Filed 9/4/26
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
In re the Marriage of TONY
TROUSSET and ERIN KELLEY.
TONY TROUSSET, A172398
Respondent,
v. (San Francisco City & County
ERIN KELLEY. Super. Ct. No. FDI21794361)
Appellant.
This case involves a dispute over the denial of a request for
postjudgment attorney fees in a marriage dissolution proceeding between
appellant Erin Kelley (Erin) and respondent Tony Trousset (Tony). 1 We
reverse and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND 2
In January 2021, after 16 years of marriage, Tony filed a petition to
dissolve his marriage to Erin. In June 2021, Tony filed a request for a
domestic violence restraining order (“DVRO”) when he realized Erin had
placed a tracking device on his car. The family court granted this request,
1 The parties refer to themselves by their first names in their briefing.
We do the same.
2 We summarize only those facts relevant to disposition of the issues
raised on appeal.
1
finding Tony established by a preponderance of the evidence that Erin had
“stalk[ed] and disturb[ed] [his] peace” and had engaged in conduct that fell
within Family Code section 6320’s definition of “coercive control.” Erin later
paid Tony attorney fees relative to the DVRO proceedings.
In January 2023, the parties signed a marital settlement agreement
(“MSA”) in which they divided multiple real properties and assets worth tens
of millions of dollars. Tony, an investment banker and the principal in an
investment group, also agreed to pay Erin, a former certified public
accountant who stopped working when the parties’ children were born, a
lump sum spousal support buyout of $1 million and an equalizing payment of
$2.6 million.
As for the children, Tony retained sole legal and physical custody of the
parties’ eldest daughter until further agreement or order of the court. He
agreed to pay child support to Erin for the younger two children (over whom
the parties had joint legal and physical custody), offset by the amount Erin
owed him for support of the eldest child. The parties agreed to a child
support calculation consisting of “base” child support and “bonus” child
support. The base child support is based on an imputed salary for Erin, a
salary for Tony based on his net income from the prior year, and imputed
investment returns and interest income for both parties. If Tony’s income
were to exceed his income from the previous year, bonus child support would
be calculated as a percentage of the additional income. In order to calculate
both base and bonus support, Tony was required to annually provide Erin
with financial information from his investment group. If the parties were
unable to agree on either the base or bonus support amounts, the MSA
reserved jurisdiction for the family court to set such amounts. In addition to
the child support amounts, the parties agreed to split various child support
2
add-ons including private school tuition (for which Tony would pay 70 percent
and Erin would pay 30 percent) and uninsured medical expenses such as
therapy costs for the children (which the parties would split evenly).
Various disputes followed the parties’ signing of the MSA, which was
ultimately incorporated into a judgment filed on June 21, 2023.
In February 2023, Erin sought an order granting her joint custody of
the parties’ eldest daughter who was estranged from and did not want to
communicate with her. The family court denied this request.
Tony also disclosed his 2022 net income was significantly less than
what he and his expert had previously anticipated; consequently, Erin would
be receiving a base child support amount that was substantially less than the
amount projected when the parties agreed to the MSA in January 2023. 3 On
April 3, 2023, the parties signed a stipulation regarding the base child
support amount Tony would pay. The following day, Erin filed a request to
modify the allocation of child support add-ons on the basis her agreement to
the original allocation of add-on expenses was made in reliance on Tony and
his expert’s projections regarding the child support amount she would
receive. In her request, Erin asked that Tony pay 80 instead of 70 percent of
the add-on expenses, claiming she could no longer afford her share of private
school tuition and therapy sessions for the parties’ children in light of the
reduced child support amount.
On May 4, 2023, Erin filed a request for attorney fees pursuant to
sections 2030 and 3557 of the Family Code. 4 She sought $95,000 for the fees
3 Tony represented in a later court filing that this decrease in income
resulted from general market conditions in the investment banking industry
at that time.
4 All unlabeled statutory references are to this code.
3
she incurred since signing the MSA and $80,000 in future fees she
anticipated incurring.
On May 26, 2023, Tony filed a motion to modify the base child support
amount. In his motion, Tony requested that the base amount be subject to a
“true-up” at the end of every year, such that Erin would reimburse him for
any child support paid in excess of what he owed based on his income from
the previous year.
