Filed 8/3/20 Marriage of Swain CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re the Marriage of ROBIN C. and CLAUDIA SWAIN.

ROBIN C. SWAIN,

Appellant,

v.

CLAUDIA COLLINS,

Respondent.

G058117

(Super. Ct. No. 10D002038)

O P I N I O N

Appeal from a postjudment order of the Superior Court of Orange County, Salvador Sarmiento, Judge. Affirmed. Motion to Augment Record. Granted.

Robin C. Swain, in pro. per., for Appellant.

Law Offices of Lisa R. McCall, Lisa R. McCall and Erica M. Baca, for Respondent.

* * *

INTRODUCTION

Robin C. Swain appeals from a postjudgment order granting a request made by attorney Kevin Qualls for an order awarding attorney fees pursuant to Family Code section 2030 and In re Marriage of Borson (1974) 37 Cal.App.3d 632 (Borson). Qualls briefly represented Claudia Collins, Swain’s ex wife, in opposing a request for order made by Swain. The family court granted the request for attorney fees and awarded $5,700. We conclude the family court did not abuse its discretion and therefore affirm.

FACTS AND PROCEDURAL HISTORY

The marriage of Swain and Collins was formally dissolved by a judgment entered in August 2010. They have two minor children by their marriage.

In March 2018, Swain, representing himself, filed a request for order to change the schools of the minor children. Swain asserted the children’s best interests would be served by attending schools in the Capistrano Unified School District. A month later, Collins, also self represented, filed a responsive declaration in opposition to Swain’s request for order and a notice of limited scope representation indicating attorney Walter R. Mitchell would appear on Collins’s behalf at the hearing noticed for April 20, 2018.

The hearing on Swain’s request for order was continued to June 13, 2018. On June 12, 2018, Collins filed a substitution of attorney naming Qualls as her counsel. Qualls asked Swain to agree to a continuance of the hearing on his request for order. Swain declined. Qualls appeared in court on June 13, 2018, and obtained a continuance of the hearing to July 23, 2018. On July 23, the family court appointed counsel to represent the minor children and did not rule on the request for order.

Swain’s request for order was heard on August 15, 2018. A few days later, after having taken the matter under submission, the court issued an order denying Swain’s request. Swain filed a motion for reconsideration, and Qualls, on behalf of Collins, prepared opposition to it at a cost of $1,800. Qualls sent Swain a letter pursuant to Code of Civil Procedure section 128.7 allowing him 21 days to withdraw the motion for reconsideration to avoid a sanctions motion. Swain withdrew the motion for reconsideration.

In August 2018, Swain was laid off from his employment and filed with the Department of Child Support Services (DCSS) a request for order to reduce the amount of his child support payments. In the same month, Qualls subpoenaed compensation records from Swain’s former employer. Swain met in person with Qualls in his office on September 25, 2018, and, between that date and November 1, 2018, the two exchanged letters and e mail messages.

On November 1, 2018, Qualls filed a motion to be relieved as counsel, citing “[Collins]’s failure to cooperate and communicate with the undersigned, the Attorney/Client relationship has been irrevocably damaged.” A substitution of counsel leaving Collins as a self represented litigant was filed on November 30.

On November 5, 2018, Qualls, while still counsel of record for Collins, filed a request for order for attorney fees (the request for attorney fees) pursuant to Borson, supra, 37 Cal.App.3d 632. In a supporting declaration, Qualls stated: (1) Collins had paid him an initial retainer of $2,500; (2) his hourly rate is $400 an hour; and (3) as of October 1, 2018, Collins owed him $5,780. Qualls also declared that Swain was earning at least $250,000 annually while Collins was earning $2,500 per month. Qualls sought to recover $5,700. Attached to his declaration were billing invoices describing the legal work for which he sought payment.

In December 2018, Qualls filed, in support of the request for attorney fees, a supplemental declaration describing the work he performed on behalf of Collins and setting out Swain’s compensation history obtained from the subpoenaed records. In the supplemental declaration, Qualls requested an award of $6,496 and attached the most recent invoice, which showed Collins owed that amount as of November 28, 2018.

