Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BD472243, Gail Ruderman Feuer, Judge.
Trope & Trope, Thomas Paine Dunlap and Elizabeth Stuart Perry for Respondent.
Law Offices of Richard A. Marcus and Richard A. Marcus; Silverman & Associates and Robert B. Silverman for Appellant.
PERLUSS, P. J.
Robert Silverman appeals from an order of the trial court awarding $30,000 in pendente lite attorney fees to his wife, Cynthia Silverman, in their contested dissolution proceeding. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Cynthia filed a petition for dissolution on September 6, 2007. According to the petition, Cynthia and Robert married on November 20, 1997 and separated on September 5, 2007. They are the parents of a daughter, Brianna, who was born in 1995. In November 2007 Cynthia, now represented by the law firm of Trope & Trope, entered into a stipulation with Robert providing Cynthia with primary physical custody of Brianna and affording Robert visitation on Thursday afternoons and evenings and over night on Saturdays. In January 2008 the parties also stipulated to a monthly support payment of $7,000 pending outcome of the dissolution proceeding.
Because Cynthia, Robert and their daughter all share the same last name, we refer to them by their first names, not out of disrespect but for convenience and clarity. (Cruz v. Superior Court (2004) 120 Cal.App.4th 175, 188, fn. 13.)
At the time she filed the petition, Cynthia was represented by the law firm of Morrison, LaRossa & Price. Robert, an attorney representing himself, filed a separate petition for dissolution on the same day. At a hearing on April 21, 2008 the trial court issued an order deeming Robert’s petition an answer to Cynthia’s petition.
On February 25, 2008 Cynthia filed an application for an order to show cause seeking $35,000 in attorney fees and $10,000 to retain a forensic accountant to assist in valuing Robert’s law practice and his income. She also sought an order compelling Robert to respond to discovery and to produce a completed preliminary declaration of disclosure pursuant to Family Code section 2104. Finally, she sought an award of sanctions based on the fees she had incurred in filing the order to show cause.
Statutory references are to the Family Code.
In support of the order to show cause, Cynthia and her counsel submitted declarations establishing Cynthia was 51 years old, lacked a college education and had been a full-time homemaker since Brianna’s birth. Because of ongoing medical conditions, she was unable to obtain employment and had no independent income or property. During the marriage, she and Robert had led an affluent lifestyle with monthly expenses in excess of $29,000. The family home was valued at $600,000; the couple owned luxury cars; and Brianna attended private school and received private instruction in ballet and French. Cynthia stated Robert maintained control over all family assets and did not disclose to her his income or liabilities during their marriage. After she filed her petition for dissolution, Robert failed to respond to formal discovery requests or provide mandatory income disclosures. Although he claimed in a letter to Cynthia’s counsel a monthly income of approximately $15,000, Cynthia argued the unsubstantiated figure was too low. Since paying a $4,000 retainer to Trope & Trope, Cynthia had incurred more than $13,000 in attorney fees, much of which was due to Robert’s refusal to cooperate with her counsel or respond to requests for information.
Robert failed to file an opposition to the order to show cause until the day of the hearing. His opposition was limited to the assertions the couple’s monthly marital expenses had not been as high as $25,000; he had no ability to hire his own attorney or to pay for Cynthia’s attorneys; and the fees reported by Trope & Trope were “outrageous.” He also submitted an incomplete income and expense declaration estimating his monthly income at $13,000 with $12,800 in expenses, including his stipulated support obligations. He listed liabilities of more than $30,000 to his parents for education loans and a $140 monthly payment to his parents for his car. Although Robert did not list any tax liabilities, he indicated he had not paid taxes since 2003.
Asked by the trial court for the reason his filing was untimely, Robert stated he was a lawyer and had been “busy,” an excuse the court properly dismissed as inadequate. In response to the court’s questioning on the issue of attorney fees, Robert stated, “[T]here’s just simply no assets available. I mean, the current IRS debts just to the federal is over $30,000.... I haven’t paid the rent for the house that she lives in; I haven’t paid my office rent. It’s just because I make sure that the child support and spousal support gets paid first. And then everything else gets put on hold.... [T]he problem I have is one of the income—that there’s just simply no assets available to, one, even hire my own attorney to handle this.”
In response, the court stated, “[H]ere’s the problem I have, Sir,... you filed an income and expense declaration that doesn’t tell me your assets. So I can’t tell. You filed no response.... You have not filed [a] preliminary declaration of disclosure.” After further interchange with Cynthia’s counsel, the court found an imbalance between Cynthia and Robert’s income giving Robert the superior ability to pay and, based on Robert’s failure to supply complete information, ordered Robert to pay $30,000 in attorney fees. The court denied Cynthia’s request for an order relating to outstanding discovery, directing Cynthia to file a motion to compel to obtain such relief. Robert filed a timely notice of appeal.
The court ordered $10,000 paid within 30 days, with additional monthly payments of $5,000 until the full $30,000 had been paid.
