Sharples v. Sharples (In re Oflinda)

• Court: California Court of Appeals
• Writing for the Court: KING
• Citation: Sharples v. Sharples (In re Marriage of Sharples), 223 Cal.App.4th 160, 166 Cal.Rptr.3d 818 (Cal. App. 2014)
• Decision Date: 22 January 2014
• Docket Number: E056941
• Parties: IN REthe MARRIAGE OFLinda and Norman SHARPLES. Linda Sharples, Appellant, v. Norman Sharples, Respondent.

223 Cal.App.4th 160

166 Cal.Rptr.3d 818

IN REthe MARRIAGE OFLinda and Norman SHARPLES.Linda Sharples, Appellant,

v.Norman Sharples, Respondent.

E056941

Court of Appeal, Fourth District, Division 2, California.

Filed January 22, 2014

See 11 Witkin, Summary of Cal. Law (10th ed. 2005) Husband and Wife, § 176 et seq.

APPEAL from the Superior Court of Riverside County. James T. Warren, Judge. Reversed. (Super. Ct. No. SWD1100967)

Law Office of Aaron M. Hudson and Aaron M. Hudson for Appellant.

Singleton Smith Law Offices, Inc., Diane Singleton Smith; Lubrani & Brown, Michael D. Lubrani, Murrieta, and Lawya Rangel, Riverside, for Respondent.

OPINION

KING, J.

I. INTRODUCTION

In this marriage dissolution proceeding, appellant Linda Sharples (Wife) sought an order requiring respondent Norman Sharples (Husband) to pay for her attorney fees and costs pendente lite. The court denied the request because Wife did not file Judicial Council form FL-319 (hereafter form FL-319), which the court explained was mandatory. Because that form is not mandatory when, as here, comparable declarations are submitted, we will reverse the court's order.

II. FACTUAL AND PROCEDURAL SUMMARY

Wife filed an order to show cause (OSC) seeking modification of spousal support and an order to pay $20,000 for attorney fees and $10,000 for expert accounting fees. The OSC was supported by a memorandum of points and authorities, Wife's declaration, a declaration by Wife's counsel, and an income and expense declaration. According to Wife, Husband was the chief executive officer of Copan Diagnostics, Inc. (Copan), and had income in 2010 of $855,850. Wife was employed at Copan and made $700 per month. However, she believed Husband was trying to force her out of the company and she would soon have no income. She had $42,000 in assets and average monthly expenses of approximately $9,700. In his declaration, Wife's counsel set forth his qualifications as a certified family law specialist, his billing rates, and the need to retain the services of an accountant.

Husband opposed the OSC. He stated he had been giving Wife $3,000 per month and she would receive a portion of his bonus income. He also stated he had provided Wife's attorney with $10,000 for Wife's attorney fees. Wife's request that he pay more, he asserted, was unreasonable; and there was no need for an accounting expert in this case. He argued that each side should pay for its own attorneys and experts. Husband did not assert there was any procedural defect in Wife's OSC.

Prior to the hearing on the OSC, Wife's attorney filed an amended declaration and an updated income and expense declaration. Counsel stated that this case had become more complicated because Husband failed to respond to discovery and his business was objecting to a subpoena, necessitating a motion to compel. The amounts sought for attorney fees and expert fees were increased to $30,000 and $20,000, respectively. The new income and expense declaration indicated that Wife had no income and that Husband's income was estimated to be $55,429 per month. Wife's assets had been reduced to $25,000 and her monthly expenses had increased to $9,950.

At the hearing on the OSC, the court stated it had read the documents that had been filed regarding the matter. The following colloquy then took place:

“THE COURT: Interestingly enough, in all the documents I reviewed, I did not see anywhere a family law form 319, which is mandatory for you to be able to recover attorney's fees, so your request for attorney's fees is denied.

“[WIFE'S COUNSEL]: Your Honor, I believe the form is an optional form.

“THE COURT: No, it's not. It's mandatory as of January 1st, 2012. Family law form 319 is mandatory, sir.”

In written findings, the court stated that Wife “did not file form FL-319.” The court made no other findings. The court's minute order regarding the hearing stated: “Motion for attorney fees (form 319 not filed) is denied.” No other reasons were given.

III. DISCUSSION

Wife's request for attorney fees was based on Family Code sections 2030 and 2032.¹Section 2030 provides for the making of an order in a dissolution proceeding that one party pay for the other party's attorney fees and costs pendente lite. ( § 2030, subd. (a)(1).) The statute reflects the public policy of providing, “ ‘ “at the outset of litigation, consistent with the financial circumstances of the parties, a parity between spouses in their ability to obtain effective legal representation.” ’ [Citation.]” ( In re Marriage of Keech (1999) 75 Cal.App.4th 860, 866, 89 Cal.Rptr.2d 525.) The purpose “is not the redistribution of money from the greater income party to the lesser income party,” but rather “ parity: a fair hearing with two sides equally represented.” ( Alan S. v. Superior Court (2009) 172 Cal.App.4th 238, 251, 91 Cal.Rptr.3d 241.)

