Opinion
NOT TO BE PUBLISHED
Super. Ct. No. FL04-802
CANTIL-SAKAUYE, J.
Scott Loeliger (Father) and Sadiya Loeliger Alilire (Mother) dissolved their marriage in 1992. The ensuing years witnessed on-going disputes over custody, visitation and therapy for the parties’ daughter, F. L., now 18 years old. (Loeliger I, pp. 2-6.) In what we hope is the last chapter in this unhappy tale, Father appeals from the April 2007 judgment (order) awarding Mother $31,000 in attorney fees and $500 in costs. We shall affirm the judgment (order).
In re Marriage of Loeliger (Jan. 26, 2004, C043568) 2004 Cal.App.Unpub. LEXIS 664, page 2 (Loeliger I).
FACTUAL AND PROCEDURAL BACKGROUND
Father is a physician with an average monthly income of $20,000. Mother is a self-employed registered nurse and occupational therapist earning an average of $2,700 per month. Between 2004 and 2007, the court awarded $500 in attorney fees to Mother, repeatedly reserving the attorney fee issue for future resolution.
Father and Mother provide lengthy accounts of their most recent battle over custody and visitation. In the fall of 2004, Mother had primary physical custody of F. L. F. L. was in psychotherapy with Dr. Katherine Jaeger, and F. L. and Father were scheduled to start visitation under the supervision of Dr. Gordon Ulrey. Father accused Mother of destroying the relationship between him and F. L. He cited F. L.’s false accusations of emotional abuse made in writings, newspaper interviews, and a public radio program, as examples of Mother’s efforts to brainwash F. L.
Appearing in propria persona in September 2005, Father moved to modify child custody, child support and visitation, requesting attorney fees, costs and sanctions against Mother in the amount of $10,000. Father also asked that Mother and F. L. “REMOVE THEIR CONSENT FOR MINOR TO APPEAR IN DOCUMENTARY FALSELY ALLEGING THAT [FATHER] PHYSICALLY ABUSED THE MINOR . . . .” Mother opposed the requested modification and moved for attorney fees and costs. She described the difficulties in scheduling supervised visitation between Father and F. L. Father responded with requests to discontinue F. L.’s therapy with Dr. Jaeger after one year, end supervised visitation and select a new, specialized therapist to conduct joint therapy between Father and F. L. In response to Mother’s attorney’s description of Father’s legal actions as a “‘waste of time’” and a “‘wild goose chase,’” Father stated that “[t]he gravest, most egregious example of [Mother’s] behavior and lack of cooperation that has caused this matter to drag on is her support and chaperoning of the minor child in public forums falsely denying her own child abuse and portraying [Father] as a child abuser and batterer.” He described Mother’s attorney fee claim as “outrageous.”
In December 2005, Father filed an order to show cause seeking elimination of supervised visitation and $1,000 in sanctions against Mother for interfering with his efforts to rebuild his relationship with F. L. Mother opposed any modification of the current orders and sought costs and attorney fees in the sum of $39,537.50. She accused Father of launching “a national publicity campaign” against her and F. L. “to retaliate for [their] participation in a recent PBS documentary.” Mother stated that F. L. refused to see Father because of the retaliation, Father’s lack of commitment to improving his relationship with F. L., and because Father continued the litigation. Mother argued that F. L. was old enough to make that decision and asked the court not to force F. L. to see Father in an unsupervised setting. Mother described Father as an “enthusiastic” pro per litigator who boasted that he would bankrupt her. Father disputed Mother’s account of the facts.
The court conducted a hearing on Father’s order to show cause in December 2005. After meeting with F. L. in chambers, the court ruled there would be no unsupervised visitation. It denied Father’s request for attorney fees and sanctions. The court also asked the parties to outline the remaining issues to be addressed at a June 2006 hearing. Mother filed a declaration a week before the June hearing in which she listed the remaining issues and described Father’s attempts to contact F. L. in violation of earlier court orders. Among other things, Mother recounted an incident involving appellant at F. L.’s three-day soccer tournament which ended when Davis Police intervened. F. L. told police that she provoked the incident with Father because no one believed he was stalking her. Mother asked for “significant fees” as a Family Code section 270 sanction. Father responded that Mother “manufactur[ed] false police interventions.” He stated that he was quietly watching F. L.’s soccer game and his behavior “only became a nightmare when [Mother] clearly provoked [F. L.] to confront and terrorize [him] and her two siblings . . . .”
