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The Good, the Bad and the Ugly:
Attorney’s Fees, Sanctions and Collections

01.

APPLYING FOR ATTORNEY’S FEES FROM THE COURT

A.

Family Code §2030

A Court may order fees which are reasonably necessary to prosecute Family Code proceedings and this order may be augmented at anytime during the proceeding.

B.

Family Code §2031

Payment of Retainer/Application for temporary attorney fee orders shall be made by motion or in open court at hearing on merits or default. (including a reasonable retainer to hire an attorney, or costs or both shall be made by motion on notice or by an order to show cause..(b) An order described in subdivision (a) may be made without notice by an oral motion in open court at either of the following times: (1) At the time of the hearing of the cause on the merits.(2) At any time before entry of judgment against a party whose default has been entered pursuant to Section 585 or 586 of the Code of Civil Procedure. The court shall rule on any motion made pursuant to this subdivision within 15 days and prior to the entry of any judgment)

c.

Family Code §2032

 Attorneys Fees Awards During Marital Dissolution –Factors the court may consider

1. In Determining What Is Just And Reasonable Under The Relative Circumstances, The Court Shall Take Into Consideration

a. 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 Family Code §4320.

b. 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.

c. 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.

d. The court may order payment of an award of attorney’s fees and costs from any type of property, whether community or separate, principal or income.

e. Marriage of Mungia (1983) 146 Cal.App.3d 853 (also see IRMO Cueva (1978) 86 Cal.App.3d 290, 296, 300, In re Marriage of Lopez (1974) 38 Cal.App.3d 93, 113 Cal.Rptr. 58, disapproved on other grounds, In re Marriage of Morrison (1978) 20 Cal.3d 437, 453) factors —

(1) Nature of the Litigation
(2) Difficulty
(3) Amount Involved
(4) Skill Required
(5) Skill Employed in Handling the Litigation
(6) Attention Given, the Success of the Attorney’s Efforts
(7) Learning
(8) Age
(9) Experience in the Particular Type of Work Demanded
(10) Intricacies and Importance of the Litigation
(11) Labor and Necessity for Skilled Legal Training and Ability in Trying the Cause
(12) Time Consumed
(13) Financial Circumstances of the Paying Spouse May Be Considered
(14) Responsibility Undertaken

D.

Child And Spousal Support Enforcement –Family Code §3557 

Absent good cause to the contrary, the court shall award reasonable attorney’s fees to a party who brings an action to enforce a child and/or spousal support order.

E.

Order Modifying, Terminating Or Setting Aside Support — Family Code §3652

Except as against a governmental agency, an order modifying, terminating, or setting aside a support order may include an award of attorney’s fees and court costs to the prevailing party.

F.

Contemnor May Be Ordered To Pay Fees — Code Of Civil Procedure §1218(A)

[A] person who is subject to a court order as a party to the action, or any agent of this person, who is adjudged guilty of contempt for violating that court order may be ordered to pay to the party initiating the contempt proceeding the reasonable attorney’s fees and costs incurred by this party in connection with the contempt proceeding.

G.

Fees For Minor’s Counsel –Family Code §3153

If the court appoints counsel under this chapter to represent the child, counsel shall receive a reasonable sum for compensation and expenses, the amount of which shall be determined by the court. [T]his amount shall be paid by the parties in the proportions the court deems just.

h.

No Waiver Of Fees For Children Permitted

Parties may not adversely affect rights of children or State by agreeing to limit either child support or attorney fees for issues relating to children. In re Marriage of Joseph (1990) 217 Cal.App.3d 1277

i.

Motions For Change Of Venue — CCP 396(B)

In its discretion, the court may order the payment to the prevailing party of reasonable expenses and attorney’s fees incurred in making or resisting the motion to transfer whether or not that party is otherwise entitled to recover his or her costs of action. In determining whether that order for expenses and fees shall be made, the court shall take into consideration

J.

Inconvenient Forum In UCCJEA Case — Family Code §3427(E)

If it appears to the court that it is clearly an inappropriate forum, the court may require the party who commenced the proceeding to pay, in addition to the costs of the proceeding in this state, necessary travel and other expenses, including attorney’s fees, incurred by the other parties or their witnesses. Payment is to be made to the clerk of the court for remittance to the proper party.

