Recent Posts in Attorney Fees Category

Marriage of Guilardi (11/7/11) 200 Cal.App.4th 770

• Rule 5.93 relating to attorney fee and cost applications, which identifies the steps for a litigant or court to take in requesting, responding to a request for, and awarding fees and costs based upon financial need;

• Approve optional form FL-157,Spousal or Partner Support Declaration Attachment, for litigants to use, as an attachment to the Request for Attorney's Fees and Costs Attachment (form FL-319), Declaration for Default or Uncontested Judgment (form FL-170), Application for Order (form FL-310) and Order to Show Cause (form FL-300) or Notice of Motion (form FL-301) to request that the court award, modify a request, or deny a request for spousal or domestic partner support and to provide supporting facts that address the issuesidentified in Family Code section 4320, which are also required in a request for attorney's fees and costs;

• Approve optional form FL-158, Supporting Declaration for Attorney's Fees and Costs Attachment , for litigants to use, as an attachment to Request for Attorney's Fees and Costs Attachment (form FL-319) or Responsive Declaration to Order to Show Cause or Notice of Motion (form FL-320), to provide the court with additional background information either in support of or in opposition to a request for needs-based attorney's fees and costs, such as any history of child support, spousal or partner support, or family support orders;

• Approve optional form FL-319, Request for Attorney's Fees and Costs Attachment, for litigants to use, as an attachment to the Application for Order (form FL-310) and Order to Show Cause (form FL-300) or Notice of Motion (form FL-301) , to request that the court award needs-based attorney's fees and costs;

• Approve optional form FL -346 Attorney's Fees and Costs Order Attachment , for the court to use, as an attachment to Findings and Order After Hearing (form FL-340), Judgment (form FL-180), or Judgment (Uniform Parentage-Custody and Support) (form FL-250), to identify court findings and orders with respect to needs-based attorney's fees and costs; and

• Revise mandatory form FL-340, Findings and Order After Hearing , to improve organization and numbering, add clarifying language in item 1, add a reference to "parenting time" in item 2, add "Other" check boxes in items 2-6, add a check box for the court to attach new form FL-346 (see item 5 of this recommendation) in item 6, and add a check box for the court to order a continuance in item 9.

Special Circumstances in Child Support Cases
Involving an Extraordinarily High Earner

IRMO Cryer (8/29/11) 198 Cal.App.4th 1039

Jon and Sarah were married, producing a son together, and later divorced. Sarah subsequently had a second child by a different marriage, which also ended. Although Mom had primary physical custody of the child with Jon for which she received "substantial" child support of $10,000 each month and a 65 % "timeshare", she began to suffer some difficulties that first resulted in Jon's ex parte application to modify the prior agreed upon orders to sole custody in his favor in May, 2009. Jon alleged that she had left his child unsupervised. The family law court denied that ex parte request but admonished Sarah not to leave her children unsupervised. Later that same month CPS became involved when her younger child suffered an injury at Sarah's home. A dependency proceeding was filed against her by the Department of Children and Family Services, which resulted in each child being placed with their respective fathers. There is no commentary in the decision about whether the fathers are working together to preserve and protect the sibling bonding.

When a dependency proceeding is filed by child protective services there are strict rules governing procedure that are generally designed to move the proceeding quickly towards determining whether jurisdiction properly exists, in order to ensure that the public policy favoring reunification with the problem parent is honored. However, Sarah's dependency proceeding moved extraordinarily slowly. In the meantime Jon battled her in Judge Pellman's courtroom. In addition, she was also likely defending against the claims of her second husband over custody of the younger child. We don't know what the exact alleged facts are over the circumstances giving rise to the dependency proceeding, but it is obvious that Sarah had her hands full with "two and a half men" - two former husbands and a young child.

Once his son was placed into his custody, Jon filed an application to modify the $10,000 in monthly support to zero since, after all, the child had temporarily been placed with him. Did he hope this might be the killing stroke (coup de grace) that would bring Mom to her knees, forever? There are litigants who feel that if they seize upon the other party's moment of weakness they will remain in power for the remainder of a child's minority, and a lawyer might reasonably advise this tactic under the aegis of "zealous representation". Jon's extreme request was his first mistake. When people want it all they are sometimes sorely disappointed.

Mother argued that $10,000/month was no burden to Jon because that amount was only 3 percent of his income at the time. She urged that the outcome of the dependency proceeding was uncertain, temporary, and subject to change and that without a steady child support order she would have no money to pay her mortgage, car payments, or any other bills. She pointed out that such a result could never serve the child's best interests.

This is where an outstanding trial judge makes all the difference, because superficially Jon's contentions were reasonable.

