Filed 1/13/20 Ettenger v. Ettenger CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

BARRY ETTENGER,

Plaintiff and Appellant,

v.

CATHY ETTENGER,

Defendant and Respondent.

H044184

(Santa Clara County

Super. Ct. No. FL002820)

Appellant Barry Ettenger challenges the trial court’s postjudgment order denying his request for attorney’s fees under Family Code section 2030. He claims that the court abused its discretion in refusing to order respondent Cathy Ettenger to pay a portion of the $400,000 in attorney’s fees that he incurred during seven years of litigation against Cathy. Cathy had paid her attorney a similar amount of fees. Barry argues that the court was obligated to order Cathy to pay a portion of his fees because Cathy has a higher income and more assets than he does. We find no abuse of discretion and affirm the trial court’s order.

I. Background

Barry and Cathy married in 2001. Their daughter was born in 2008, and they separated in 2009. Cathy petitioned for dissolution of their eight-year marriage. At the time of separation, Cathy was employed as an attorney, and Barry, who was a certified paralegal, was unemployed. The court subsequently found that Barry was “under-employed” and imputed income to him of about $27,000 a year. The court also ordered Barry and Cathy to equally share custody of their daughter.

There was, in the words of the trial court, “a whole heck of a lot of litigation that went on in this case.” Throughout the lengthy dissolution litigation, the court repeatedly ordered that funds be released to both parties for attorney’s fees, with those funds subject to subsequent reallocation, reimbursement and/or characterization. All of those disbursements were subsequently treated as community property. The judgment of dissolution was entered in December 2014. Cathy paid spousal support to Barry until June 2015, when spousal support terminated.

In December 2015, Barry filed a request for an order requiring Cathy to pay $150,000 of his attorney’s fees under section 2030. Barry declared that he was 65 years old and had only a limited ability to earn wages. His income was around $4,200 a month, and he claimed expenses that exceeded his income by a few hundred dollars a month. Cathy’s income was around $19,000 a month. Barry was no longer receiving spousal support from Cathy, but she was paying him $1,600 a month in child support. The community estate had been divided equally. Cathy had a separate property estate of considerable value, while Barry had a brokerage account worth around $200,000. He had paid $340,000 in attorney’s fees during the dissolution litigation and (by the time the motion was heard) owed another $17,000 to his attorney.

Barry argued that Cathy should be ordered to pay a portion of his attorney’s fees “due to the disparate financial condition of the parties” and Cathy’s litigation conduct. He acknowledged that he and Cathy had each received a distribution of more than $200,000 during the litigation to pay their attorney’s fees. However, he argued that the litigation had “nearly wiped out my savings” and eaten up his retirement funds. He asserted that section 2030 fees were reasonable and necessary because Cathy had a higher income and more assets.

Cathy opposed his request and noted in her declaration that his prior request for section 271 fees had been denied. Cathy, who was 60 years old, earned $19,000 a month, had $600,000 in assets, and claimed monthly expenses in excess of $10,000 a month, which included large payments on her attorney’s fees. She had paid her attorney almost $400,000 and still owed her more than $18,000. Cathy paid all of their daughter’s expenses plus child support to Barry. She maintained that Barry had driven up the cost of the litigation by rejecting all of her settlement offers and refusing to comply with court orders. Cathy also asserted that, until June 30, 2015, her spousal support payments to Barry had resulted in “the parties shar[ing] almost equally in the net disposable income available to the family . . . .”

At the June 2016 hearing on Barry’s request for fees, Cathy’s trial counsel asserted that “to the best of my recollection” there had been “multiple 2030 motions” in the case. Barry’s trial counsel contended that there had been only “disbursements,” not any rulings or hearings concerning section 2030 fees. He asserted that he and Cathy’s trial counsel “agreed that” the attorney’s fees issue “we would do that later.” The court asked the parties for a record of all of the disbursements to the parties for attorney’s fees, and Cathy’s trial counsel volunteered to prepare one. The parties agreed to make their closing arguments by written briefs.

In July 2016, Cathy’s trial counsel sent a letter to the court to which she attached a chart entitled “HISTORY OF ATTORNEY’S FEES REQUESTS AND ORDERS.” The chart indicated that Barry had repeatedly requested attorney’s fees during the litigation. It stated that the court had released funds to both parties but had “reserved” ruling on most of the attorney’s fees requests. The chart further indicated that three of the requests had been under section 2030, and that, in 2015, both parties’ requests for fees under section 271 had been denied. Barry’s trial counsel responded to this chart by claiming that a December 2014 order (which he did not attach and which does not appear in the appellate record) had referenced the fact that “the parties stipulated at trial that attorneys’ fees issues would be heard post-Judgment.”