On August 30, 2023, the family court issued a tentative ruling
addressing the parties’ postjudgment requests for orders, including Erin’s
request to modify allocation of the child support add-ons and her request for
attorney fees, and Tony’s request to modify child support. The court’s
tentative ruling stated there was a “significant disparity in access to funds to
pay legal fees” between Tony and Erin and that a fee award was warranted
“[o]n th[at] basis alone.” It then indicated it would need updated information
regarding the fees incurred by Erin after she filed her request for attorney
fees, along with updated income and expense declarations from both parties.
The hearing on the parties’ various requests was thereafter continued
several times and ultimately set for a long cause hearing before a different
judicial officer.
Over the course of these continuances, the parties submitted
supplemental declarations regarding their income and expenses and the
additional attorney fees incurred by Erin. During this time period, Erin also
filed a request that Tony be ordered to submit to a vocational evaluation to
determine his earning capacity, which the court denied on the basis Erin
could obtain this information through discovery such as a deposition of Tony
or the retention of an expert.
4
On October 15, 2024, the family court held a hearing on the parties’
requests and took the matter under submission. On November 7, the court
issued written findings and an order in which it denied Tony’s request to
modify child support and further ruled that, per the parties’ stipulation, the
child support add-on expenses would be reallocated pro rata based on the
annual income of the parties.
As relevant here, the family court also denied Erin’s request for
attorney fees under sections 2030 and 3557. In determining the propriety of
a fee award, the court noted it was required to consider whether there is a
disparity in access to legal representation, and whether one party is able to
pay for legal representation of both parties. The court then declared: “The
Court has reviewed each party’s Income and Expense Declaration. Tony
clearly has more liquid assets than Erin. However, while there is a disparity
in assets, Erin does not demonstrate need. Indeed, she has substantial liquid
assets (over $10 million).” The court went on to state that under section
2030, a court must also consider the circumstances described in section 4320
(which are relevant to spousal support). Here, the court identified as
relevant the circumstances that Erin already received “substantial
payments” from Tony to resolve spousal support and that she had been found
to have committed domestic violence against him.
Beyond these factors, the family court found the fees incurred by the
parties were not reasonably necessary because the issues were
“overlitigated.” In this regard, the court noted that both parties filed their
requests for orders shortly after reaching agreements about child support and
signing the MSA, with Erin seeking to modify the child support add-ons one
day after stipulating to the base child support amount, and Tony filing a
request to modify child support in response. The court went on to point out
5
that Erin took “full advantage” of the opportunity to conduct postjudgment
discovery by deposing both Tony and her own expert relative to the issue of
Tony’s earning capacity, and that she incurred over $522,000 in attorney fees
since signing the MSA while Tony expended $284,000 in fees. Thus, the
court concluded, “[w]hile each party may pursue their own litigation
strategies, they can also pay their own fees to do so.” It therefore denied
Erin’s request for fees in its entirety.
DISCUSSION
On appeal, Erin contends the trial court erred in denying her request
for attorney fees under section 2030 and in failing to apply section 3557 as an
alternative basis for a fee award. We agree the court committed error in its
denial of Erin’s request for fees under section 2030.
A. Section 2030
Applicable Legal Principles
Section 2030 provides that, in a marriage dissolution proceeding, a
court must “ensure that each party has access to legal representation . . . by
ordering, if necessary based on the income and needs assessments, one party
. . . to pay to the other party . . . whatever amount is reasonably necessary for
attorney fees and for the cost of maintaining or defending the proceeding
during the pendency of the proceeding.” (§ 2030, subd. (a)(1).) When a party
requests attorney fees and costs, the statute requires the court to make
findings as to: (1) “whether an award of attorney’s fees and costs under this
section is appropriate”; (2) “whether there is a disparity in access to funds to
retain counsel”; and (3) “whether one party is able to pay for legal
representation of both parties.” (§ 2030, subd. (a)(2).) “If the findings
demonstrate disparity in access and ability to pay, the court shall make an
order awarding attorney’s fees and costs.” (Ibid., italics added.)
6
A court may make a fee award under section 2030 where the making of
the award is “just and reasonable under the relative circumstances of the
respective parties.” (§ 2032, subd. (a).) In determining whether this
standard is met, a court shall consider whether an award is needed “to enable
each party, to the extent practical, to have sufficient resources to present the
party’s case adequately, taking into consideration, to the extent relevant, the
circumstances of the respective parties described in Section 4320 [which
enumerates factors for determining spousal support].” (§ 2032, subd. (b); see
§ 4320.)