Prior to the hearing the parties exchanged income and expense declarations. Jon's "stated income" was alleged as $327,000 monthly when averaged over three years, he held $7 million in liquid assets, and monthly expenses of $29,000. By the way, if people want to go public about their affairs, litigation is the right choice. Sarah had "negligible" assets and overhead expenses of $10,000 monthly, not including attorney fees.

A "guideline" child support order using the "Dissomaster" based upon mother's reduced timeshare would have resulted in her favor of a modified amount of $1,141/month. Sarah argued she would lose everything if that was her only income.

The matter was heard on November 2, 2009. Judge Pellman declined to reduce Jon's child support to zero, even though Sarah had little custodial time under the pending dependency court orders, but she did reduce it significantly from $10,000 to $8,000 monthly. The trial court noted that since Sarah's custody arrangement could be modified by the dependency court in short order (which was expected to be the situation) and DCFS could liberalize Mom's visitation schedule at any time, and therefore found that the minor's best interest was best served if the boy could return to the same home that he had shared with his mother prior to the proceedings, and further that it was important for both the mother and child that she have the ability to have regular and consistent contact with him. She ordered the father to pay $20,000 in attorney fees to Sarah's attorneys.

Jon was not satisfied with this ruling. He immediately filed a motion for reconsideration together with a separate Order to Show Cause seeking an accounting of how all child support funds he'd paid had been used, alternatively requesting that these funds be placed into a trust account for the 'direct benefit' of his son. Evidently he believed that paying a mortgage, and having a car, only benefited Sarah and not the boy. Judge Pellman denied his requests (after making some technical corrections to her orders) and awarded that Sarah receive another $5,000 in attorney fees, which was likely only a portion of what she actually incurred.

Three months later Jon filed supplemental authorities prior to a review hearing that had been set, arguing that the dependency proceedings had still not be resolved and that Sarah's visitations had not been "liberalized" as the Court had anticipated. Further, he argued that Sarah wasn't looking for a job and that she was the one benefitting from the child support payments and therefore the Court should stay child support until such time as Sarah's timeshare was increased by the dependency court. This would have had the effect of "starving" Sarah out and really speaks volumes to the level of resentment that Jon was exhibiting - made ever more poignant for us by reflecting upon the degree of privilege from the extraordinary earnings that he enjoys. Again, a trial and appellate court would be reasonable in questioning his motives based upon all the economic circumstances, and in protecting the disadvantaged party consistent with the law. Which is exactly what happened in both courts. As a further expression of his overreaching (or that of his lawyers), Jon filed a new income and expense showing $474,861 in monthly earnings that averaged his income over the prior three years. While it is true that there is no fixed rule in what span of time courts review in determining income, still they are required to look to relevant evidence. Often times the prior 12 months provides this yardstick. 

Sarah's counsel rejoined that Jon's income over the past 12 months was $791,666/month. Sarah was apparently the tick on the back of the elephant. In addition, Sarah's visitation had been liberalized to include home visits. Sarah argued it would be nice for the boy to have a home where these visitations could occur. Also, she had monthly expenses of $13,271 and no income beyond CS.

On May 10, 2010, Judge Pellman ruled that no changed circumstances existed from the time of her earlier orders to modify support further. There still was no "exit order" from the dependency court. The proceedings had not resolved. Moreover, the finding was unavoidable that Sarah would lose her home without support monies to pay the mortgage. The judge ordered Jon to pay another $40,000 in fees to Sarah's attorney.  

Family Code section 4057(b) is an important provision that cuts both ways in terms of adhering to or departing from "guideline" support. That section states that the amount of child support that is presumed under our state-wide formula may be rebutted by showing that the amounts otherwise rendered by the guideline "would be unjust or inappropriate in [a] particular case." Increasingly attorneys for prime time parents are directing trial Courts to this section to support their claims that when custody is cut-off with the other parent, or severely restricted, that support should be zeroed out. For instance, the argument is frequently made, and sometimes accepted, that where the low earner parent has a de minimis timeshare that would otherwise result in some child support to them based upon the parties' respective incomes, that the de minimis timeshare parent should not receive child support because the prime time parent bears the substantial bulk of the financial burden. The problem with this analysis is that child related expenses for living accommodations are a fixed expense. Marriage of Cryer implicitly recognizes this reality, and Judge Pellman apprehended the paradox clearly.

Jon apparently made this argument - he told the appellate court that Judge Pellman had abused her discretion because "he had nearly total responsibility for the child." Indeed, Justice Boren agreed that "under normal circumstances, such a deviation from guideline support would be an abuse of discretion." But given Jon's income, these were not normal circumstances but not necessarily for the reasons that Jon urged. "The trial court was faced with a pending and uncertain dependency case over which it had no control...." "The trial court also faced the strong possibility that visitation and custody arrangements could change quickly,..." "Furthermore, while one parent enjoyed an extraordinarily high income and could easily afford to pay monthlyl child support of $8,000 or $10,000, the other parent had essentially no income, and would be unable to maintain a household of the sort to which the child was accustomed absent substantial support." Therefore, Judge Pellman did not abuse her discretion. 