In September 2016, the court issued a written order denying Barry’s request for fees. The order identified the relevant factors to consider under section 2030 and noted that they were not limited to “financial disparity.” The court considered whether each party had “sufficient resources to present their case adequately,” the “nature of the litigation,” “trial tactics,” and “how to apportion the overall cost of the litigation equitably between the parties under their relative circumstances . . . .” The court acknowledged the “financial disparity” between Barry and Cathy, but it rejected the argument that Barry had lacked resources to litigate the case. Each side had spent approximately $400,000 on attorney’s fees, and neither lacked access to funds during the litigation due to the disbursements. The court found that Cathy had not “unilaterally” driven up the cost of the litigation; both parties had contributed to the cost of the litigation. Both had had their assets substantially reduced by the cost of the litigation. Under these circumstances, the court concluded that requiring Cathy to pay a portion of Barry’s attorney’s fees would be neither reasonable nor necessary and that it was equitable for the parties to bear their own fees. The court denied Barry’s request for a statement of decision. Barry filed a notice of appeal on November 21, 2016.

II. Discussion

Barry contends that the trial court abused its discretion in denying his request for attorney’s fees “after he had relied upon the court’s express reservation of fees for several years.” He also contends that the court erred in refusing to issue a statement of decision.

A. Adequacy of Notice of Appeal

Cathy asserts that we should dismiss Barry’s appeal because his notice of appeal “fails to identify an appealable ruling.” Barry’s November 2016 notice of appeal identified the subject of his appeal as “Judgement [sic] after hearing re: atty fees.” The court’s September 21, 2016 order was entitled: “ORDER ON SUBMITTED MATTER; ATTORNEY’S FEES (FAM. CODE § 2030).” Cathy claims that she “is unaware of any such judgment in this case” and notes Barry’s failure to provide the date upon which this “Judgement” was issued.

“ ‘ “A notice of appeal shall be liberally construed in favor of its sufficiency.” ’ . . . Thus, notices of appeal referring to an ‘ “order” have been interpreted to apply to a “judgment,” and those referring to a “judgment” to apply to an “order,” “so as to protect the right of appeal if it is reasonably clear what appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced.” ’ ” (Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 20.) It does not require a particularly liberal construction of Barry’s notice of appeal to discern that he was appealing from the September 2016 attorney’s fees order when he filed his November 2016 notice and specified that it was an appeal from an attorney’s fees “Judgement.” We reject Cathy’s claim that we must dismiss Barry’s appeal.

B. Prior Requests for Fees

Barry contends that the trial court erred in reserving ruling on prior requests for attorney’s fees. We cannot address this issue in this appeal because Barry has failed to provide us with an adequate appellate record upon which we could assess this contention. “It is well settled, of course, that a party challenging a judgment has the burden of showing reversible error by an adequate record.” (Ballard v. Uribe (1986) 41 Cal.3d 564, 574.)

The record before us contains no prior attorney’s fees requests by Barry, no transcripts of any prior hearings, and no other evidence that the trial court refused to rule on any attorney’s fees requests. Barry’s trial brief did not mention any prior requests for section 2030 fees. The only indication in the record concerning prior attorney’s fees requests is the chart attached to the letter from Cathy’s trial counsel to the court. Barry’s trial counsel responded to this chart by adamantly asserting that the parties had stipulated to the court reserving the attorney’s fees issue for postjudgment resolution. Since Barry asserted below that he had stipulated to the reservation of the attorney’s fees issue for later resolution, and he has failed to provide an appellate record that supports his contrary appellate claim that the trial court refused to rule on prior requests for fees, we can only conclude that Barry forfeited any contention that the trial court erred by reserving ruling on prior requests for fees.

C. Denial of December 2015 Request for Fees

Barry contends that the trial court abused its discretion in denying his December 2015 request for attorney’s fees. To the extent that his challenge to this ruling is dependent on his claim that he “relied, ultimately to his detriment” on the trial court’s alleged earlier decisions to reserve ruling on prior requests, we decline to consider his argument because, as noted above, Barry has failed to provide an adequate record to show that any prior requests were made or that the trial court improperly failed to rule on them.

Barry claims that the court’s denial of his December 2015 request was an abuse of discretion because the court failed to “look at the overall cost of the litigation and determine how to equitably allocate the total cost of litigation between the parties.” He argues that the trial court “failed to consider the fees incurred by both parties and the appropriateness of making a fee award.”

“In a proceeding for dissolution of marriage . . . , the court shall ensure that each party has access to legal representation, including access early in the proceedings, to preserve each party’s rights by ordering, if necessary based on the income and needs assessments, one party, except a governmental entity, to pay to the other party, or to the other party’s attorney, whatever amount is reasonably necessary for attorney’s fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding.” (§ 2030, subd. (a)(1).) “When a request for attorney’s fees and costs is made, the court shall make findings on whether an award of attorney’s fees and costs under this section is appropriate, whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for legal representation of both parties. If the findings demonstrate disparity in access and ability to pay, the court shall make an order awarding attorney’s fees and costs.” (§ 2030, subd. (a)(2).)