CONTENTIONS
Robert contends the trial court abused its discretion in ordering him to pay Cynthia’s attorney fees because it lacked adequate evidence of his ability to pay, failed to consider his existing support payments and failed to make the required statutory findings. Robert also argues the fees incurred were unreasonable.
DISCUSSION
1.Standard of Review
Section 2030, subdivision (a)(1), provides: “In a proceeding for dissolution of marriage... 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,... 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.” “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.” (§ 2030, subd. (a)(2); see also § 2032, subds. (a)-(b).) “[A] motion for attorney fees and costs in a dissolution proceeding is left to the sound discretion of the trial court. [Citations.] In the absence of a clear showing of abuse, its determination will not be disturbed on appeal. [Citations.] ‘[The] trial court’s order will be overturned only if, considering all the evidence viewed most favorably in support of its order, no judge could reasonably make the order made.’” (In re Marriage of Sullivan (1984) 37 Cal.3d 762, 768-769.) However, “although the trial court has considerable discretion in fashioning a need-based fee award [citation], the record must reflect that the trial court actually exercised that discretion, and considered the statutory factors in exercising that discretion.” (In re Marriage of Braud (1996) 45 Cal.App.4th 797, 827.)
Section 2032, subdivision (a), mandates that any award must be “just and reasonable under the relative circumstances of the respective parties,” and subdivision (b) directs the court to “take into consideration, to the extent relevant, the circumstances of the respective parties described in Section 4320.” Section 4320 lists a number of factors, including but not limited to, earning capacity (subd. (a)); ability to pay, taking into account such things as assets and standard of living (subd. (c)); respective needs (subd. (d)); obligations and assets (subd. (e)); age and health (subd. (h)); and the overall balance of hardships (subd. (k)).
2.The Trial Court Did Not Abuse Its Discretion in Awarding Pendente Lite Attorney Fees to Cynthia
In a recent opinion related to this recurring marital dissolution issue, Presiding Justice Sills of the Fourth Appellate District, Division Three, in his own distinctive manner, stated, “It may be a little surprising to some, but the purpose of section 2030 is not the redistribution of money from the greater income party to the lesser income party. Its purpose is parity: a fair hearing with two sides equally represented. The idea is that both sides should have the opportunity to retain counsel, not just (as is usually the case) only the party with greater financial strength.” (Alan S. v. Superior Court (2009) 172 Cal.App.4th 238, 251 (Alan S.).) In Alan S. the Court of Appeal reversed the trial court’s award of $30,000 in pendente lite attorney fees, concluding the court took a “truncated approach” to the matter and failed to consider the factors relevant to the divorcing couple’s circumstances and the reasonableness of their conduct during the litigation. (Id. at pp. 255-256.) In the view of the Court of Appeal, the trial court had accepted at face value the contention Alan S. earned more money and could more readily bear the burden of attorney fees, even though his financial obligations had sapped his resources to the point he could not afford to retain counsel for himself. As the court observed, “There was, in short, much the trial court should have explored, but did not.” (Id. at p. 256.)
“The issue, generally framed, is how courts are to achieve, particularly in low and middle income cases, the legislative goal of assuring ‘each party has access to legal representation to preserve each party’s rights....’ (Fam. Code, § 2030, subd. (a)(1), italics added; see also Fam. Code, § 2032, subd. (b) [goal that ‘each party, to the extent practical,... have sufficient financial resources to present the party’s case adequately’ (italics added)]; Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2008) ¶ 5:180, p. 5-75 (rev. #1, 2007)... [‘Several Family Code statutes authorize pendente lite attorney fee awards in various types of Family Code proceedings. In each case, the purpose is to ensure, to the extent possible, that the litigating parties are on an equal footing in their ability to present their cases....’].)” (Alan S. v. Superior Court (2009) 172 Cal.App.4th 238, 241-242, fn. omitted.)
Robert’s arguments parallel those of Alan S.’s. Robert contends the trial court abused its discretion because it failed to consider the relevant statutory factors or the fact he was already paying $7,000 in monthly support. The absence of a completed income and expense declaration, according to Robert, rendered the trial court’s order inherently unreasonable.
We disagree. Robert’s position is undercut by his recalcitrant and oppositional conduct in the litigation. Unlike Alan S., who diligently documented his limited financial resources and expense obligations, Robert deflected all attempts by Cynthia and her counsel to verify his income and expenses, assets and liabilities. According to Robert, who, before the couple’s separation, had funded the family’s affluent lifestyle through his law practice, his income stream had diminished and he had unquantified tax liabilities resulting from his failure to file income tax returns since 2003. Yet, in a gross breach of the fiduciary obligation of disclosure he owes his wife (see In re Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1475-1478), Robert failed to document any of these assertions, failing to provide—either formally or informally—any proof of income, expenses, assets or liabilities. Moreover, Robert, a practicing attorney, ignored discovery requests (presumably waiving all objections) and failed to file a timely opposition to the order to show cause.