The Court noted that although the child support formula, "a complicated algebraic" equation, is often referred to as "guideline" the term is "misleading. Instead, the formula yields "presumptively correct" numbers in all cases which may be rebutted by the particular circumstances of the parties and of the children. In this case the guideline presumption was rebutted consistent with the state policies that:

• Placing the interests of child has been legislatively declared to be the state's top priorty
• A "parent's first and principal obligation is to support his or her minor children according to the parent's circumstances and station in life
• Each parent should pay for the support of children according to his or her ability
• "Children should share in the standard of living of both parents and child support may therefore appropriately improve the standard of living of the custodial household to improve the lives of the children."

Here "an order that resulted in [the] child's spending time with his father in an opulent abode and time with his mother in a low-rent apartment would have conflicted with principles of Family Code section 4053."

Moreover, while the father "may have found the situation unfair, the primary focus must remain on the child's wellbeing, not the parents' feelings" about money. The revised $8,000/month child support order was only from 1 to 2 1/2 percent of Jon's mnothly income. Judge Pellman's order therefore also served to minimize the harm that might inure to the parties' son had each parent merely supplying living conditions based upon their respective incomes, without help from the other. Finally, the appellate court dismissed Jon's argument that he should not be obligated to pay $8,000 month where the mother's Income and Expense declaration showed that she only paid $4,999 in monthly housing relating expenses. The trial Court had discretion to look the broad view of the parties circumstances and was not required to fix a number based upon any one element of their total expense package.

Irmo Cryer is also an important case for ordering attorney's fees to financially weaker parties. Jon argued that the initial award of $20,000 was more than the mother's attorney had asked for in her moving declaration, but Mom's attorney made an oral request for a greater suma that the hearing based upon fees that had increased since the moving declaration had been filed, and her papers had noted that further fees would be incurred. Next Jon argued that he had won a motion for reconsideration that made him a prevailing party, and that he should not therefore been required to pay Mom's fees. Not so said the appellate court, "[b]ecause of the importance of ensuring that the parties both have the ability to present their cases effectively, attorney fees may be awarded against a prevailing party in family law proceedings."

I have had the great good fortune to have met Judge Pellman, and applaud her efforts and her well reasoned trial court decision!

• See whether the side has done everything the law requires of them in formulating your grounds for "good cause" under Rule 3.1332. If they have and your attorney failed to also comply, this is not good. If neither side did what is required to avoid irregularities, then that is better. If your side did comply but the side did not, that is best and you should point this out in your papers and in oral argument.

• Did both sides exchange the Final Declaration of Disclosure (there is more than one form) and FL-150's within 45 days of the first assigned trial date? The court does not have authority to have a trial when the parties have failed to comply with  Family Code section 2105.  Section 2106 clearly states this and Family Code section 2107(d) similarly states that it is not harmless error for trial courts to ignore FC §2105.

• Did the other side comply with all applicable Local Rules regarding trial? For instance, in Riverside County we have local Rule 5.0053 which mandates that a Trial Readiness Conference be set before trial, and at least in Indio that you (or your attorney) sign a form that you understood and will comply with what those rules require. Here is a link to Title 5 of the Riverside County Local Rules for Family Law cases. There may be similar rules in your jurisdiction. Rule 5.0065 discusses ex parte procedures in Riverside County, which generally includes the family law divisions in downtown Riverside, Hemet, Indio and Blythe.

• Draft a declaration that establishes good cause for your request - one that speaks to both justice and procedural issues. Anticipate what prejudice the other side will claim in opposition to your continuance request. Offer to ameliorate it if you can, in advance of the hearing on the ex parte.

• Rule 3.1332(d)(10) permits the court to impose "conditions" if it grants a continuance. These need to be reasonable of course. A frequent condition "no more continuances." Unreasonable requests may be that you are asked to waive a fundamental right that is a key issue in the case itself, i.e., a waiver of spousal support or an agreement that the court will have retroactive jurisdiction at the trial when it does occur to reach back and modify support to the first trial date. Offering to contribute to the other side's attorney fees incurred surrounding the rescheduling may be appropriate under certain facts.

• Before you file your ex parte, be sure to attempt to "meet and confer" with the other side in an effort to obtain a stipulation to continue instead, and in order to discuss how you might minimize their inconvenience and prejudice and to discuss possible reasonable conditions in advance of the hearing that would address those issues. Attach any confirming letters as an exhibit.