“The court may make an award of attorney’s fees and costs under Section 2030 or 2031 where the making of the award, and the amount of the award, are just and reasonable under the relative circumstances of the respective parties.” (§ 2032, subd. (a).) “In determining what is just and reasonable under the relative circumstances, 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, taking into consideration, to the extent relevant, the circumstances of the respective parties described in Section 4320. 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. 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.” (§ 2032, subd. (b).) The “circumstances of the respective parties described in Section 4320” include “[t]he age and health of the parties,” “[t]he duration of the marriage,” earnings, earning capacity, needs, assets, and obligations. (§ 4320.)

“[T]he trial court has broad discretion in ruling on a motion for fees and costs; we will not reverse absent a showing that no judge could reasonably have made the order, considering all of the evidence viewed most favorably in support of the order. [Citation.] However, ‘although the trial court has considerable discretion in fashioning a need-based fee award [citation], the record must reflect that the trial court actually exercised that discretion, and considered the statutory factors in exercising that discretion.’ ” (In re Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 975.)

This is not a case in which Barry lacked “access” to funds to pay his attorney’s fees “during the pendency of the proceeding.” (§ 2030.) The court repeatedly released basically equal amounts of funds to Barry and Cathy from the community estate during the litigation to permit them to pay their attorney’s fees. No disparity in access to funds or ability to pay attorney’s fees occurred at any point prior to the December 2014 entry of judgment. Thus, despite the fact that Barry incurred over $350,000 in attorney’s fees during the litigation, at the time of Barry’s December 2015 request for fees, he had already paid $340,000 in attorney’s fees and owed only $17,000 more. Furthermore, Barry did not lack funds to pay his unpaid attorney’s fees since he had over $200,000 available to him in liquid funds.

The court “may” make an award of attorney’s fees under section 2030 where such an award is “just and reasonable” in light of the parties’ “relative circumstances.” (§§ 2030, 2032.) “Financial resources are only one factor for the court to consider” (§ 2032, subd. (b)), and the court exercises broad discretion in weighing the relevant factors, which include the duration of the marriage and the parties’ needs and obligations (§§ 2032, 4320).

Barry’s argument hinges on the December 2015 income disparity, but this level of income disparity was of fairly recent vintage. Until June 2015, Cathy was paying Barry not only child support but also a substantial amount of spousal support. These payments to Barry reduced her income and increased his income, which significantly blunted the income disparity throughout the time period when Barry incurred and paid the bulk of his attorney’s fees. The court reasonably could have concluded that the income disparity in December 2015 did not favor an award of attorney’s fees that Barry had already paid during a period of considerably less disparity.

Barry argues that he was “economically ruined” by the cost of the litigation. The record does not support this claim. Barry had nearly $200,000 in the bank, and his remaining attorney’s fees were well within his ability to pay. His income and the child support payments were sufficient to pay his expenses. A request for attorney’s fees does not require a court to mandate that one party bear more than her share of the large amount of attorney’s fees that both parties willingly chose to incur in their prolonged litigation of this dissolution action. The court reasonably could have concluded that the short duration of the marriage and the fact that Cathy was responsible for paying nearly all of their daughter’s expenses weighed against shifting responsibility for Barry’s attorney’s fees to her shoulders.

D. Refusal to Issue Statement of Decision

Barry’s remaining contention is that the court erred in failing to issue a statement of decision. “[U]pon the trial of a question of fact by the court, written findings of fact and conclusions of law shall not be required. The court shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial. . . . The request for a statement of decision shall specify those controverted issues as to which the party is requesting a statement of decision.” (Code of Civ. Proc., § 632.)

At the end of his “Trial Brief,” Barry stated: “Respondent requests a Statement of Decision.” In his written closing argument, Barry again requested a statement of decision. At no time did Barry “specify” any “controverted issues” to be addressed in a statement of decision. The court denied Barry’s request for a statement of decision on the ground that there had not been “a trial on a question of fact.”

A party who fails to specify any controverted issues forfeits any appellate challenge to the adequacy of the court’s statement of the reasons for its decision. (Thompson v. Asimos (2016) 6 Cal.App.5th 970, 983.) Here, the court provided a written explanation of the reasons for its decision. Barry has forfeited any claim that this explanation was inadequate.

Furthermore, the court was not obligated to issue a statement of decision as to its ruling on Barry’s request for attorney’s fees. “[C]ourts have held that a statement of decision ordinarily is not required in connection with a ruling on a motion [citations], even if the motion involves an extensive evidentiary hearing [citations]” except under very limited circumstances. (In re Marriage of Fong (2011) 193 Cal.App.4th 278, 294, fn. omitted (Fong).) A statement of decision is not required for a ruling on a motion for attorney’s fees under section 271 (Fong, at p. 296) or a ruling on a motion for pendente lite attorney’s fees (In re Marriage of Askmo (2000) 85 Cal.App.4th 1032, 1040). Barry provides no justification for distinguishing a ruling on a request for section 2030 fees from these rulings for which a statement of decision is not required. The court did not err in failing to issue a “statement of decision” in response to Barry’s inadequate request.

III. Disposition

The order is affirmed.

 

_______________________________

Mihara, J.

WE CONCUR:

_____________________________

Elia, Acting P. J.

_____________________________

Bamattre-Manoukian, J.

Ettenger v. Ettenger

H044184