Tuesday, October 3, 2017
Attorney-Fee Award Can’t Be Based on Guesswork—Court of Appeal
Commissioner Reversed Based on Order to Ex-Wife With No Income to Pay Fees Incurred by Former Spouse Based on Assumption She Could Get a Loan
By a MetNews Staff Writer
The Court of Appeal for this district has relieved a debt-plagued financial advisor of the obligation to pay $15,000 toward the attorney fees of her ex-husband, also a financial advisor as well as an Uber driver, because a Los Angeles Superior Court family law commissioner merely guessed that she could raise the funds.
Friday’s decision, in favor of appellant Nadia Dickinson, president of Dickinson Graham Capital Management, reverses a decision of Commissioner Robert J. Palazzolo in favor of Dickinson’s ex-spouse, Gino Aquino.
“The award was not based on Dickinson’s income or assets,” Acting Justice Kim Dunning said in her unpublished opinion for Div. Five, “but on the trial court’s assumption she had the ability to borrow the money to make the payment.”
She quoted Palazzolo as remarking that Aquino “has little or no income” and Dickinson “has apparently zero income” but that he is “assuming” that the ex-wife “has the ability to borrow money.”
‘Disparity’ Not Found
Dunning, an Orange Superior Court judge sitting on assignment, said the record reflects no consideration by Palazzolo as to whether there was, as between the parties, a “disparity in access and ability to pay,” as required by Family Code §2030. Nor does it appear that he determined that the order was “just and reasonable under the relative circumstances of the respective parties,” as mandated by case law, she observed.
“Dickinson has not cited, and our independent research has not uncovered, a published appellate decision where an award of attorney fees under section 2030 was based on the paying party’s assumed ability to obtain loans and then affirmed on appeal,” she wrote.
(Ordinarily, an opinion would note that the proponent of affirmance had not cited precedent for the ruling, but here, Aquino’s lawyer filed no respondent’s brief.)
Dunning noted that Dickinson made a showing that her financial advisement firm was losing money; that when she left Morgan Stanley (after 28 years), it sued her; she apparently settled; she incurred $78,000 in attorney fees and was precluded from soliciting about a third of her former clients.
$1 Million Debt
The jurist went on to say:
“The trial court acknowledged Dickinson’s credibility and ‘limited ability’ to pay, finding she had ‘zero income’ and substantial monthly expenses. Dickinson also had sole legal and physical custody of the parties’ child and did not receive child support. Nothing in the record suggests the trial court disputed that Dickinson had more than $1 million in debt. And nothing in the record supports the assumption that, having such debt, Dickinson still would have the ability to incur more.”
The case is Marriage of Aquino, B279406.
James S. Kostas and William A. Koch represented Dickinson on appeal.
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