• Make your motion as short as possible and author it to read fast - not more than 10 pages including declarations, points and authorities, and exhibits. Judges have no time to read long winded stories.

• Be sure to notice all the parties for the ex parte. For instance, if there has been a Borson motion by either side that attorney (the former, Borson attorney) must also get notice of the hearing and the paperwork at the time you set the hearing.

• Hire your new attorney first and have them make the motion (which is costly in terms of the amount of the retainer they will reasonably require, since if the motion is denied that attorney knows he may be going into a trial that will take immediate emergency hours to come up to speed on).

• If  you haven't retained counsel yet and just want to continue a trial "to get counsel," you have a problem. While this excuse might work at the first hearing on an OSC or regular motion, it is unlikely to convince a judge who is managing his trial calender. 

Good luck with your new attorney!

Thurman W. Arnold, III, CFLS

Kevin Q. v. Lauren W., G043576 

The Fourth Appellate District has taken the next predictable step for litigants who hope to force the other side to contribute to exorbitant attorney fees incurred in certain high conflict family law cases. In so doing the law as it relates to the "relative circumstances" of the parties has been expanded to require that trial courts treat recurrent monetary infusions made by family members as "income" for purposes of interpreting the larger picture as it relates to attorney fee requests.  Previously that argument only existed within the realm of support obligations.

This is the first case that deals with what happens to attorney fees claims, in a situation family lawyers know is common where grandparents may be effectively encouraging (and often funding) a rancorous custody battle between their child and a now estranged former partner. Often in family court litigation there are not merely two individuals at war - their relatives have also been sucked into the trance. Many wealthier Americans are able to fund their child's litigation attorneys, or pay that child's household bills so that their need to find work is reduced. The parents of these children may feel forced to underwrite this status quo, effectively spending the family inheritance now. This may be the real subtext to the case.

Kevin Q. is a natural evolution of a doctrine which was recently stated in Marriage of Alter (2009) 171 Cal.App.4th 718. In Alter the trial court found gifts from the former husband's mother to be disguised as loans and imputed income to him for these gifts in deciding his ability to pay child and spousal support.

In Kevin Q. and Lauren W., published on May 13, 2011, the two parties incurred over $400,000 in lawyer's fees combined fighting over the paternity of a boy born outside of marriage. That these are warring high-conflict parents is made clear from the fact that this is their second published appeal (see Kevin Q. v. Lauren W. (2009) 175 Cal.App.4th 1119). Mother won the first appeal; Kevin prevailed here. Both sets of litigants have had the same attorneys throughout the proceedings. Kevin Q. is himself an attorney who practices family law in Orange County. As it turned out in the earlier case, Kevin is not the child's biological father but he alleged he was the child's psychological parent - the appellate ruling was that Kevin was not the boy's "legal" father. Unfortunately for the child, it sounds as though the man declared to be the legal father went "walkabout." I cannot tell whether Kevin continued to maintain any relationship with the child after he lost his paternity claim ('once a psychological parent, always a psychological parent?'). Perhaps the parties or their attorneys will weigh in this Blog so I can have the facts corrected.

The first decision is dated June 19, 2009. In December, 2009, Lauren moved the court to order that Kevin pay her outstanding attorney fees, including those from the earlier appeal. Kevin had contributed a total of $20,000 up to that point. Her attorney was Debra Opri of Opri & Associates; Kevin was represented by Marjorie G. Fuller and Marc S. Tovstein. Hence, all the litigation after the first decision appears to be over recovering attorney fees relating to it (but this is unclear). Fees upon fees?

In this round Attorney Opri filed a declaration stating that there was $55,754 due from the earlier work and that another $178,581 and costs of $6,589 was incurred thereafter. Hence, Lauren's total unpaid fees amounted to $227,746. Opri's hourly billing rate was $575 and her law clerk's was $225/hour. Of these fees, Attorney Opri had only received the $20,000 from Kevin plus $28,280, which included a payment of $15,600 from Lauren's father. Lauren urged that Opri had been effectively working for free. She owes her father "tens of thousands" and he was tapped out.

Kevin responded that Lauren's fees were unreasonable. She'd incurred $311,242 in fees for the entire case while his fees totaled $141,384. He complained that $4,200 in charges were for driving time for her attorney to travel from Beverly Hills to Orange County.

The matter was submitted for decision to the trial court, with the issue being identified as whether "attorney fees should be paid to [Lauren], based on need and ability to pay, as set forth in ... [Family Code] sections 2030, 2032, 7605, and 7640." Lauren urged that because the underlying dispute concerned paternity, Family Code section 7605 and section 7640 governed and that these statutes required a different analysis than under sections 2030 and 2032.

The court made the following findings: Kevin's average monthly income was $12,803. He had borrowed $50,000 from his relatives for attorney fees, which he was paying back at the rate of $150/month. He had monthly expenses of $13,320 leaving a deficit of $517.