As the statutory scheme makes clear, in determining an amount that
would be “just and reasonable” to award under section 2030, “[t]he fact that
the party requesting an award of attorney’s fees and costs has resources from
which the party could pay the party’s own attorney’s fees and costs is not
itself a bar to an order that the other party pay part or all of the fees and
costs requested.” (§ 2032, subd. (b).) Rather, “[f]inancial resources are only
one factor for the court to consider in determining how to apportion the
overall cost of the litigation equitably between the parties under their
relative circumstances.” (§ 2032, subd. (b).) The statutory reference to
section 4320 reinforces this principle by including considerations such as the
earning capacities and needs of each party but also, for example, the extent to
which one party contributed to the career advancement of the other, the age
and health of the parties, and any documented evidence of domestic violence
between the parties. (§ 4320, subds. (a), (b), (d), (h), (i).)
Courts have also held that, “[n]otwithstanding the parties’ relative
economic circumstances,” an award under section 2030 is properly denied if a
case has been “overlitigated” or when the fees were not reasonably necessary.
(In re Marriage of Ciprari (2019) 32 Cal.App.5th 83, 112 (Ciprari).)
7
In reviewing a trial court’s ruling on a request for attorney fees under
section 2030, we will not disturb the court’s exercise of its discretionary
authority absent a “ ‘clear showing of abuse.’ ” (In re Marriage of Duncan,
(2001) 90 Cal.App.4th 617, 630.) Applying this standard, “we consider de
novo any questions of law raised on appeal, but will uphold any findings of
fact supported by substantial evidence.” (In re Marriage of Smith (2015) 242
Cal.App.4th 529, 532.)
Analysis
Erin asserts the family court erred in denying her attorney fees request
without making the requisite findings under section 2030. She contends this
error was prejudicial because, between the court’s finding of an asset
disparity between her and Tony and the indisputable evidence of Tony’s
ability to pay for both parties’ representation, a fee award under section 2030
was mandatory. We conclude the court’s failure to make the appropriate
findings under section 2030 was error.
Under section 2030, subdivision (a)(2), a court is required to make
“express findings,” that is, “findings stated in words, either in writing or
orally on the record,” as to: (1) whether a fee award is appropriate,
(2) whether there is a disparity in access to funds to retain counsel, and
(3) whether one party is able to pay for legal representation of both parties.
(In re Marriage of Morton (2018) 27 Cal.App.5th 1025, 1051 (Morton).) The
failure to make express findings is “legal error.” (Id. at pp. 1052–1053
[finding legal error where court order omitted explicit findings as to two of
the three factors].)
Here, the family court failed to make express findings on the factors
referenced in section 2030, subdivision (a)(2). Though the court appeared to
find that a fee award was not appropriate (as is evident by its denial of fees
8
after considering the various factors under section 4320 and the parties’
litigation conduct), it did not make an express finding on either that issue or
the issue of disparity in access to funds, and it made no finding at all
regarding the ability of one party to pay fees for both parties.
Concerning the issue of disparity in access to funds to retain counsel,
the court found there was a “disparity of assets” as “Tony clearly ha[d] more
liquid assets than Erin.” (Italics added.) And Erin appears to construe this
language as an explicit finding of a “disparity in access to funds to retain
counsel,” as contemplated by section 2030, subdivision (a)(2). (Italics added.)
We are not so sure. We begin with the general observation that a disparity in
assets is not always tantamount to a disparity in access to funds to retain
legal counsel. Notably, here, the court’s order went on to state: “However,
while there is a disparity in assets, Erin does not demonstrate need. Indeed,
she has substantial liquid assets (over $10 million).” (Italics added.) Thus,
though Erin’s interpretation appears reasonable, the court’s statement could
reasonably and alternatively be construed as a finding that there was no
disparity in access to funds despite the parties’ disparity in assets.
On this record, we cannot tell what finding the family court intended to
make on the issue of the parties’ relative access to funds to retain legal
counsel. This ambiguity, coupled with the court’s complete silence on the
issue of whether one party had the ability to pay for legal representation for
both parties (see § 2030, subd. (a)(2)), was legal error. (See Morton, supra, 27
Cal.App.5th at pp. 1052–1053.) But that error by itself does not entitle Erin
to relief. Instead, the error must be reversed only if Erin can show by a
“ ‘reasonable probability’ ” that, in the absence of the error, a more favorable
result would have been reached. (Morton, at p. 1051; Cal. Const., art. VI,
§ 13.) Erin has met that burden.