Hereafter, undesignated statutory references are to the Family Code.
In June 2006, the court issued a tentative order on all remaining issues which included, among other things, that Father pay Mother $31,000 in attorney fees and $500 in costs. Father requested an evidentiary hearing on all issues and obtained counsel to represent him. Both parties submitted additional briefing and updated income and expense declarations. Their arguments on attorney fees cited the requirements of Family Code section 2032.
The court stated at the February 2007 hearing that it had read the papers, declarations and exhibits. There was almost no mention of attorney fees at oral argument. The court issued an order after hearing which repeated the earlier ruling that Father pay Mother $31,000 in attorney fees and $500 in costs in a lump sum or in monthly installments on condition that payments be made on time. Mother’s attorney asked the court to clarify two points regarding attorney fees before drafting the judgment (order).
Father appeals from the entire judgment (order), but challenges only the attorney fee award in his briefs.
DISCUSSION
I.
Standard of Review
Review of this attorney fee award is subject to two well-established principles. First, “‘[a] judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’ [Citations.]” (Denham v. Superior Court of Los Angeles County (1970) 2 Cal.3d 557, 564 (Denham); see also In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133 (Arceneaux).)
Father acknowledges this rule but argues it does not apply in the circumstances of this case. He concedes that he was not entitled to a statement of decision following hearing on a motion for attorney fees. (In re Marriage of Askmo (2000) 85 Cal.App.4th 1032, 1040.) Father nonetheless maintains there is no basis for Mother’s argument that he forfeited the attorney fee issue by failing to object to the order on grounds of ambiguity or omission. Mother relied on Arceneaux, supra, 51 Cal.3d at pages 1133-1134, a case in which the appellant husband failed to object to a statement of decision issued after trial. Although Arceneaux is inapplicable in the procedural setting of this family law matter, the fact Father is not bound by rules governing statements of decision does not rescue him from the consequences of the more general rule cited above. Father must affirmatively show error, and in the face of a silent record, we will imply findings to support the judgment. (Id. at p. 1134; Denham, supra, 2 Cal.3d at p. 564.) Both Father and Mother had the opportunity to request clarification of the court’s ruling. Mother successfully sought clarification and Father did not.
Second, the standard of review for orders awarding attorney fees in family law matters is abuse of discretion. (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 283 (Cheriton).) “‘An abuse of discretion occurs “where, considering all the relevant circumstances, the court has exceeded the bounds of reason or it can fairly be said that no judge would reasonably make the same order under the same circumstances.” [Citation.]’ [Citation.]” (In re Marriage of Bower (2002) 96 Cal.App.4th 893, 898-899.)
Father contends the court abused its discretion in awarding attorney fees without considering the statutory factors relevant to the award. Father also challenges the award as unreasonable based on Mother’s conduct and his lack of ability to pay. He asserts that unspecific billing statements and the court’s lack of experience in family law matters contributed to the court’s error. We reject Father’s contentions.
II.
Need-Based Attorney Fee Awards
Sections 2030 and 2032 provide the statutory basis for attorney fee awards in the family law setting. Section 2030 reads in relevant part: “(a)(1) In a proceeding for dissolution of marriage, nullity of marriage, or legal separation of the parties, and in any proceeding subsequent to entry of a related judgment, 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, except a governmental entity, 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. [¶] (2) Whether one party shall be ordered to pay attorney’s fees and costs for another party, and what amount shall be paid, shall be determined based upon, (A) the respective incomes and needs of the parties, and (B) any factors affecting the parties’ respective abilities to pay. . . .” (Italics added.)