Lauren had zero income from employment and had not worked since 2006, although she had a master's degree in psychology and is a certified chemical dependency counselor. She received $8,700 per month from "others." Her monthly expenses were $9,197, leaving a shortfall of $497.

Loans vs. Gifts From Family Members

A Shifting Judicial Response to Overzealous Advocacy:
Excessively Exuberant and Inflammatory Litigation Tactics
Will Not Be Tolerated in California

Marriage of Duris & Urbany

Be Careful What You Ask For,
and Consider Asking for Something Different

• Facilitating access to counsel by parties early on in the proceedings should be encouraged, and attorney fee awards help to accomplish this.  This is because cases are more likely to settle when people begin with a parity of access to resources, and settlement is always the ultimate goal.  FC §2030(a). 

• Courts must now make findings on whether an award for attorney fees and costs is appropriate, including based upon the question whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for the legal representation of both parties.  FC §2030(b).  This revision directs trial courts to apply a variation of the disparity of earnings analysis that was first expressed in Marriage of Hatch (1985) 169 Cal.App.3d 1213, an appellate decision that some trial courts had ignored.  Relative access measured in terms of such disparity is now key.  "Disparity" implies 'a great distance or gap.'

• The California Judicial Council is directed, by January 1, 2012, to promulgate and adopt state-wide court rules in order to implement this directive in terms of what information is to be submitted to court's to support attorney fee requests.

From an experienced family lawyer's point of view, my take on this revision is that its greatest value is in telling family court judges that attorney fee awards in appropriate cases are to be the standard and not the exception.  I suspect, however, that judges and commissioners will remain overly conservative.

From a family sciences point of view I believe it is a significant improvement in the law if we are to equalize power between spouses and, frankly, genders.  More often than not women have been on the losing side of the attorney fee question in the sense that they have not controlled community or other resources to the same extent, and in the same manner, as many of their husbands.  I think that it will advance woman's rights in family law litigation.  

I do not want to overstate the power of this revision.  It is a move in the right direction, but nonetheless something of a baby step.  We will await appellate court pronouncements as to what standards family courts should apply as trial courts are reversed for being too timid or parsimonious, or even too generous.  The California Judicial Council is given to 2012 to propose state wide guidelines that will give direction to courts, and that may help to foster uniformity between different venues, in coming years.

    "(a) At a hearing on any order to show cause or notice of motion brought pursuant to this code, absent a stipulation of the parties or a finding of good cause pursuant to subdivision (b), the court shall receive any live, competent testimony that is relevant and within the scope of the hearing and the court may ask questions of the parties.

    (b) In appropriate cases, a court may make a finding of good cause to refuse to receive live testimony and shall state its reasons for the finding on the record or in writing. The Judicial Council shall, by January 1, 2012, adopt a statewide rule of court regarding the factors a court shall consider in making a finding of good cause.

    (c) A party seeking to present live testimony from witnesses other than the parties shall, prior to the hearing, file and serve a witness list with a brief description of the anticipated testimony.

If the witness list is not served prior to the hearing, the court may, on request, grant a brief continuance and may make appropriate temporary orders pending the continued hearing."

Family Code section 217 will cause a sea-change in day to day family court proceedings across our state, unless family court judicial officers ignore it to the limited extent possible by court rules.  It will likely have immense financial and resource consequences upon not only the courts but upon parties to family court proceedings.  It will force the state government in coming years to study whole new paradigms for resolving divorce and domestic partnership dissolution outside the adversary template, including those currently practiced in New Zealand and southern Australia. 

It will also pressure parties to consider mediation, and collaborative processes which occur outside congested courthouses, much more carefully.  The costs of adversary litigation are about to sky-rocket, making mediation even more appealing from a financial perspective (I have written extensively about the emotional and psychological benefits here an elsewhere).  There simply is no governmental money available to absorb the coming Elkins Onslaught. For more information about an alternative method for resolving family disputes, please visit us at www.DesertFamilyMediationServices.com.
  
At the same time, at least in the short run taken together with some of the other revisions that become effective next month, it may encourage more people to litigate more stubbornly and so make mediation seem less attractive than it did before the changes (just the reverse will be true).  Some folks will mistakenly assume that this invites the use of court hearings as a live-testimony forum for sharing unresolved complaints relating to their marriage or domestic partnership dissolution with the other party in open court.  Instead, judges will sustain objections to such irrelevant material and parties who seek to use Family Court as a platform to air relationship grievances will find themselves alienating the trier of fact in ways that will have adverse consequences to them beyond just the time and expense of the exercise. 

The purpose of today's Blog is to introduce you to section 217 and the new changes.  I will follow up with more articles in coming weeks.  Without a doubt the new rules will make all the information I provide on my websites more relevant and timely for my readers. 

