Friday, March 20, 2009
Court Vacates Attorney Fee Award for Depriving Payor Access to Justice
By SHERRI M. OKAMOTO, Staff Writer
The Fourth District Court of Appeal has overturned two trial court orders preparatory to a child custody hearing for effectively depriving the father of access to justice by denying him the financial means to retain counsel while requiring him to pay his former wife’s representation.
In an opinion Wednesday by Presiding Justice David G. Sills, Div. Three held that a pendente lite attorney fee award against the father, identified as Alan T.S. Jr., and an order reducing his appellate cost award in a prior proceeding left him “playing the role of a pro per whose case, shades of Gideon’s Trumpet, [was] doomed from the beginning.”
Alan and his former wife, identified as Mary T., had two children before filing for divorce in 1995. A final, formal judgment awarding custody of both children to Alan was filed in 1997.
Two years later, Mary relocated to Nevada, and then in 2004 she accused her former husband of physically abusing the children.
The allegations resulted in a sustained petition to establish juvenile court jurisdiction over the children, but the juvenile dependency court did not remove them from Alan’s care.
In February 2006, the dependency court terminated jurisdiction, leaving both children in their father’s custody. Almost immediately thereafter, Mary filed an order to show cause in the Orange Superior Court’s family law court seeking modification based on a claim that her son no longer wanted to live with his father.
Judge Michael Naughton granted a temporary change of custody to Mary and a hearing took place almost nine months later before retired Orange Superior Court Judge Robert D. Monarch, sitting by assignment.
Both Alan and Mary were represented by counsel at the hearing, but when Alan appealed Monarch’s award of primary physical custody to Mary, he did so in pro per.
Div. Three reversed, concluding Monarch applied the wrong standard in gauging whether there had been a material change of circumstances since the initial award of custody in 1997, rather than since the dependency court’s 2006 order, and the case was sent back to the trial court.
Alan then sought to recover approximately $5,900 of his appellate costs and Mary—who had also represented herself on appeal—again retained counsel, objecting to expenses Alan incurred for reporter’s transcripts.
She contended that since Alan had only appealed Monarch’s child custody change-of-circumstances ruling, any reporter’s transcripts outside of that hearing were not “reasonably necessary to the conduct of the litigation.” She also objected to paying the filing fee for Alan’s reply brief.
Orange Superior Court Judge Nancy A. Pollard stripped $2,529.81 from the cost bill as requested by Mary, and made the order payable in installments at the rate of $150 a month.
Mary also sought pendente lite attorney fees based on the nominal income disparity between her $5,135 in monthly earnings and Alan’s $8,333.33 monthly income as a law librarian at a large Century City law firm, which Sills noted in his opinion for the appellate court did not include family law as one of its practice areas.
Pollard awarded her $9,000 in attorney fees made payable by Alan at the rate of $300 per month.
Still proceeding in pro per, Alan filed a petition for a writ of mandate challenging Pollard’s orders reducing his costs of appeal and awarding Mary attorney fees.
Acknowledging that both issues would affect Alan’s ability to afford a lawyer to represent him in the child custody hearing, the appellate court stayed all proceedings, issued and order to show cause, and scheduled oral argument on Alan’s writ petition.
Sills explained that Alan’s ability to obtain sufficient financial resources to present his case was interrelated with the trial court’s pendente lite fee order—which allowed Mary to have a lawyer while he could not afford one—and the cost bill reduction, which deprived him of a sum he could theoretically have used as a retainer for counsel.
Without an attorney, Sills said, Alan would be left to “haplessly flail away” on his own, thwarting the legislative goal of behind Family Code Sec. 2030(a)(1) that each party in a custody hearing have access to legal representation to ensure a “fair fight.”
The section’s purpose, Sills noted, was not redistribution of money, but parity.
“The idea is that both sides should have the opportunity to retain counsel, not just (as is usually the case) only the party with greater financial strength,” he wrote.
Sills said that a party’s financial resources and expenses are among the considerations a trial court must take into account, and concluded that the matter had to be remanded for reconsideration of the party’s basic circumstances because record did not show any consideration of factors such as Alan’s debt; his inability to afford visiting his children; his apparent expenditure of all of his liquid assets on counsel in earlier proceedings; his child support payments; and the income respectively contributed by each party’s new partner.
The justice also explained that Pollard had erred in granting Mary’s motion because it had been untimely and because determination of what is and is not reasonably necessary for an appeal is the province of the Court of Appeal.
Sills then added that an award of costs on appeal is a money judgment, not a matter of equity, and said a trial judge has no authority to make such judgments payable in incremental installments.
Steven R. Grecco and Craig A. Darling of the Law Offices of Steven R. Grecco represented Mary on appeal.
Justices Richard M. Aronson and Raymond J. Ikola joined Sills in his opinion.
The case is Alan T. S. v. Superior Court (Mary T.), 09 S.O.S. 1674.
Copyright 2009, Metropolitan News Company