Section 2032 offers trial courts additional guidance in making the attorney fee award: “(a) The court may make an award of attorney’s fees and costs under Section 2030 or 2031 where the making of the award, and the amount of the award, are just and reasonable under the relative circumstances of the respective parties. [¶] (b) In determining what is just and reasonable under the relative circumstances, the court shall take into consideration the need for the award to enable each party, to the extent practical, to have sufficient financial resources to present the party’s case adequately, taking into consideration, to the extent relevant, the circumstances of the respective parties described in Section 4320. The fact that the party requesting an award of attorney’s fees and costs has resources from which the party could pay the party’s own attorney’s fees and costs is not itself a bar to an order that the other party pay part or all of the fees and costs requested. Financial resources are only one factor for the court to consider in determining how to apportion the overall cost of the litigation equitably between the parties under their relative circumstances.” (Italics added.)
Section 4320 lists various circumstances that the court “shall consider” in awarding spousal support.
To determine the amount of attorney fees that is “just and reasonable” under section 2032, courts consider “‘“the nature of the litigation, its difficulty, the amount involved, the skill required and the skill employed in handling the litigation, the attention given, the success of the attorney’s efforts, his learning, his age, and his experience in the particular type of work demanded [citation]; the intricacies and importance of the litigation, the labor and the necessity for skilled legal training and ability in trying the cause, and the time consumed. [Citations.]” [Citations.]’ [Citation.]” (In re Marriage of Keech (1999) 75 Cal.App.4th 860, 870 (Keech).) Although the court has broad discretion in granting or denying need-based attorney fees, the record must show that the court considered the statutory factors in exercising its discretion. (Id. at p. 866.)
Relying on In re Marriage of Lynn (2002) 101 Cal.App.4th 120 (Lynn), Father argues reversal is required because the court abused its discretion in failing to indicate on the record the statutory basis for the attorney fee award. In Lynn, husband appealed from an order directing him to pay spousal support in an amount identical to his property settlement obligation, which had been discharged in bankruptcy. The court cited section 3592 in support of its ruling. Husband argued that the support order improperly reinstated the discharged property settlement in the guise of spousal support. (Lynn, supra, at pp. 123, 124.) Based on the record, including the trial court’s express reference to section 3592, which was inapplicable to the simple request for modification of spousal support, the appellate court could not determine whether the trial court based its decision on other factors. It ruled that while the trial court could have considered the discharged debt in assessing husband’s current support obligation, the trial court erred in failing to consider the other statutory factors governing spousal support set forth in section 4320. (Lynn, supra, at p. 132.) The appellate court reversed to allow the trial court to consider the proper statutory factors. (Id. at p. 134.) Unlike Lynn, the trial court in this case impliedly considered the proper statutory factors highlighted in the parties’ briefs, which the court read. Father does not suggest that the court relied on an improper statutory basis in awarding attorney fees to Mother.
Section 3592 provides: “If an obligation under an agreement for settlement of property to a spouse or for support of a spouse is discharged in bankruptcy, the court may make all proper orders for the support of the spouse, as the court determines are just, having regard for the circumstances of the parties and the amount of the obligations under the agreement that are discharged.” (Italics added.)
Moreover, nothing in sections 2030 or 2032 and the related case authority requires the court to expressly state its reasons for granting, reducing or denying need-based attorney fee requests. The record must simply reveal that the court considered proper factors in exercising its discretion to make a “just and reasonable” award. (§ 2032, subd. (a); Marriage of Braud (1996) 45 Cal.App.4th 797, 827 (Braud).) Appellate courts intervene and reverse attorney fee awards only where the record clearly shows that the court failed to consider “the relative circumstances of the respective parties” evidenced by various statutory factors. (§ 2032, subd. (a).)
We highlight four cases where the court reversed attorney fee awards with directions for the trial court to consider statutory factors. In each case, the record failed to show that the trial court considered the proper factor or factors. However, none of the cited cases required the trial court to set forth a checklist of all the statutory considerations that might form the basis of its reasoning.
In Cheriton, supra, 92 Cal.App.4th 269, the trial court denied wife’s request for need-based attorney fees based on an “absence of proof,” but the record did not reveal the court’s reasons for failing to consider billing records submitted after the hearing. (Id. at pp. 315-316, 320.) The appellate court reversed and directed the trial court to consider wife’s needs and husband’s ability to pay “together with all other appropriate factors” when ruling on the merits of wife’s attorney fee claim. (Id. at p. 320.)
