused her of being “plagued by psychological issues” and
“neglect[ing] her child for shopping,” and threatened to “unleash the storm
and dive into tearing [Wife] apart.” The superior court ordered much of the
relief Wife sought, including granting a DVTRO and ordering Husband to
remove Wife’s name from his posts. And it also reaffirmed the DVTRO’s
travel restrictions after finding Husband violated them. Substantial evidence
thus supports the superior court’s finding that Husband did not show by a
preponderance of the evidence that Wife’s petition was frivolous or solely
intended to abuse, intimidate, or cause unnecessary delay.
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DISPOSITION
The order awarding Husband attorney’s fees is reversed. In the
interests of justice, the parties are to bear their own costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(5).)
TUCHER, P. J.
WE CONCUR:
PETROU, J.
RODRÍGUEZ, J.
In re Marriage of Michael & Sara W. (A174495)
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