In a responsive declaration opposing the request for attorney fees, Swain asserted: (1) the request for order was technically defective and did not comply with the California Rules of Court; (2) Collins did not need to retain counsel because she is an experienced and successful self represented litigant who could have handled the matters at hand; (3) Qualls performed unnecessary work, such as preparing opposition to the motion for reconsideration; (4) Qualls’s billing statements were filled with errors and duplication; (4) Qualls sought compensation for routine parenting tasks that Collins had delegated to him; (5) Qualls spent excessive time on simple tasks; and (6) Qualls’s hourly rate was considerably higher than the prevailing rate for attorneys handling the same matters. In addition, Swain argued Qualls did not have authority to bring the request for attorney fees.

In January 2019, Swain submitted an income and expense declaration reflecting a monthly income of $15,000 and monthly expenses of $9,463 of which $2,000 was paid by others. Before the hearing on the request for attorney fees, Collins filed three income and expense declarations dated, respectively, March 18, March 20, and June 12, 2019. These three income and expense declarations, and another income and expense declaration from Swain dated April 22, 2019, were not included in the appellant’s appendix.

Collins’s income and expense declarations reflected monthly income in March 2019 of $1,380 with monthly expenses not paid by others of $1,110 (March 18 declaration) and $3,610 (March 20 declaration). Collins’s income and expense declaration filed on June 12, 2019 showed that she was working 40 hours per week at $25 per hour. Swain’s income and expense declaration filed on April 22, 2019 reflected monthly income of $15,000 and monthly expenses not paid by others of $7,813.

After hearing the request for attorney fees on June 18, 2019 the court took the matter under submission and, in July, issued an order granting the request. The court found: “Pursuant to Family Code sections 270 and 2030 and applicable case law, the court finds [Swain] has the ability to pay a contributory share of [Collins]’s reasonable attorney fees/cost[s] and that [Collins] has a need for this contribution. [¶] Therefore, the court orders [Swain] to pay a contributory share of [a]ttorney fees to [Collins] as follows: [¶] $5,700 payable at $475 per month commencing July 15, 2019.” Swain filed a notice of appeal from the order granting the request for attorney fees.

DISCUSSION

I. Background Law and Standard of Review

Family Code section 2030 (further code references are to the Family Code) permits the family court to order payment of attorney fees and costs as between the parties based upon their “ability to pay” and their respective “incomes and needs” in order to “ensure that each party has access to legal representation to preserve each of the party’s rights.” (§ 2030, subd. (a)(1).) “‘The purpose of such an award is to provide one of the parties, if necessary, with an amount adequate to properly litigate the controversy.’” (In re Marriage of Rosen (2002) 105 Cal.App.4th 808, 829.) “If [the trial court’s] findings demonstrate disparity in access and ability to pay, the court shall make an order awarding attorney fees and costs.” (§ 2030, subd. (a)(2), italics added.)

In ruling on a request for attorney fees under section 2030, the trial court is guided by section 2032, which provides that an award of attorney fees may be made “where the making of the award, and the amount of the award, are just and reasonable under relative circumstances of the respective parties.” (§ 2032, subd. (a); see In re Marriage of Sharples (2014) 223 Cal.App.4th 160, 164 165.) To determine what is just and reasonable, “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.” (§ 2032, subd. (b).)

In order to award attorney fees under section 2030, the family court must make express findings, in writing or orally on the record, on three issues: (1) whether an award of attorney fees is appropriate; (2) whether there is a disparity in access to funds to retain counsel, and (3) whether one party is able to pay for legal representation of both parties. (In re Marriage of Morton (2018) 27 Cal.App.5th 1025, 1050.) Failure to make these express findings constitutes reversible error if the appealing party establishes prejudice. (Id. at p. 1051.)