9
Once again, the language of section 2030, subdivision (a)(2), states the
“court shall make an order awarding attorney’s fees and costs” if it finds
“disparity in access and ability to pay.” (Italics added; see Ciprari, supra, 32
Cal.App.5th at p. 112.) Here, the question is close, but we conclude reversal
is warranted because there is a reasonable probability—i.e., a reasonable
chance (see People v. Hernandez (Aug. 13, 2026, S282186) ___Cal.5th___
[2026 D.A.R. 7021])—that the family court would have made express findings
of disparity in access and ability to pay.
On the issue of ability to pay, as Erin points out on appeal, the record
evidence indicates that Tony had substantial income and a net worth of $22.5
million. As such, we conclude it is reasonably probable that the family court
would have found that Tony could pay for legal representation for him and
Erin, had it made an express finding on this issue. (See Morton, supra, 27
Cal.App.5th at p. 1051.)
The issue of whether it is reasonably probable the family court would
have found a disparity of access in funds to retain legal counsel is closer. As
we observed, ante, the court’s views on this issue were far from clear because
it both found there was a “disparity of assets” as “Tony clearly ha[d] more
liquid assets than Erin,” but also found that Erin had no need because she
had “substantial liquid assets (over $10 million),” which could lead to an
inference the court believed there to be no disparity in access. Nonetheless,
on balance, we conclude that if the court had properly evaluated this factor,
there appears a reasonable probability it would have found that in addition to
a disparity of assets between the parties, there was also a disparity of access
to funds available for legal representation.
Two Court of Appeal cases—Ciprari, supra, 32 Cal.App.5th 83 and
Morton, supra, 27 Cal.App.5th 1025—are instructive on this latter point. In
10
Ciprari, the husband and wife were both individuals of high net worth with
the husband leaving the marriage with approximately $10 million in assets
while the wife received $5 million. (Ciprari, supra, 32 Cal.App.5th at p. 93.)
The wife made a posttrial request for attorney fees, which the trial court
denied. (Id. at p. 111.) The Court of Appeal reversed this decision and,
among other things, held that a fee award under section 2030 was mandatory
because the trial court impliedly found there was a disparity in access to
funds to retain counsel and the husband had the ability to pay for both
parties’ legal representation, and substantial evidence supported these
implied findings. (Ciprari, supra, 32 Cal.App.5th at pp. 111, 112.) The
Ciprari court implied these findings from the trial court’s following
statement: “ ‘Under a need and ability to pay standard, clearly [Joe], who is
substantially gainfully employed and has a greater asset base, is better
positioned than [DeeDee]. It is also true that [DeeDee] has a significant asset
base from which to draw fees, but she is not employed and has no current
employment prospects as far as the court is aware.’ ” (Id. at p. 111.) The
Ciprari court stated that the fact the wife had a significant asset base from
which to draw fees was not a bar to a need-based fee award under section
2030. (Ibid.)
As for Morton, supra, the Court of Appeal held that the record
demonstrated a disparity in access to funds to retain counsel where both
parties had access to funds resulting from the division of the community
assets (amounting to $413,000 per party) but the husband also had access to
funds generated by his employment, co-ownership of two companies, rental
income, funds from other corporations, and sometimes significant tax
refunds, while the wife had minimal employment income before she stopped
working as a courier and only had access to the funds obtained from the
11
community assets division. (Morton, supra, 27 Cal.App.5th at pp. 1052–
1053.) Under these circumstances, the court held the record compelled a
finding of disparity in access to funds. (Ibid.)
Here, as in Ciprari, both Tony and Erin have substantial assets.
However, Tony has a greater asset base and receives substantial income from
his employment, while Erin took a break from her career when the parties’
children were born and was not employed when she filed her request for fees.
Further, as in Morton, even though both Tony and Erin have access to liquid
funds, Tony appears to have greater access by virtue of his gainful
employment while Erin’s access to funds apart from the community assets
division is unclear. Given the analogous facts in both Ciprari and Morton
(see Ciprari, supra, 32 Cal.App.5th at pp. 111–112; Morton, supra, 27
Cal.App.5th at p. 1053), we think that if the family court here had explicitly
considered this factor, there is a reasonable probability it would have found a
disparity in access to funds to retain counsel.
