Case of the Month Archive

Trial court erred by failing to hold a hearing and resolve wife's request for pendente lite attorney fees for over a year and did not address attorney's fees until the end of trial. . .

In a reversal, the Fifth District held that trial court erred by waiting until after the conclusion of dissolution action to address wife's request for pendente lite attorney fees; error was prejudicial since wife, who was pro per, "bungled" the admission of a grant deed into evidence, which resulted in her losing on a transmutation issue.

Dawn Bear Knox and Blair Becker Knox married in June 2005. In January 2018, Dawn filed a dissolution action against Blair. The parties had no minor children, so the only issues for litigation were spousal support, division of assets, and attorney's fees. On May 10, 2018, Dawn filed her first request for temporary spousal support, for pendente lite attorney fees, and for sale of the family residence. With respect to her request for attorney's fees, Dawn specifically requested $7,500, the amount she paid to retain her attorney. In support of her request, Dawn filed an income and expenses (I&E) declaration stating that she had $21,000 in her checking and savings accounts, monthly income of $6,178, monthly expenses of $3,130, and no debt. Blair's responsive declaration stated that he had the ability to pay spousal support, his gross monthly income from employment was $10,996, and his monthly income from investments was $6,432. The hearing for Dawn's request for pendente lite attorney fees was initially set for June 13, 2018, but the parties stipulated to several continuances, most of which were due to the unavailability of Blair's attorney. Due in part to these continuances, Dawn's request for pendente lite attorney fees remained pending throughout the dissolution action and her request for attorney's fees was not heard until after the conclusion of trial.

Meanwhile, Dawn struggled to afford representation throughout the proceedings. When Dawn first filed the dissolution action, she was unrepresented, having paid a legal document assistant $599 to prepare the petition. Later, at separate times, she was represented by counsel. After her second attorney withdrew on March 14, 2019, due to Dawn's inability to afford his services, Dawn continued throughout the remaining proceedings pro per.

Trial was conducted on three days over a three-month period. Day one of trial began May 23, 2019, with Dawn informing the trial court "'I've gone through two attorneys now. That's why I'm now representing myself. I can no longer afford it.'" At various times throughout the trial, Dawn brought up her need for spousal support. This included a second request for temporary spousal support that Dawn filed two days before trial began. Her second request for spousal support was heard as a separate hearing between day one and day two of trial. At this hearing, Dawn explained that she had been laid off on May 12, 2019, and, as a result, she now had an urgent need for spousal support. The trial court noted that "'given that we're going to [the second day of trial] in approximately two weeks and you have over 20,000 in savings, any order that I would make right now is going to change in two weeks. It doesn't make sense to go through the factors today when you have 20,000 in savings and you're not going…to be evicted.'" At that time, neither the trial court nor the parties mentioned that Dawn's first request for spousal support and pendente lite attorney fees filed in May 2018 had not been resolved.

One issue at trial involved the characterization of community interest in the family residence. Such resolution required the trial court to determine whether the parties' first home after their marriage had been transmuted from Blair's separate property to community property. Blair had purchased the house in question in September 1995 as his separate property, but on December 12, 2006, Blair recorded a grant deed that stated Blair, as a single man, granted the property in question to "'[Blair and Dawn], husband and wife as joint tenants.'" Although the deed also stated "'This is a bonafide gift and the grantor received nothing in return,'" Dawn alleged that she used $40,000 of her separate funds to pay off the mortgage on the home. On the second day of trial, Dawn, acting pro per, filed her supplemental trial brief that included an attached copy of the deed as an exhibit. However, Dawn did not mark the deed as a trial exhibit and did not offer it into evidence at any time during trial. With respect to this property, Blair acknowledged during his testimony that "'I don't remember how-who initiated changing it, but it was changed to joint names.'"

At the conclusion of trial, the trial court awarded Blair the marital residence and determined 88% of the value of the home ($359,000) to be Blair's separate property and the remaining 12% ($49,000) to be community property. In so ruling, the trial court found that since the grant deed was not admitted into evidence and Fam C §852(a) provides that transmutation cannot occur without a written, unambiguous expression of intent to transfer interest in the property, the separate property character of the first marital home was not altered even though Blair acknowledged the change in title during his testimony. The trial court also awarded Dawn 12 months of spousal support (the first six months at $1,000 per month and the final six months at $550 per month). Finally, the trial court denied Dawn's request for attorney's fees since "'[Dawn] did not put on any evidence regarding the fees'" and "'[t]he court was not provided with declarations of the attorneys that represented [Dawn].'" Dawn appealed, and the Fifth District reversed.