T.W. ARNOLD

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Q.  My divorce seems like it has stalled.  My wife operates our family business, we own several properties including a commercial building and she collects the rents, she isn't cooperating with me on custody on our kids, and I need money to pay my attorney.  She is controlling this case, and I am getting nowhere.  Any recommendations?

"Ed from Temecula"

TW Arnold
10/18/10

"(a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves either of the following:
* * *
(c) For the purposes of subdivision (a), it shall be deemed that a premarital agreement was not executed voluntarily unless the court finds in writing or on the record all of the following:

(1) The party against whom enforcement is sought was represented by independent legal counsel at the time of signing the agreement or, after being advised to seek independent legal counsel, expressly waived, in a separate writing, representation by independent legal counsel.

(2) The party against whom enforcement is sought had not less than seven calendar days between the time that party was first presented with the agreement and advised to seek independent legal counsel and the time the agreement was signed.

(3) The party against whom enforcement is sought, if unrepresented by legal counsel, was fully informed of the terms and basic effect of the agreement as well as the rights and obligations he or she was giving up by signing the agreement, and was proficient in the language in which the explanation of the party's rights was conducted and in which the agreement was written. The explanation of the rights and obligations relinquished shall be memorialized in writing and delivered to the party prior to signing the agreement. The unrepresented party shall, on or before the signing of the premarital agreement, execute a document declaring that he or she received the information required by this paragraph and indicating who provided that information...."

Notice how these provisions are almost shouting 'independent legal counsel.'  It is rare to see a phrase repeated so often within the same code section. 

So examine whether your agreement, and the required separate writing, seem to address these requirements.  Also, check to see whether the other conditions for enforceability are met.  There may be other reasons why your Prenup will not be enforced, as where undue influence was exerted to obtain your signature (notice the seven day waiting period, which is intended to overcome the social pressures where a wedding date is looming).  But you would be ill-advised to embark upon a challenge to the agreement without legal counsel this time around; don't compound the problem.

A final comment:  Setting aside the prenuptial agreement may only have a limited affect upon the status of the house.  For instance, the rules relating to transmutations and reimbursements still apply.  I have written about those elsewhere in this Blog, but if the house was acquired by your wife as her separate property independently of the Prenup it remains her separate property even if the agreement is voided.  However, if there was a mortgage and it was paid down with her earnings during marriage the cancelation of the Prenup may benefit you because the community will thereby gain a Moore Marsden reimbursement right in the principal pay down and appreciation.

Again, seek out an experienced family law attorney.  And, I always urge that people consider mediating these types of family law disputes.

T.W. Arnold
http://www.ThurmanArnold.com

Q.    What are the refund policies if I reconcile with my spouse or switch attorneys?

A.    Attorneys are required by California State Bar rules to refund all unused fees promptly, for whatever reason, when the relationship ends unless you have a Flat Fee arrangement where all the monies have been earned upon retention. 

Attorneys are required to provide your original file to you, after they copy it at their own expense. Attorneys cannot hold a file hostage for unpaid fees.  They must sign a Substitution of Attorney withdrawing from the case upon demand, regardless of whether or not they claim you owe them money.  They are required to give a full statement and explanation of your fees and charges upon request.  Refusal to do within 10 days or less may be a cause for State Bar Discipline. 

Q.    Where does the Retainer Deposit go?

A.    Lawyers are required to place all unearned fees into a State Bar approved Attorney Client Trust Account. This is because the deposit does not belong to the attorney, it belongs to the client. It is only after fees are earned or costs are expended that the attorney may remove that amount of money from their trust account.  Some lawyers do not maintain or use their trust accounts, and some will take the money upon retention as though they have earned it. This can result in discipline against the lawyer. 

The importance of ensuring that you attorney follows State Bar practices cannot be overstated. Do not hire a lawyer that does not maintain a trust account. 

Q.    What is a Family Law Retainer Agreement?

A.    A Retainer Agreement is a written contract between you and your divorce lawyer. The California Bar requires that any agreement for services where fees are to be charged in excess of $1,000 must be memorialized by a written Agreement, and the Client must receive a copy. It describes what types of services the attorney agrees to perform, office practices, billing rates and practices, and how any fee disputes will be resolved between you.

For the agreement to be enforceable by the attorney, it must state whether or not they maintain legal malpractice insurance.

Q.  I remarried in August, 2009, and my new wife is a doctor.  She has one child from her prior marriage and I have two.  I am still paying my former wife alimony and child support even though the kids we have together live at our home 40% of the time.  I have been hit hard by the economy and we largely depend upon my wife's medical income to make ends meet.  Now my ex is threatening to take me back to court to increase my support based upon my new wife's income, while my own income is down from when the court last decided it.  My new wife is upset at the idea that my ex can learn anything about the medical practice or income.  What should I do?

