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Court of Appeal:
Unemployed Lawyer Must Pay $25,000 Attorney-Fee Award
Appeals Court Considers His Earning Capacity; Another Panel Affirms Denial of Motion by a Lawyer to Suspend Child Support Payments During Pandemic
By a MetNews Staff Writer
The First District Court of Appeal has rejected the protest by a man with a active law license that he was improperly ordered to pay his ex-wife $25,000 need-based attorney-fee award because he’s out of work and lacks the ability to pay.
Thursday’s opinion by Div. Two takes into account the attorney’s earning capacity and it reasons that because he was able to represent himself, money he would otherwise have had to spend on his own lawyers could be applied to legal costs his ex-wife incurred.
On Friday, the First District’s Div. Three affirmed an order denying a father’s motion to suspend child support payments, or set them at $0, in light of the drop in his salary from $578,767 in 2018 to $100,000 in 2020 as the result of his law firm’s financial difficulties occasion by the pandemic.
Family Code §2030
Thursday’s decision stemmed from an appeal from an order by Marin Superior Court Judge Verna Adams, made pursuant to Family Code §2030. The appellant is Rockford M. Hearn, formerly of the San Francisco law firm of Bertrand, Fox, Elliot, Osman & Wenzel.
He says he was “unexpectedly discharged” from the firm on Feb. 2, 2021.
Sec. 2030(a)(1) provides that in divorce cases, “the court shall ensure that each party has access to legal representation to preserve each party’s rights by ordering, if necessary based on the income and needs assessments, one party…to pay to the other party, or to the other party’s attorney, whatever amount is reasonably necessary for attorney’s fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding.”
It is undisputed the ex-wife, Jennie Hearn, is also unemployed.
Miller’s Opinion
Justice Douglas P. Miller of Div. Two said in Thursday’s opinion:
“To the extent Rocky argues that his being unemployed and therefore lacking current income precludes a finding that he has ability to pay Jennie’s fees, he downplays the evidence of his earning capacity….There was evidence that Rocky earned over $155,000 in salary and bonus as an attorney in 2020; that he was a member of the bar in good standing; and that shortly after he lost his job in February 2021 he told Jennie that he was working with a recruiter and expected to be employed by March.”
Miller said that “although Rocky is temporarily without earned income, there is evidence from his qualifications and history of employment” and other facts “to support a reasonable expectation that he will again be gainfully employed as an attorney.”
In connection with the proceeding before Adams, the ex-husband produced a notice from the Employment Development Department setting forth that he was “unable to work required hours due to need to care for children due to COVID-19.” The justice noted schools are now back in session.
Incurred No Fees
He pointed out Adams “found that Rocky was ‘vigorously’ representing himself without incurring the expense of retaining counsel, and that Jennie had to retain counsel ‘at the going rate’ to represent her in the trial court and in responding to Rocky’s appeals.” Miller commented: “Rocky had access to legal representation without paying attorney fees and Jennie did not….The court did not require Rocky to pay all of Jennie’s fees and costs: rather, the court found that Rocky was able to pay for the legal representation of both parties insofar as he paid nothing for his own representation and had the ability to contribute the fees and costs that Jennie outlined in her request for order.”
Thursday’s opinion recites, in a footnote, Jennie Hearn’s statement in a declaration that “Rocky has told me in no uncertain terms he will continue to fight me because it is easy for him to be his own lawyer and he enjoys it.” Rockford Hearn has denied the assertion.
The case is Marriage of Hearn, 2023 S.O.S. 2929.
On Aug. 30, 2021, the First District’s Div. Two issued two unpublished opinions by Miller in response to appeals by Rockford Hearn—one affirming the judgment of dissolution of marriage and the other affirming a postjudgment order aimed at enforcing orders he had snubbed to pay a $15,000 share of his ex-wife’s attorney fees and split his 401(k) plan with her.
Child-Support Order
Justice Carin T. Fujisaki wrote the opinion filed Friday affirming Contra Costa Superior Court Judge Benjamin T. Reyes’s order denying a motion by attorney Scott Cole, now of El Cajon in San Diego County, to lift the order for child support because he had to slash his pay to $100,000 per year in order to keep his law firm, Scott Cole and Associates (“SCA”). He’s the firm’s sole shareholder.
The justice quoted Reyes as commenting in his statement of decision:
“It is unfortunate that an experienced, successful attorney with considerable financial assets and holdings has undertaken vigorous litigation to deprive his children of the support that they require to maintain their status in life. At this point in the litigation, the Parties have spent more money litigating this case than the amount of support that is owed to the Parties’ children.”
The amount owed was $90,444 and Reyes ordered Cole to pay up.
Fujisaki’s Opinion
Fujisaki wrote:
“[T]the court could properly impute income in excess of Scott’s $100,000 salary based on his earning capacity and the evidence of SCA’s non-operating reserves in 2020 that could have added to Scott’s salary.”
She remarked:
“Scott evidently chose to substantially reduce his salary while continuing to support his lifestyle using other available assets, instead of drawing a salary that would cover his child support obligations and using those other assets to keep his business going.”
In an unpublished portion of the opinion, Fujisaki found that Reyes did abuse his discretion in order Scott Cole to pay ex-wife Kikianne Cole’s attorney fees in the amount of $123,909.
The case is In re Marriage of Cole, 2023 S.O.S. 2908.
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