Reviewing legislative history and findings of Fam C §2030. . .
Noting that this issue has not been addressed before in a published opinion, the justices first examined the statutory text of Fam C §2030, enacted in 1993, and several relevant amendments and the legislative history and findings behind those amendments. As previously enacted, the award of attorney's fees during the pendency of dissolution proceedings were "'in the sound discretion of the trial court.'" But 2004 and 2010 amendments "curtailed the broad discretion previously granted to family courts." The current version of Fam C §2030 provides "that family courts 'shall ensure that each party has access to legal representation, including access early in the proceedings,' by awarding pendente lite attorney fees, when certain statutory conditions are met." Turning to the legislative history, the panel noted that in 2004, the Legislature amended the statutory text of Fam C §2030 to include "shall ensure," which imposed a mandatory obligation on the courts to order attorney's fees where statutory conditions were met, as well as added the phrase "during the pendency of the proceeding." The 2004 amendment also added paragraph (2) to Fam C §2030(a), which refers to payment of "a reasonable amount to allow the unrepresented party to retain an attorney in a timely manner before proceedings in the matter go forward." Lastly, the justices noted that a 2010 amendment included the phrase "including access early in the proceedings," which means that the trial court may not unreasonably delay its ruling on a request for pendente lite attorney fees.

In enacting the 2010 amendments, the Legislature noted the rising number of self-represented litigants in family law cases and found that "'[u]nder the current system, the parties, who are most often self-represented, must take the initiative to obtain orders and judgments in a complicated judicial process that very few litigants can understand, and they often fail to take the next step toward completing the case.'" The Legislature made specific findings relating to pendente lite attorney fees, including "Representation for parties can be significantly improved in some of these cases if courts make early need-based attorney's fee awards."

The 2010 amendments were, in part, the Legislature's response to the recommendations of the Elkins Family Law Task Force, which was formed by the Judicial Council of California after the California Supreme Court's decision in Elkins v. Superior Court (Elkins) (2007) 41 Cal.4th 1337, 63 Cal.Rptr.3d 483. The Elkins Report recommended that "Courts should give careful attention to making early needs-based attorney fee awards rather than deferring the issue to trial. This would minimize the imbalance in ability to hire counsel between litigants in a family law case."

Interpreting the text of Fam C §2030. . .
In its interpretation of Fam C §2030, the panel noted several conclusions. First, the phrase "shall ensure" imposes a mandatory duty on the trial court to ensure that parties have equal access to legal representation. Second, this obligation arises only once a request is made. In other words, the trial court does not have a sua sponte duty to address a party's need for pendente lite attorney fees. Third, a party makes such a request for purposes of Fam C §2030 by making a written request for pendente lite attorney fees by a noticed motion or an order to show cause. This includes complying with Cal Rules of Court, rule 5.427(b), which requires a party to file and serve a request for order (Judicial Form FL-300), a request for attorney's fees and costs attachment (Judicial Council form FL-319), a current I&E declaration (Judicial Council form FL-150), and a supporting declaration for attorney's fees and costs attachment (Judicial Council form FL-158) or comparable declaration. And finally, although the Family Code does not expressly impose a deadline for hearing a request for pendente lite attorney fees, the justices inferred from the legislative history and findings that trial courts must hear the request "with reasonable promptness." The justices further noted that this means that trial court's discretionary authority to grant continuances is limited.

Applying the statutory interpretation to the present case. . .
The panel then turned to Dawn's argument that the trial court erred by failing to rule on her request for pendente lite attorney fees and, instead, waiting until after the trial to address attorney's fees. Blair, meanwhile, argued that Dawn was not entitled to attorney's fees because she did not comply with Cal Rules of Court, rule 5.427(b)(2), that she failed to present evidence regarding attorney's fee during trial, and the trial court correctly denied Dawn's request due to this absence of evidence.

The justices agreed with Dawn. First, they concluded that she made a request for pendente lite attorney fees on May 10, 2018, when her first attorney filed the request for temporary spousal support, for pendente lite attorney fees, and for sale of the family residence. This request triggered the trial court's mandatory duty to address the issue of pendente lite attorney fees "with reasonable promptness." Second, the justices concluded that the trial court violated its duty by failing to address the issue of attorney's fee until after trial had ended. Although the justices did not identify a specific date when the trial court violated its duty to address Dawn's request for attorney's fee, they noted that at a minimum, the court should have heard her request within 15 days from May 23, 2019, the day that she informed the court that she could not afford an attorney.

The justices next found that the trial court's error was prejudicial. By the time the trial court addressed attorney's fees, Dawn was unemployed and representing herself. Dawn further demonstrated prejudice since she "bungled" the transmutation argument during trial. The justices found that if Dawn had been represented by counsel, it is reasonably probable that the grant deed would have been offered and admitted into evidence and that she would have prevailed on the transmutation issue. In so holding, the panel also dispensed with Blair's arguments, first noting that despite the deficiencies that Blair identified in Dawn's request for attorney's fees, if the issue would have been timely heard, she would have had time to correct any defects by filing a new request. Neither does the fact that Dawn had $21,000 in savings necessarily preclude her request for attorney's fees. Fam C §2032(b) provides in relevant part that "[t]he 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 requests."

Accordingly, the Fifth District reversed trial court's judgment on reserved issues and remanded the matter.