We review an award of attorney fees under the Family Code under the abuse of discretion standard. (In re Marriage of Turkanis & Price (2013) 213 Cal.App.4th 332, 345.) “‘[T]he family court has considerable latitude in fashioning or denying an attorney fees award’” (In re Marriage of Sharples, supra, 223 Cal.App.4th at p. 165), and we affirm “unless no judge reasonably could make the order” (In re Marriage of Rosen, supra, 105 Cal.App.4th at p. 829).

II. Qualls Had Authority to Make the Request for Attorney Fees Pursuant to Borson.

Swain argues that Qualls did not have Collins’s authority when he filed the request for attorney fees because Qualls did not obtain consent from Collins until November 8, 2018, which was three days after the request for attorney fees was filed and one week after Qualls had ceased doing work for her.

An attorney who has been discharged by the client while a marital action is pending may, with the client’s consent, file a motion for attorney fees, often called a Borson motion, on the client’s behalf. (Borson, supra, 37 Cal.App.3d at pp. 637-638.) The family court, if it grants the motion, sets the amount of fees and determines whether they are to be paid by the client or by the opposing party. (Ibid.; see Hogoboom et al., Cal. Practice Guide: Family Law (The Rutter Group 2020) ¶ 14:308, p. 14 113.) The attorney must obtain the client’s express or implied consent to bring a Borson motion because the right to have attorney fees paid while the action is pending belongs to the client. (In re Marriage of Erickson & Simpson (2006) 141 Cal.App.4th 707, 713.) The Borson motion must be filed while the attorney moving for fees is still counsel of record; that is, the motion must be filed before a substitution of counsel is filed. (Id. at pp. 713 714.)

Qualls stated in his supplemental declaration that the request for attorney fees “was done with the knowledge and consent of my client who on November 8, 2018 sent me an email stating ‘Please request the maximum in attorney fees from Mr. Swain.’” Swain reads this declaration as saying that Collins did not consent to the request for attorney fees until she sent the e mail on November 8, which was three days after the request for attorney fees was filed. We do not read the declaration that way. The declaration states that Qualls made the request for attorney fees with the knowledge and consent of Collins. The clause “who on November 8, 2018 . . .” does not exclude the possibility that Collins approved the request for attorney fees before that date. In addition, we can infer from the declaration, as well as Collins’s lack of objection to the request for attorney fees, that Collins impliedly consented to it. (Borson, supra, 37 Cal.App.3d at pp. 637 638.)

Qualls was counsel of record for Collins when he filed the request for attorney fees on November 5, 2018. He filed a motion to be relieved as counsel on November 1, 2018, but remained counsel of record for Collins until November 29, when a substitution of counsel was filed. The substitution of counsel, which was filed after the request for attorney fees was filed, did not divest the family court of jurisdiction to hear and decide the request. (In re Marriage of Erickson & Simpson, supra, 141 Cal.App.4th at pp. 713 714.)

III. Any Omissions or Errors in the Request for Attorney Fees Was Harmless.

Swain argues the request for attorney fees was defective because it omitted necessary information and did not include all of the forms required by the California Rules of Court. California Rules of Court, rule 5.427(b)(1) requires a party requesting attorney fees under the Family Code to complete and file four specified forms or declarations. Rule 5.427(b)(2) states: “The party requesting attorney’s fees and costs must provide the court with sufficient information about the attorney’s hourly billing rate; the nature of the litigation; the attorney’s experience in the particular type of work demanded; the fees and costs incurred or anticipated; and why the requested fees and costs are just, necessary, and reasonable.” A party seeking attorney fees must complete Judicial Council Form FL 150 and file it with the request for order. (Cal. Rules of Court, rule 5.92(b)(2)(A).) The Form FL 150 “must be current” and include the documents specified in that form that demonstrate the moving party’s income. (Id., rule 5.92(b)(2)(B).)