In Keech, supra, 75 Cal.App.4th 860, wife claimed $35,000 in attorney fees which she incurred in the three months immediately prior to the hearing. (Id. at pp. 864, 869.) The trial court made express findings based on husband’s monthly income and expenses before ordering payment of child support, spousal support, and $25,000 in attorney fees which left husband with $93 “to pay all of life’s other expenses.” (Id. at pp. 865-867.) In reversing the attorney fee award, the court ruled that the trial court failed to consider two specific factors -- the respective litigation needs of the parties and whether the fees allegedly incurred were reasonably necessary. (Id. at p. 867.) The court explained that “[t]he record on appeal does not itself justify fees of [$25,000] during the time frame in question. . . . [T]he record on appeal as presently constituted is consistent with a relatively simple dissolution action, to which counsel either claims to have devoted an inordinate amount of time, or to have charged excessive rates, or a combination of the two, resulting in fee claims which at least facially appear out of proportion to the issues presented.” (Id. at p. 871.)
In Braud, supra, 45 Cal.App.4th 797, wife submitted a documented request for $9,000 in attorney fees. Husband did not dispute the reasonableness of the request. On appeal the court ruled that the trial court abused its discretion in awarding wife only $500 without explaining its “drastic reduction” in the amount claimed. (Id. at pp. 826-828.) It reversed, explaining that to support a need-based award, “the record must reflect that the trial court actually exercised [its] discretion, and considered the statutory factors . . . .” (Id. at p. 827.) The court continued: “There was no apparent reason for the trial court’s decision to award fees so grossly disproportionate to those actually charged to the client. Where, as here, there was no showing that the time spent or fees charged were unreasonable, and the parties’ respective financial circumstances clearly justify a higher fee award, such a drastic reduction in the requested amount cannot be sustained. [Citation.]” (Id. at pp. 827-828.)
In re Marriage of Cueva (1978) 86 Cal.App.3d 290, involved husband’s challenge of a $21,000 attorney fee award to wife. (Id. at p. 293.) Wife’s counsel claimed that an attorney fee award of less than three percent of the community estate was reasonable. (Id. at p. 295.) The appellate court reversed, focusing on the need to consider the nature of the litigation, time involved and skill required -- major factors in fixing a reasonable award. (Id. at pp. 296, 303-304.) The court ruled it an abuse of discretion to award fees based on a percentage of the $1 million community estate where the record contained no evidence indicating the nature and extent of the services rendered. (Id. at pp. 301, 303-304.) It noted that “[i]n many cases the trial court will be aware of the nature and extent of the attorney’s services from its observation of the trial proceedings and the pretrial and discovery proceedings reflected in the file.” (Id. at p. 301, fn. omitted.) However, Cueva involved a 20-minute default hearing following a series of discovery disputes. The court ruled that the record did not support the award. (Id. at pp. 300-301, 303-304.)
In the absence of stated reasons for the attorney fee award in this case, we presume the court made the findings necessary to sustain the judgment (order). (Denham, supra, 2 Cal.3d at p. 564.) The record supports our implied findings. The parties cited the statutory requirements of sections 2030 and 2032 in the papers submitted to the court. The court also had up-to-date income and expense declarations which showed Father’s income was significantly higher than Mother’s. Unlike the Cueva court, the court in this case had a record of the acrimonious Yolo County proceedings dating back to 2004 and had personally presided over the case for more than a year. With a record showing “the respective incomes and needs of the parties” (§ 2030, subd. (a)(2)), the length and complexity of the litigation, and the nature and extent of services rendered by Mother’s attorney, the court reduced Mother’s attorney fee request from $39,000 to $31,000 -- a clear demonstration of its exercise of discretion.
In concluding there was no abuse of discretion, we also reject Father’s argument that unspecific billing statements and the court’s possible lack of experience in family law matters call the court’s ruling into question. Father fails to describe how the billing statements were insufficient. Error must be affirmatively shown. (Denham, supra, 2 Cal.3d at p. 564.) The record does not support Father’s suggestion that the court was not sufficiently informed of the nature and extent of services rendered by Mother’s counsel.
DISPOSITION
The judgment (order) is affirmed. Mother shall recover costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
We concur: SCOTLAND, P. J., DAVIS, J.