In ruling on a request for fees and costs under section 2030, the court is guided by section 2032, which provides that an award of fees and costs under section 2030 may be made “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); see In re Marriage of Cryer (2011) 198 Cal.App.4th 1039, 1055, 131 Cal.Rptr.3d 424.) In determining 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 addition to the parties' financial resources, the court may consider the parties' trial tactics. (In re Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 975, 138 Cal.Rptr.3d 44; In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1313–1314, 116 Cal.Rptr.3d 375.)

“[T]he family court has considerable latitude in fashioning or denying an attorney fees award... .” (In re Marriage of Tharp, supra, 188 Cal.App.4th at p. 1313, 116 Cal.Rptr.3d 375.) However, the court's “decision must reflect an exercise of discretion and a consideration of the appropriate factors as set forth in code sections 2030 and 2032.” (Ibid.; see In re Marriage of Falcone & Fyke, supra, 203 Cal.App.4th at p. 975, 138 Cal.Rptr.3d 44 [the record must reflect that the trial court exercised its discretion and considered the pertinent statutory factors].) The trial court's failure to exercise discretion is itself an abuse of discretion. (In re Marriage of Gray (2007) 155 Cal.App.4th 504, 515, 66 Cal.Rptr.3d 87; Richards, Watson & Gershon v. King (1995) 39 Cal.App.4th 1176, 1180, 46 Cal.Rptr.2d 169.)

Wife argues the trial court erred by failing to exercise its discretion with respect to the OSC and denying her request solely because of the erroneous conclusion that form FL-319 was mandatory. We agree.

In 2010, the Legislature added subdivision (e) to section 2030, which directs the Judicial Council to adopt, by January 1, 2012, “a statewide rule of court to implement this section and develop a form for the information that shall be submitted to the court to obtain an award of attorney's fees under this section.” (§ 2030, subd. (e), added by Stats. 2010, ch. 352, § 4.) In accordance with this direction, the Judicial Council adopted former rule 5.93, which expressly “applies to attorney's fees and costs based on financial need, as described in Family Code sections 2030... .” (Cal. Rules of Court, former rule 5.93(a) (hereafter former rule 5.93).) ² This rule was in effect at the time Wife filed her OSC and when the matter was heard. The rule provided, in relevant part, as follows:

“(b) Request [¶] (1) ... [T]o request attorney's fees and costs, a party must complete, file and serve the following documents:

“(A) Application for Order (form FL-310) attached to an Order to Show Cause (form FL–300) or a Notice of Motion (form FL-301);

“(B) Request for Attorney's Fees and Costs Attachment (form FL-319) or a comparable declaration that addresses the factors covered in form FL-319;

“(C) A current Income and Expense Declaration (form FL-150);

“(D) A personal declaration in support of the request for attorney's fees and costs, either using Supporting Declaration for Attorney's Fees and Costs Attachment (form FL-158) or a comparable declaration that addresses the factors covered in form FL-158; and

“(E) Any other papers relevant to the relief requested.” (Former rule 5.93(b), some italics added.)

The Judicial Council form referenced in former rule 5.93(b)(1)(B)—form FL-319—calls for the following information: (1) The reason for the request for attorney fees and costs; (2) the amount of fees and costs requested; (3) the specific fees and costs for which the order is sought; (4) whether fees and costs have been previously ordered; (5) a personal declaration as to financial need; (6) the attorney's billing rates and the nature of the litigation; and (7) notice to the responding party.³

Under the plain language of former rule 5.93, a party seeking attorney fees and costs under section 2030 must file and serve either form FL-319 or a comparable declaration. (Former rule 5.93(b)(1)(B).) Although filing form FL-319 or a comparable declaration is mandatory, neither is mandatory if the other is filed. Stated differently, the moving party has the option of filing form FL-319 or a comparable declaration.

The optional nature of the form is clear in the light of other rules of court. Rules 1.30, 1.31, and 1.35 distinguish “mandatory forms” from “optional forms.” Mandatory judicial forms “ must be used by all parties”; optional forms “ may be used by parties.” (Rules 1.31(a), 1.35(a), italics added.) Mandatory forms are required to include the words, “ ‘Form Adopted for Mandatory Use,’ ‘Mandatory Form,’ or ‘Form Adopted for Alternative Mandatory Use’ ” (rule 1.31(c)); optional forms must bear the words, “ ‘Form Approved for Optional Use’ or ‘Optional Form’ ” (rule 1.35(c)). A list of Judicial Council forms is...