K.

Unjustifiable Conduct In UCCJEA Case — Family Code §3428(C)

If a court dismisses a petition or stays a proceeding because it declines to exercise its jurisdiction pursuant to subdivision (a)[a party seeking to invoke its jurisdiction has engaged in unjustifiable conduct . . .], it shall assess against the party seeking to invoke its jurisdiction necessary and reasonable expenses including costs, communication expenses, attorney’s fees, investigative fees, expenses for witnesses, travel expenses, and child care during the course of the proceedings, unless the party from whom fees are sought establishes that the assessment would be clearly inappropriate. The court may not assess fees, costs, or expenses against this state unless authorized by law other than this part.

L.

District Attorney’s Fees In Child In Action To Recover Stolen Child — Family Code §3134 And §3457

When the district attorney incurs expenses pursuant to this chapter, including expenses incurred in a sister state, [t]he court in which the custody proceeding is pending … shall, if appropriate, allocate liability for … reimbursement … to either or both parties to the proceedings….

M.

Hague Convention Proceeding Attorneys Fees

U.S. v. Cummings (9th Cir. 2002) 281 F.3d 1046 and 18 U.S.C. §3663 (Victim and Witness Protection Act of 1982)

N.

Domestic Violence Proceedings — Family Code §6344

After notice and a hearing, the court may issue an order for the payment of attorney’s fees and costs of the prevailing party.

O.

Domestic Violence Tort Action — Code Of Civil Procedure §1708.6

The court, in an action pursuant to this section, may grant to a prevailing plaintiff equitable relief, an injunction, costs, and any other relief that the court deems proper, including reasonable attorney’s fees.

P.

Attorneys Fees In Motion For Compensation For Failure To Assume Caretaker Duties Or For Thwarting Visitation — Family Code §3028 — (A)

Q.

Mandatory Fee Provisions 1. Prevailing Party In UCCJEA Actions — Family Code §3452(A) And §3450(B)

The court shall award the prevailing party, including a state, necessary and reasonable expenses incurred by or on behalf of the party, including costs, communication expenses, attorney’s fees, investigative fees, expenses for witnesses, travel expenses, and child care during the course of the proceedings, unless the party from whom fees or expenses are sought establishes that the award would be clearly inappropriate.

(2) Remedy for Breach of Fiduciary Duty — Family Code §1100(e) — Remedies for breach of the fiduciary duty by one spouse, including those set out in [Family Code §721 and Family Code §1100], shall include, but not be limited to, an award to the other spouse of 50 percent, or an amount equal to 50 percent, of any asset undisclosed or transferred in breach of the fiduciary duty plus attorney’s fees and court costs…. (See also In re Marriage of Rossi (2001) 90 Cal.App.4th 34 for fees under Family Code §1101(h))

02.

SANCTIONS

A.

Notwithstanding any other provision of this code, the court may base an award of attorney’s fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. An award of attorney’s fees and costs pursuant to this section is in the nature of a sanction . . .

B.

Family Code §3027.1

Sanctions for false accusations of child abuse – If a court determines, based on the investigation described in [Family Code §3027] or other evidence presented to it, that an accusation of child abuse or neglect made during a child custody proceeding is false and the person making the accusation knew it to be false at the time the accusation was made, the court may impose reasonable money sanctions, not to exceed all costs incurred by the party accused as a direct result of defending the accusation, and reasonable attorney’s fees incurred in recovering the sanctions, against the person making the accusation. For the purposes of this section, ‘person’ includes a witness, a party, or a party’s attorney.

C.

Code of Civil Procedure §128.6

D.

Code of Civil Procedure §177.5

A judicial officer shall have the power to impose reasonable money sanctions, not to exceed . . . ($1,500), . . . payable to the county . . . , for any violation of a lawful court order . . .

E.

Sanctions for Discovery Abuses — Code of Civil Procedure §2023

Sanctions can be used for the following:

Notwithstanding the outcome of the particular discovery motion, the court shall impose a monetary sanction ordering that any party or attorney who fails to confer as required pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.

F.

Sanctions On Appeal — Cal. Rules Of Court, Rule 27