Thursday, November 13, 2025
Page 3
Court of Appeal:
Relying on Past Tactics in Denying Needs-Based Fees Is Error
Opinion Says Family Court Judge Erred in Considering Wife’s False Statements in Declaration, Unreasonable Legal Positions to Justify Declining to Award Funds to Pay for Future Litigation
By a MetNews Staff Writer
Div. One of the Fourth District Court of Appeal held yesterday that a judge erred in denying a wife’s request for on-going needs-based attorney fees based on her previous litigation tactics in the family court proceedings, saying that the fact that she was found to have lied in an earlier declaration and to have used wasteful strategies in the past had no impact on her entitlement to a pendente lite award.
At issue is whether the wife was entitled to fees under Family Code §2030(a), which provides:
“In a proceeding for dissolution of marriage,…the court shall 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’s fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding.”
Subdivision (2) specifies that “[i]f the findings demonstrate disparity in access and ability to pay, the court shall make an order awarding attorney’s fees and costs.”
Acting Presiding Justice Terry B. O’Rourke authored yesterday’s unpublished opinion, joined in by Justices Truc T. Do and Martin N. Buchanan saying:
“We conclude the family court included improper factors in reaching its decision on [the wife’s] request for section 2030 attorney fees, and absent those factors, it is reasonably probable it would reach a different decision.”
Divorce Proceedings
The question arose in divorce proceedings between James and Breanne Manning, initiated in 2021. The couple entered into a prenuptial agreement on the day of their wedding to favor James Manning, who entered into the union with considerable assets and income.
James Manning was ordered to pay monthly support and an equalizing payment of $150,000 to Breanne Manning in 2022, and, the following year, he paid her $40,000 in §2030 fees as well as an additional $10,000 contribution toward costs associated with retaining an expert witness.
In March of last year, she filed a request seeking an additional $200,000 in attorney fees and $50,000 in expert-witness costs, asserting that there was a large disparity in income between the parties and that the award was necessary to allow her to “continue efforts to resolve this matter.”
At an evidentiary hearing, Breanne Manning testified that she owed her former attorney $141,000 and admitted that she had misstated in a declaration, dated July 2023, the name of the lawyer that had purportedly pressured her into signing the prenuptial agreement and wrongly said that the contract was signed the day before the wedding rather than on the day of the ceremony.
She also said one of her attorneys had promised to drop a request for a temporary restraining order in exchange for a payment of $1 million.
Fee Request Denied
In June 2024, San Diego Superior Court Judge Rebecca Church found that “there clearly is a disparity in income” but denied the request for fees. She declared:
“The litigation tactics are unreasonable in this case. It is an unreasonable use of the existing funds. The [domestic violence] restraining order hearing, there were adverse credibility determinations. There was the court noting some meritless allegations….
“[I]n addition to that, there is the fact of the admission as to perjury in some declarations. That increases litigation. There was a long time in which it could have been corrected. It was not corrected. And it is a course of litigation positions which were unreasonable, which drove up the attorney’s fees for which there is now this request for the attorney’s fees.”
Breanne Manning’s request for reconsideration of the attorney fee award was denied.
Yesterday’s opinion reverses the denial and remands for the determination of “a reasonable award.”
O’Rourke noted that §2030 requires “express findings” on three specific questions—the appropriateness of a fee award, the disparity of income between the parties, and whether one spouse can pay for the legal representation of both parties.
Absence of Findings
Saying that Church did not make the required findings, O’Rourke wrote:
“Given the statutory language, the finding as to ability of one party to pay cannot be subsumed into the other inquiries concerning disparity in access or the propriety of a fee award. Accordingly, we hold the trial court did not make the required express findings on the parties’ ability to pay….”
Writing that Church also “included improper factors in reaching its decision on Breanne’s request for section 2030 attorney fees,” he opined:
“At this stage, Breanne’s past litigation efforts or ‘tactics’ were not a proper consideration. Breanne’s request was for pendente lite attorney fees: preparatory to future proceedings. She was not asking James to contribute to fees she had already incurred and paid, and thus the court was not assessing the reasonableness and necessity of those fees.”
He distinguished cases relying on unreasonable litigation tactics to deny fee requests made after proceedings had concluded, remarking that there were issues to be resolved at “a later trial” and that, “[o]n this record, it cannot be said there are not upcoming proceedings requiring the expenditure of attorney fees.”
Lack of Credibility
The jurist continued:
“The trial court referenced Breanne’s lack of credibility, false and/or perjured declarations and conduct that ‘drove up the attorney’s fees….’ But Judge Church did not explain the materiality of a single-day difference in the date of signing the prenuptial agreement or the identity of counsel, and we see no basis in this record to conclude those inaccuracies amounted to perjury. Nor did Judge Church explain how these inaccuracies increased litigation and attendant expense.”
O’Rourke added:
“Actions tending to frustrate settlement or the expeditious resolution of the matter may be the basis for possible sanctions under section 271, but they are not proper considerations in determining whether Breanne is entitled to a pendente lite attorney fee award. They do not involve issues concerning disparity of access and ability to pay. James is free to consider addressing Breanne’s past litigation conduct by asking for section 271 attorney fees, which are not based on need, but whose purpose is to sanction….”
Finding prejudicial error, he commented:
“Nothing we say condones dishonesty in litigation proceedings, or frivolous litigation efforts. However, section 2030 is clear: ‘If the [family court’s] findings demonstrate disparity in access and ability to pay, the court shall make an order awarding attorney’s fees and costs.’…We emphasize that in making an award the court may limit the amount to what is reasonably necessary, and in making that determination, consider any factor the court deems just and equitable.”
The case is In re Marriage of Manning, D084718.
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