A.  If there has been a material decrease in your income since the time of your last order, you may safely file a support modification motion to lower your child support and to lower or possibly terminate your spousal support.  Whether that is advisable based upon your numbers has nothing to do with your new mate's income, and should not cause you to hesitate - but again, it does depend on the actual respective numbers between you and Wife 1, which you did not provide me.  You also need not worry about W1 filing a motion to increase (you can't stop her, but she will not win based on W2's earnings).  Maybe you should give her this link so she will think twice.

California law is quite clear that new mate income cannot generally be considered against you in ordering or modifying child or spousal support.  The controlling California Family statute is section 4057.5.

In the normal situation, Family Code section 4057.5 leaves the Court no discretion to consider your new wife's earnings, period.  You do not need to report those earnings on your FL-150 (Income and Expense Declaration). This is a statement of California legislative policy effective in 1993 when this section was added to the Family Code.  This is true for both spousal and child support.

However, section 4057.5 does contain an exception for the "extraordinary case" which the statute makes clear is intended to address situations where "where excluding that income would lead to extreme and severe hardship to any child subject to the child support award" or where "a parent ... voluntarily or intentionally quits work or reduces income, or who intentionally remains unemployed or underemployed and relies on a subsequent spouse's income."  Even if the court were to find a severe hardship on the children of marriage number one, it would be required not to impose a severe hardship on your wife's child by reallocating her income to you for purposes of supporting your two children. 

In practice, so far, Courts almost never find facts sufficient overcome this clear statutory prohibition.  So far there is no published California appellate decision defining these extraordinary circumstances.  No doubt one day someone will so abuse this protection and hide behind it that we will get a reported decision that fleshs out how bad someone needs to behave before the protection is lost.  But "extraordinary" means really extraordinary.  In the average case, your new Wife has nothing to be concerned about. 

With regard to attorneys fee awards, however, there is authority for an argument that new mate income may be considered in granting or denying an attorney fee request, but the odds are against a judge doing that.

Incidentally, this section also applies to income from nonmarital partners as well as new spouses.  In one reported case (IRMO Loh), a trial court was reversed for inceasing dad's child support obligation after the mother produced photos of the father's "lifetyle" to show imputed nontaxable income in the form of his new girlfriend's contributions to him, since she paid for all his toys. 

The new mate question is a subset of the "imputed income" situations where a father or mother may quit work or reduce hours because they are relying on their new mate to contribute the difference.  That is not likely going to be an extraordinary case, but  W1 can separately seek to impute income to you on the basis that you have a higher earning capacity than you are exercising.  Earning capacity and imputed income is a blog for another day.  Also, I will mention here that another argument exists in favor of W1 that has nothing to do with the right to obtain the records or income of W2:  Equalizing the lifestyle's of the two households where yours is rich and grandiose and W1 is impoverished (an extreme example) pursuant to FC section 4057(b)(4).

The tax returns are privileged as they relate to your new wife's medical practice.  For instance, if she is a medical corporation (which I recommend be set up), she will almost never be forced to divulge those records.  Even as to your joint returns, you may be entitled to redact the information concerning your new spouse or have the Court review them in camera (meaning they are not turned over to the other side).  Your former mate is entitled to see your side of the tax returns, however, and they are not insulated from scrutiny simply because you filed joint with the Doctor Wife.  If you don't file jointly, your former wife will almost certainly never get her hands on your new wife's Married Filing Separately (MFS) returns.  Structuring things this way may or may not be advisable and you should consult a tax accountant.

An interesting twist here is that because you marry a higher, wealthy earner, your taxes actually increase because under federal IRS (and the California FTB), you are responsible for one-half of your new mate's income - and this is true even if you don't file jointly.  One case (County of Tulare vs. Campbell) has held that this additional tax you become liable for can form the basis for a reduction in your support because you have less net income available for support after the tax hit is deducted.  Hence, based on these tax consequences you may have an additional argument for decreased support - although a Court may try to deny you some discretionary offset to even the score since this feels a bit unfair to the spouse who is  primarily supporting the children and so lessen the downward modification.

The take-away:  So long as you are not playing games, have not intentionally reduced your income by relying upon your new mate's income, and there is no really extraordinary difference in the two households, your new wife's income is just not relevant and so it is protected.

Q.     What should I ask a family law attorney to see if we are a good fit?

I am a mom in San Diego County. There are court orders out of El Cajon for joint legal custody and sole physical to me. The old orders said I could move anywhere within San Diego County. I just changed our son's school to north county San Diego. I want to remarry, and have been living with my fiance for 4 years. I believe the schools are better here. Now our son's father is trying to force me to keep our son in the old school south of here, or to take custody.  He says the school our son was in is better. I would have to drive 70 miles for school drop off and pickup.