Swain contends that Qualls “circumvented the mandatory requirements of the California Rules of Court” because, on Form FL 300, Qualls checked box No. 8 for “other orders requested” instead of box No. 6 for “attorney’s fees and costs.” Although Qualls checked the wrong box on Form FL 300, this mistake must be prejudicial to warrant reversal. Reversal is justified only if it is reasonably probable the appealing party would have obtained a more favorable result in absence of the error. (Sabato v. Brooks (2015) 242 Cal.App.4th 715, 724 725.) Qualls could not have misled anybody by checking box No. 8 instead of box No. 6 because his supporting declaration left no doubt he was seeking attorney fees under sections 2030 and 2032 and Borson.

Swain contends the request for attorney fees omitted the following information required by the Judicial Council forms: (1) whether there were prior orders regarding attorney fees and costs; (2) the difficulty and skill required to handle the litigation; (3) why the fees are just, necessary, and reasonable; (4) information regarding any existing child support orders; (5) facts regarding Collins’s training, job skills, and work history; (6) the state of the current job market for Collins’s job skills; (7) the parties’ respective assets and obligations; (8) the length of the marriage; (9) the age and health conditions of Swain and Collins.

Swain is correct as to item No. 1: The papers submitted by Qualls did not address whether there were prior attorney fees orders. As Collins points out, the family court had access to the court docket, which would have revealed no attorney fees had ever been sought or awarded. It was not reasonably probable the court would have reached a different ruling if the information about prior attorney fees orders had been provided. (Sabato v. Brooks, supra, 242 Cal.App.4th at pp. 724 725.)

Item Nos. 2 and 3 were addressed in Qualls’s declaration and supplemental declaration. Although the supplemental declaration was not filed with the moving papers, it was filed far enough in advance of the hearing to permit Swain to respond to it. Although item No. 4 was not addressed in the request for attorney fees, the family court stated at the hearing it intended to look at the findings from the Department of Child Support Services. We assume the court did so before issuing its ruling.

As to item Nos. 5 and 6, the income and expense declarations submitted by Collins set forth her level of education (high school and two years of college), her employment, and her hourly wage. According to the income and expense declaration filed in June 2019, Collins was employed full time and was earning $25 per hour. Although no information was provided about the state of the current job market for someone with Collins’s skills, Swain did not contend Collins was underemployed. It was not reasonably probable that more detail about Collins’s training, job skills, and work history, and the current job market for someone with those skills would have led the court to make a different ruling. (Sabato v. Brooks, supra, 242 Cal.App.4th at pp. 724-725.)

Item No. 7 was provided by the income and expense declarations filed by Collins and Swain. As to Item Nos. 8 and 9, the request for attorney fees and supporting materials did not reveal the length of the marriage and the age and health conditions of Swain and Collins, but none of that information was particularly relevant to the request for attorney fees given it was limited to fees incurred in connection with Swain’s request for order to change school districts.

IV. The Family Court Did Not Abuse Its Discretion.

Swain argues the family court abused its discretion in awarding Collins attorney fees because she was an experienced self represented litigant and therefore had no need to retain counsel and incur fees. Section 2030 did not disqualify Collins from an attorney fees award simply because she had been representing herself up to that point in the marital dissolution action. Section 2030 grants the family court authority to make an award of attorney fees to “ensure that each party has access to legal representation, including access early in the proceedings, to preserve each party’s rights.” (Italics added.) “The idea is that both sides should have the opportunity to retain counsel.” (Alan S. v. Superior Court (2009) 172 Cal.App.4th 238, 251.) Although Collins had previously represented herself, or retained counsel for limited scope representation, she was not required to represent herself in perpetuity: She could decide she needed to retain counsel to oppose Swain’s request for order changing the children’s school district. The purpose of Section 2030 was to ensure her access to such counsel.

The family court found that Swain had the ability to contribute to payment of Collins’s attorney fees and Collins had the need for this contribution. Swain argues the family court did not have a current income and expense declaration from Collins and therefore would have been unable to make a determination regarding disparity in income and needs. Collins submitted income and expense declarations on March 18 and 20, and June 12, 2019. The hearing on the request for attorney fees was conducted just six days after the third income and expense declaration was filed.

