On appeal, appellant contended the trial court erred by combining cost shifting pursuant to section 2030 with sanctions pursuant to section 271, making no explicit differentiation between sums awarded pursuant to each statute. She further contends that the trial court abused its discretion in making an award under either statute.
Facts
Although the marriage of Mark and Kierstin dissolved in 2002, they remained engaged in litigation regarding child custody and support, which expanded to involve Cindy, who is Mark's current wife. In December 2008, Mark applied for post-judgment modification of child support, attorney fees, and sanctions. In January 2010, Mark's January sought a change in child custody. In August 2012, Kierstin's applied for a modification of child support. A trial of the substantive issues was concluded on June 27, 2013.
The trial court findings of fact included the observations that "[Kierstin] and her counsels' zealous advocacy crossed the line and became unreasonable, unduly burdensome and at times an exercise in bad faith. The trial court found that the underlying case was not complicated but was made complicated by the overzealous litigation on [Kierstin's] counsels' part and [Kierstin's] complete abandonment of the litigation process." The trial court described the proceedings as a "morass of litigation, the primary purpose of which was to ruin [Cindy and Mark] financially."
The trial court further found Kierstin to have "no concern about the level of her attorney fees because her father [Robert Hemborg] was committed to paying those fees and costs whatever the amount." The trial court noted that "Robert Hemborg testified at trial that [Kierstin] was due to inherit six (6) million dollars upon his death," and found that the amounts given to Kierstin for her fees and costs were "a loan against [Kierstin's] inheritance"; though Kierstin had reimbursed her father a "trivial" amount.
The trial court found Kierstin's attorneys had already been paid $322,653.39, and they were owed another $19,975.50, as of July 3, 2013. In comparison, as of that date, Mark had paid $123,257.65 to his attorneys and owed another $103,559.30. As of June 20, 2013, Cindy had paid $54,009.06 to her attorneys and owed another $122,660.34.
Family Code Section 2030
Section 2030 requires that the trial court "ensure that each party has access to legal representation . . . by ordering, if necessary based on the income and needs assessments, one party . . . 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).)
In determining the necessity of making such an award, the trial court must determine what award would be "just and reasonable under the relative circumstances of the respective parties." (§ 2032, subd. (a).) The factors to be considered in determining the relative circumstances of the parties include, to the extent relevant, those used for determining spousal support, enumerated in section 4320, including the catchall "[a]ny other factors the court determines are just and equitable." (§§ 4320, subd. (n); 2032, subd. (b).) Payment of an award under section 2030 may be ordered "from any type of property, whether community or separate, principal or income." (§ 2032, subd. (c).)
The trial court properly considered the funds Kierstin’s father paid to Kierstin’s attorneys on her behalf in determining the parties’ relative circumstances. In analogous family law contexts, courts have held that “where a party receives recurring gifts of money, the trial court has discretion to consider that money as income . . . .” (In re Marriage of Alter (2009) 171 Cal.App.4th 718, 722-723 (Alter).) Alter specifically involved the question of whether gifts should be considered income for purposes of determining child support payments. (Alter, supra, 171 Cal.App.4th at p. 723.) Even if characterized as a loan, an advance against a party’s share of an expected inheritance is properly treated as a gift. (In re Marriage of Williamson (2014) 226 Cal.App.4th 1303, 1313-1314 [discussing authority regarding advancements on inheritance].)
Although Kirsten argued that any gifts made by her father for her own attorney’s fees would not mean she would have continuing access to his funds to pay the other parties’ fees, the appellate court rejected this argument finding that “[i]t is irrelevant that there is no legal obligation on the part of the donor to continue making the gifts . . . ." (Alter, supra, 171 Cal.App.4th at pp. 736-737.) Thus, the appellate court found that the trial court acted within its discretion by rejecting Kierstin's plea of poverty for purposes of apportioning the overall cost of the litigation equitably between the parties. Mark and Cindy were awarded their costs on appeal.
Family Code section 271
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