I have no money for attorney fees because my last lawyer had only a year's experience, and she upset the judge and now I am out $10,000. We have a hearing in 3 days. Please help.

Mellissa

Attorney Fees Question/Assuming There Are Any Further Hearings

You are requesting attorney's fees because the issues involved are some of the most complex in this area of the law (parent relocation), and you are entitled to be on a parity with Mr. Tr xxx, who has been able to retain competent counsel. 

Specifically, tell the Court your request is also made under authority of Alan T.S., Jr. (4/2/09) 172 Cal.App.4 ^th 238 and In re Marriage of Keech (1999) 75 Cal.App.4 ^th 860. Tell the Court that you are in pro per but do not want to be, but that obligation of supporting the child from this marriage plus the financial burden of your other handicapped child, makes it impossible for you to obtain legal representation without an order that Mr. Txxxx pay these fees.

1)      Establish that the final, current order, is for joint legal and sole physical custody to you.  Mr. Txxxx  rights are for visitation only, but not custody, absent a modification of the current orders upon a showing by him of a material change of circumstances. Your move and the child’s new school is not presumptively, without more, a sufficient change of circumstances to warrant a change of custody even assuming he asked for it (I don’t know if he has).

2)      As the parent entitled to the day to day supervisory control of the child per FC section 3007 (defines sole custody), you had a presumptive right to relocate. This is the same right codified in FC section 7501. You have custody; dad has visitation rights.  (Btw, his visitation rights are not being negatively impacted by the move, by his own admission, since his objection only involves relative school ratings).

3)      As to the joint legal custody label, this only grants each of you the rights under FC section 3003 (decisions regarding health, education and welfare) during your respective custody and visitation times.  FC section 3083. It is does not obligate you and he to agree on schooling absent a court order saying you had to first, per 3083, and it must be specific and mention “schooling” (I assume this is not the case).

4)      Even though you were not required to do it, you gave dad notice per FC section 3024 that you were moving north and changing the child’s schooling. F’s atty intimidated you into filing a motion for permission to make the move, when they probably were the one’s obligated to file a motion to restrain the change, and so you have acted in good faith. This is particularly true given the court order from (the ealier date) stating you can relocate anywhere within San Diego County.

5)      It is very important if their responsive declaration did not check the change of custody box, and if their paperwork only asks to restrict the change in schools – you need to be sure you are right about this before making the argument - BUT if they are not seeking a modification of custody, then you have the right to move [7501] and change schools [3003/3083] and there should be no need for any further hearings and your application must be granted.

6)      Next, ONLY IF THEY’HE REQUESTED A CHANGE OF CUSTODY, then the next analysis is: That this is not a de facto joint parenting agreement. This not a Burgess footnote 12 case (which requires a “ de novo” best interests of the child hearing only where there is true parenting agreement). Here the timeshare numbers become important – you want him as low as reasonably possible without sounding incredible. This is a straight Burgess situation, and therefore you have the presumptive right to move and you do not need to show that the your move was “necessary” or even in good faith, except with the added benefit to you that Burgess involved temporary orders and so the court had to do a best interest of the child analysis, while your case involves “permanent” orders and so that is not a ground for an evidentiary hearing (best interests was previously decided in your favor and the question will be not be reviewed again absent Dad showing a change of circumstances).

7)      Changing schools is not an adequate CoC as recently held by the California Supreme Court in Brown and Yana (2006) 37 Cal..4th 947. Here, like you, a parent with sole physical custody sought to move a much greater distance from the dad – Las Vegas. Dad’s objection was that the schools in LV were inferior. He wanted an evidentiary hearing before the move would be allowed, and he sought a change of custody to himself if Mom moved anyway. The trial court correctly refused to allow an evidentiary hearing because the Father had failed to allege sufficient facts showing a detriment to the child by simply claiming the relative merits of schools. Courts won’t step into that qualitative battle. Instead, F needs to show that you are attempting to frustrate contact, which clearly is not the case, or some other “detriment” in his responsive declaration. His failure to do so means he is not entitled to an evidentiary hearing.

8)      Since he is not entitled to an evidentiary hearing, even though a mediation is appropriate in the next month, it would be improper for this court to issue any orders that restrain your son’s ability to start school on 8/20/09 as planned.

9)      Father has failed to meet his burden.You need attorney fees to retain competent counsel for any further hearings.

10)    Finally, under FC section 3044 there is a rebuttable presumption that dad is not a fit person to be a joint custodial parent because of the DV orders.

Best of luck on this. If you get a court order for attorney fees, hire someone!

Thurman Arnold, CFLS