Whatever the family’s monthly expenses truly were, the trial court had before it Cynthia’s uncontested declaration those expenses approached $30,000. Rather than submit formal opposition to the order to show cause, or even valid objections to the statements made by Cynthia, Robert simply asserted her calculations were incorrect.
“The fiduciary obligations of spouses to each other are set forth in section 721, and are made specifically applicable during dissolution proceedings by section 1100, subdivision (e). ‘Each spouse shall act with respect to the other spouse in the management and control of the community assets and liabilities in accordance with the general rules governing fiduciary relationships which control the actions of persons having relationships of personal confidence as specified in Section 721, until such time as the assets and liabilities have been divided by the parties or by a court. This duty includes the obligation to make full disclosure to the other spouse of all material facts and information regarding the existence, characterization, and valuation of all assets in which the community has or may have an interest and debts for which the community is or may be liable, and to provide equal access to all information, records, and books that pertain to the value and character of those assets and debts, upon request.’ (§ 1100, subd. (e).)” (In re Marriage of Feldman, supra, 153 Cal.App.4th at p. 1476, fn. omitted.) “This disclosure duty is ongoing, as section 2100 provides that ‘each party has a continuing duty to immediately, fully, and accurately update and augment that disclosure to the extent there have been any material changes so that at the time the parties enter into an agreement for the resolution of any of these issues, or at the time of trial on these issues, each party will have a full and complete knowledge of the relevant underlying facts.’ (§ 2100, subd. (c), italics added.)” (In re Marriage of Feldman, at p. 1477.)
Robert contends none of these failings is dispositive because the court’s hands were tied by the absence of reliable information with which to evaluate the parties’ respective abilities to pay for attorney fees. As Presiding Justice Sills’s equally colorful colleague Justice Bedsworth might say, “hogwash.” (See Wells Fargo Bank Minnesota, N.A. v. B.C.B.U. (2006) 143 Cal.App.4th 493, 502 [“That is—not to put too fine a point on it—hogwash.”].) Robert’s willful disregard of reasonable litigation conduct removes him from the scope of the reasoning in Alan S. Robert bore the burden of responding in a proper and timely manner to the order to show cause and his pro per status did not justify his failure to cooperate in the litigation. Indeed, Robert himself is largely responsible for the quantum of fees incurred by Cynthia. (See In re Marriage of Dick (1993) 15 Cal.App.4th 144, 166-168 [$750,000 attorney fee award affirmed under predecessor of § 2032 because the record “reveals a case of stunning complexity, occasioned, for the most part, by husband’s intransigence”]; In re Marriage of Kozen (1986) 185 Cal.App.3d 1258, 1264 [husband’s “stonewalling” during discovery and other pretrial proceedings necessitated wife’s incurring concededly “obscene” fee obligations].)
In conclusion, Cynthia properly established her own inability to pay for an attorney to force Robert to honor his marital and parental obligations. Now aged 51, Cynthia has been a caregiver for their daughter since 1995 and has only a high school education. She has no independent assets and relied exclusively on Robert (who disclosed nothing about the family’s finances) during their marriage. Having no way to verify Robert’s reciprocal claim of impaired resources, the trial court properly awarded fees to Cynthia and attempted to reduce the impact on Robert by establishing a payment schedule over the course of several months. There was no abuse of discretion.
3.The Fees Awarded Were Reasonable
In awarding attorney fees under section 2032, the trial court is not required to rely on any particular type of evidence and may even rest an award on its own observations in determining the reasonable value of counsel’s services. (See In re Marriage of McQuoid (1991) 9 Cal.App.4th 1353, 1361 [“[d]irect evidence of the reasonable value of an attorney’s services need not be introduced ‘because such evidence is necessarily before the trial court which hears the case’”]; In re Marriage of Dick, supra, 15 Cal.App.4th at p. 167 [in addition to declarations and billing statements, trial court’s attorney fee award supported by size of the record and unnecessary complexity of case]; Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2007) ¶ 14:210, p. 14-50.16 [“declarations, testimony or other direct evidence of the reasonable value of counsel’s services is not essential to support an attorney fee award”].)
Robert’s objection to the amount of fees awarded by the trial court—whether based on previously incurred fees or future fee projections—is groundless. The requested award was supported by declarations and billing statements demonstrating exactly how and for what purpose the fees were generated. If Robert believed the billing statements were inadmissible, he could have lodged specific objections to them, which he did not. Moreover, having been responsible for generation of the bulk of the fees already charged to Cynthia, Robert himself holds the key to the reasonableness of future fees—transparency and cooperation. (See In re Marriage of Dick, supra, 15 Cal.App.4th at pp. 166-168; In re Marriage of Kozen, supra, 185 Cal.App.3d at p. 1264.) Again, there was no abuse of discretion.
DISPOSITION
The order awarding attorney fees to Cynthia Silverman is affirmed. Cynthia is to recover her costs on appeal.
We concur: WOODS, J., JACKSON, J.