Swain argues the court’s findings were not based on evidence but on statements about his income made by Qualls that were inaccurate and exaggerated. Nothing in the record suggests the family court relied on anything other than the income and expense declarations in assessing the parties’ relative financial condition. The income and expense records support a finding of disparity in access to funds to retain counsel. According to the June 12, 2019 income and expense declaration from Collins, she worked 40 hours per week at a wage of $25 per hour. Her March 20, 2019 declaration reflected monthly expenses not paid by others of $3,610. In contrast, Swain’s income and expense declaration submitted on April 22, 2019 showed monthly income of $15,000 and monthly expenses not paid by others of $7,813.

According to Swain, the legal playing field between the parties was level when both were self represented but became imbalanced in favor of Collins once she retained Qualls to represent her. The question posed by section 2030, subdivision (a) is whether there is disparity in access to funds to retain counsel. “[T]he 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.” (§ 2032, subd. (b).) Swain had sufficient resources to retain counsel if he chose to do so. His decision to represent himself did not mean Collins had to remain self represented.

Section 2030, subdivision (a)(1) permits an award of attorney fees in an amount “reasonably necessary . . . for the cost of maintaining or defending the proceeding during the pendency of the proceeding.” Swain argues the only pending proceeding was his request for order to change school districts, and, therefore, the family court erred by failing to review Qualls’s billings statements for errors, such as preparing subpoenas to obtain his pay records, that were unrelated to that request.

In In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1294, the Court of Appeal concluded the family court erred by affirmatively stating on the record it would not go through the submitted billing statements to determine which fees were reasonably necessary. On a silent record, in contrast, we will presume the court performed its statutory duty. (In re Julian R. (2009) 47 Cal.4th 487, 492; People v. Allegheny Casualty Co. (2007) 41 Cal.4th 704, 715.) Here, the record, though quiet, is not silent: the family court stated in its minute order that it had “reviewed the pleading[s] and argument.”

Swain argues the family court’s decision to award the full amount of attorney fees sought by Qualls demonstrates the court did not actually review his billing statements. The amount awarded was in fact lower than the amount sought. The court awarded $5,700, which was the amount that Qualls had requested in his original declaration, but in a supplemental declaration Qualls had requested $6,496. The family court denied some of the fees sought by Qualls.

Qualls stated in both of his declarations that Collins retained him to represent her with respect to Swain’s request for order to change school districts. This limited scope of representation suggests the family court might have erred if it awarded fees for work, such as subpoenaing Swain’s compensation records, that was unrelated to the school district request. But the trial court did not award Qualls the full amount he sought, and Swain does not provide us a calculation of how much Qualls charged for the subpoenas and other work claimed to be unrelated to the school district request. Swain does identify the $1,800 charged by Qualls to prepare opposition to Swain’s motion for reconsideration as an unnecessary expense. We conclude the family court did not err to the extent its award of attorney fees included that charge.

In his reply brief, Swain argues for the first time that the family court failed to make the express findings required to award attorney fees under section 2030. (See In re Marriage of Morton, supra, 27 Cal.App.5th at pp. 1050 1051.) This argument is forfeited. (Chicago Title Ins. Co. v. AMZ Ins. Services, Inc. (2010) 188 Cal.App.4th 401, 427-428 [arguments raised for the first time in the appellant’s reply brief are forfeited].) Swain also argues for the first time in his reply brief that the family court had no evidentiary basis to award fees because Qualls’s declarations and Collins’s income and expense declarations were never formally received into evidence. This argument is likewise forfeited. (Ibid.) In any event, we find no prejudice in light of the extensive financial information in the record.

A reasonable judge could have made the order granting the request for attorney fees in the amount of $5,700 (In re Marriage of Rosen, supra, 105 Cal.App.4th at p. 829). We therefore find no abuse of discretion.

DISPOSITION

The order granting the postjudgment request for attorney fees is affirmed. Respondent to recover costs on appeal.

FYBEL, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

MOORE, J.