Metropolitan News-Enterprise

 

Friday, August 19, 2022

 

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Order to Ex-Wife to Pay Fees of Attorneys for High-Salaried Ex-Husband Is Reversed

Court of Appeal Says Need-Based Statute Can’t Be Utilized to Deter Future Objectionable Litigation Conduct

 

By a MetNews Staff Writer

 

A judge abused his discretion in ordering that a woman pay her ex-husband $62,656.10 to compensate him for attorney fees he spent in post-dissolution litigation where the award was made under Family Code §2030, a financial-need statute, yet he was making more money than she was, and the bench officer’s stated objective was to teach the ex-wife a lesson, the Sixth District Court of Appeal has held.

“Because the stated intent of section 2030 is to establish sufficient economic parity for both parties to retain counsel (at least where feasible), we conclude that an award of fees to a party who does not suffer from a disparity in access to funds to hire counsel contravenes the statute’s purpose,” Presiding Justice Mary J. Greenwood said in an unpublished opinion, filed Wednesday.

“If the requesting party has no need,” she wrote, an award may not be made under that statute.

The ex-husband, petitioner Gregory Jensen, moved for the award of fees at a time he was unemployed. But when Santa Cruz Superior Court Judge John Gallagher made his order on Feb. 24, 2021, Jensen was then earning an annual salary of $265,000, with an up-front bonus of $50,000 and another $50,000 bonus to be received after one year.

He had become director of product management at Adobe in the San Francisco Bay Area.

‘Clear Guidance’ Needed

Despite Gregory Jensen’s income now exceeding that of his former spouse, Heather Jensen, Gallagher observed at the hearing that the ex-wife needed “clear guidance” and remarked that it was “unfortunate that she was being represented by a law firm”—that of El Centro lawyer Ethan Jonah Marcus—that is “willing to misrepresent the law and facts.”

The order he signed recites:

“The court finds that if there is no award of attorney’s fees and costs to Petitioner, the likelihood of Respondent’s continuing obstreperous behavior will continue to cause Petitioner to further incur attorney’s fees and costs.”

That order, as proposed by the ex-husband, cited Family Code §271, a sanction statute, but Gallagher struck references to it as a basis for his order because Gregory Jensen had not sought sanctions in his motion.

Appellant’s Brief

In appellant Heather Jensen’s opening brief, attorney Christopher McDonough of San Diego’s Marcus Family Law Center pointed out that the ex-husband’s salary is “almost two and a half times” his client’s income and asserted:

“This award does not even the playing field at all, but rather tilts it overwhelmingly in GREGORY’s favor….”

In the respondent’s brief, Berkeley attorney Joseph A. Hearst noted that “the award covered fees incurred when Gregory was unemployed and receiving unemployment benefits—a period during which he continued to make $6700 monthly support payments to Heather by dipping into his savings” and insisted that Gallagher was entitled to consider “Heather’s time-wasting, unsuccessful, and abusive trial tactics.”

Greenwood provided this discussion:

“Heather contends that the trial court abused its discretion by incorrectly applying the law of needs-based attorney’s fees under section 2030 to emphasize her litigation conduct instead of the relative financial resources of the parties. She further argues that the trial court abused its discretion because the respective financial circumstances of the parties precluded an order that she pay fees. She asserts that the trial court’s purpose was to punish her through the fees order and to deplete her resources to prevent her from adequately representing her position in future litigation. We conclude that the trial court abused its discretion by granting the fees request in contravention of the stated purpose of section 2030.”

She went on to say:

“We agree with Gregory that section 2032, subdivision (b) grants the trial court discretion to consider non-economic factors, including litigation conduct, when determining an appropriate attorney’s fees award. However, those authorities that have addressed trial tactics as relevant to the determination of appropriate attorney’s fees under section 2030 are inapposite here as none address an award of fees where the moving party has not demonstrated a need for funds to retain counsel.”

The case is Jensen v. Jensen, H048948.

 

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