That said, due to the closeness of the facts and the ambiguity in the
family court’s findings, we will not go as far as Erin advocates. In particular,
we do not view Ciprari and Morton as compelling the conclusion that a fee
award under section 2030 is mandatory on the record presented. Unlike
Ciprari, there was no statement by the family court from which we can
clearly discern a finding of disparity in access to funds. The facts in this
record are also closer than those presented in Morton. In Morton, each party
had access to approximately $413,000 after division of the community assets,
but the husband also had other sources of income while the wife had minimal
employment income before she stopped working as a courier. (Morton, supra,
27 Cal.App.5th at pp. 1052–1053.) Here, Erin is unemployed, while Tony
12
draws substantial income as an investment banker and principal in an
investment group, but both parties have millions of dollars in assets.
Accordingly, we reverse and remand for the family court to clarify its
order by making the explicit findings required under section 2030,
subdivision (a)(2), based on the circumstances of the parties at the time of the
court’s ruling on Erin’s fee request. 5 If the court ultimately finds a disparity
in access and ability to pay, then it must determine what portion of Erin’s
requested fees are “appropriate” (§ 2030, subd. (a)(2)), as determined by what
is “just and reasonable under the relative circumstances of the respective
parties” (§ 2032, subd. (a), Ciprari, supra, 32 Cal.App.5th at p. 113). In this
regard, we would encourage the court to not paint with “too broad a brush” in
characterizing all of Erin’s fees as unreasonable, but to engage in a more
“nuanced and granular inquiry” when assessing reasonableness. (See
Ciprari, at p. 113.)
B. Section 3557
Section 3557, subdivision (a), provides in relevant part that in an action
to enforce an existing order for child support, the court “shall award
reasonable attorney fees” in order “to ensure that each party has access to
legal representation to preserve each party’s rights, upon determining (1) an
award of attorney fees and cost under this section is appropriate, (2) there is
5 Though section 2030, subdivision (a)(2), requires family courts to make
express findings, we do not suggest that any particular words or phrases
must be utilized. (See In re Marriage of Leonard (2004) 119 Cal.App.4th 546,
561, fn. 13 [appellate courts regularly reject claims of error based on a trial
court’s failure to incant particular “ ‘ magic words’ ”].) Rather, we hold only
that when a family court’s intent cannot be clearly discerned from its
statements and the record evidence is susceptible to differing conclusions, we
will not step in to make findings the court is better equipped to make. (See
Barbanell v. Lodge (2025) 117 Cal.App.5th 1003, 1010 [trial court is in the
best position to determine if criteria for a fee award have been met].)
13
a disparity in access to funds to retain counsel, and (3) one party is able to
pay for legal representation for both parties.” The statute requires such an
award to be made “absent good cause to the contrary.” (§ 3557, subd. (a).)
Erin asserts this statute applies to her efforts contesting Tony’s request
to modify the existing support order because, in opposing Tony’s request, she
was seeking to enforce the child support order. She further argues the family
court erred when it did not separately determine her entitlement to fees
under section 3557 despite the fact that statute “involves a different
analysis.” Erin’s contention is not well taken.
There is nothing about the statutory language that suggests an
opposition to a party’s request to modify a child support order constitutes an
“action to enforce . . . [a]n existing order for child support” within the
meaning of section 3557. (See § 3557, subd. (a)(1)(A).) Here, the record is
clear that Erin did not bring an action to enforce the child support order, and
the record contains no indication that Tony was noncompliant with his
support obligations under the MSA. As Erin’s request for fees under section
3557 is based solely on her response to Tony’s request to modify the support
order, we perceive no error in the family court’s denial of that request.
DISPOSITION
The judgment is reversed and remanded for further proceedings consistent
with this opinion. In the interests of justice, the parties shall bear their own costs
on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
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_________________________
Fujisaki, Acting P.J.
WE CONCUR:
_________________________
Petrou, J.
_________________________
Rodríguez, J.
15
Trial Court: San Francisco City & County Superior Court
Trial Judge: Hons. Roger C. Chan, Victor M. Hwang, and Michelle Tong
Counsel: Complex Appellate Litigation Group LLP, Claudia Ribet, and
Matthew B. Stucky for Plaintiff and Appellant.
Sucherman Insalaco LLP, Michelene Insalaco, and Sasha Fahimi for
Defendant and Respondent.
Trousset v. Kelley (A172398)
16