Which Family Code?

[Silverplum]

Thank you very much for that information. I have been reading family codes all morning.. everything is starting to become blurry!

PLEASE READ Zigner's response to that "information."

 

[GoodDadtoBK]

Got it... Thanks for the heads up.

The funny thing about this is that she is asking that I pay her legal fees! Not only does she make three times what I make (close to 180k/year), SHE is the one who is bringing this nonsense back to court.

 

[Zigner]

Got it... Thanks for the heads up.

The funny thing about this is that she is asking that I pay her legal fees! Not only does she make three times what I make (close to 180k/year), SHE is the one who is bringing this nonsense back to court.

Anybody in a custody issue will (should) ask the other party to pay the fees. It's a given...

Please keep in mind that a person's financial situation has no bearing on whether or not they can ask for/receive an award for fees.

 

[mistoffolees]

Anybody in a custody issue will (should) ask the other party to pay the fees. It's a given...

Please keep in mind that a person's financial situation has no bearing on whether or not they can ask for/receive an award for fees.

Not entirely true.

Fees can be awarded for 2 reasons:

1. If the filing is frivolous, the judge may make the person who filed it pay as a penalty for filing frivolous actions.

2. If one party makes a lot more money than the other party, the court may make him/her pay the other one's fees. However, this is more common at the time of the divorce rather than in a later filing - as in this particular case.

 

[dmcc10880]

The code sections given are totally relevant as the OP is trying to affirm the family court's original order.

The other posters who have decried my posts need to read the sections prior to comment. If they don't think my advice applies, they may want to try giving some tangible advice, pointing out code sections as opposed to spewing opinion without backup.

The OP is not trying to modify the order, he is trying to maintain the order as adjudicated.

Remind the court- as they already know- the reasons why they gave the original custody order and put the judge in the position of reversing his/her original decision. He/she will not.

As for sanctions, although unlikely, if you do not ask for them per 271 specifically, you will not get them.

Feel free to pm me.

 

[dmcc10880]

Re: Sanctions under 271

(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. In
making an award pursuant to this section, the court shall take into
consideration all evidence concerning the parties' incomes, assets,
and liabilities. The court shall not impose a sanction pursuant to
this section that imposes an unreasonable financial burden on the
party against whom the sanction is imposed. In order to obtain an
award under this section, the party requesting an award of attorney's
fees and costs is not required to demonstrate any financial need for
the award.
(b) An award of attorney's fees and costs as a sanction pursuant
to this section shall be imposed only after notice to the party
against whom the sanction is proposed to be imposed and opportunity
for that party to be heard.
(c) An award of attorney's fees and costs as a sanction pursuant
to this section is payable only from the property or income of the
party against whom the sanction is imposed, except that the award may
be against the sanctioned party's share of the community property.

 

[Zigner]

Not entirely true.

Fees can be awarded for 2 reasons:

1. If the filing is frivolous, the judge may make the person who filed it pay as a penalty for filing frivolous actions.

Never said otherwise...

2. If one party makes a lot more money than the other party, the court may make him/her pay the other one's fees. However, this is more common at the time of the divorce rather than in a later filing - as in this particular case.

Financial disparity between the parties is NOT a factor used in the determination of an award of fees per section 271:


271. (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. In
making an award pursuant to this section, the court shall take into
consideration all evidence concerning the parties' incomes, assets,
and liabilities. The court shall not impose a sanction pursuant to
this section that imposes an unreasonable financial burden on the
party against whom the sanction is imposed. In order to obtain an
award under this section, the party requesting an award of attorney's
fees and costs is not required to demonstrate any financial need for
the award.

 

[Zigner]

Re: Sanctions under 271

(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. In
making an award pursuant to this section, the court shall take into
consideration all evidence concerning the parties' incomes, assets,
and liabilities. The court shall not impose a sanction pursuant to
this section that imposes an unreasonable financial burden on the
party against whom the sanction is imposed. In order to obtain an
award under this section, the party requesting an award of attorney's
fees and costs is not required to demonstrate any financial need for
the award.
(b) An award of attorney's fees and costs as a sanction pursuant
to this section shall be imposed only after notice to the party
against whom the sanction is proposed to be imposed and opportunity
for that party to be heard.
(c) An award of attorney's fees and costs as a sanction pursuant
to this section is payable only from the property or income of the
party against whom the sanction is imposed, except that the award may
be against the sanctioned party's share of the community property.

Thanks - and what did this accomplish without additional narrative?

 

[Zigner]

The code sections given are totally relevant as the OP is trying to affirm the family court's original order.

The other posters who have decried my posts need to read the sections prior to comment. If they don't think my advice applies, they may want to try giving some tangible advice, pointing out code sections as opposed to spewing opinion without backup.

Instead of spewing code sections with direction, it's up to YOU to point out why you think they're relevant. Once you make the post, the ball's in YOUR court.

 

[dmcc10880]

Don't try to spin this. I gave relevant code sections to support the OP's response. The code speaks for itself. No need for additional narrative as they pertinent parts are bolded.

If you wish to refute, please feel free to explain why the code sections provided are not relevant instead of spewing one-liners.

The ball is in the OP's court to figure it out for himself as it relates to his position.

If he can't figure it out for himself, then he should consult with an attorney.

Zigner, I know it's only just after noon on the west coast, but you need a drink.

 

[dmcc10880]

Thanks - and what did this accomplish without additional narrative?

I accomplished the fact that you contradicted yourself. LOL

You wrote, "Financial disparity between the parties is NOT a factor used in the determination of an award of fees per section 271:"

Then you copied and pasted 271 which specifically states:

"In making an award pursuant to this section, the court shall take into
consideration all evidence concerning the parties' incomes, assets,
and liabilities. The court shall not impose a sanction pursuant to
this section that imposes an unreasonable financial burden on the
party against whom the sanction is imposed."

 

[Zigner]

I accomplished the fact that you contradicted yourself. LOL

You wrote, "Financial disparity between the parties is NOT a factor used in the determination of an award of fees per section 271:"

Then you copied and pasted 271 which specifically states:

"In making an award pursuant to this section, the court shall take into
consideration all evidence concerning the parties' incomes, assets,
and liabilities. The court shall not impose a sanction pursuant to
this section that imposes an unreasonable financial burden on the
party against whom the sanction is imposed."

Please feel free to point out where section 271 says that (using hypothetical numbers) simply because party 1 makes $100,000 per year and party 2 makes $25,000 per year, it shall determine if an award is made

Or, maybe it was that big ol' word (disparity) that I used that confused you...

 

[dmcc10880]

Please feel free to point out where section 271 says that (using hypothetical numbers) simply because party 1 makes $100,000 per year and party 2 makes $25,000 per year, it shall determine if an award is made

Or, maybe it was that big ol' word (disparity) that I used that confused you...

It was bolded. A reasonable person can discern the meanings. For about the third or fourth time this week, at least admit you're wrong. Reading IS fundamental.

 

[Zigner]

It was bolded. A reasonable person can discern the meanings. For about the third or fourth time this week, at least admit you're wrong. Reading IS fundamental.

What is bolded does NOT say that financial disparity shall be used to make a decision. Get it?

 

[dmcc10880]

What is bolded does NOT say that financial disparity shall be used to make a decision. Get it?

Don't play the semantics card.

That, "the court shall take into consideration all evidence concerning the parties' incomes, assets, and liabilities. The court shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the
party against whom the sanction is imposed."

Let me say this verrrrry slowwwwly for you.

The court looks at the "parties'" incomes, assets and liabilities. The court will not impose a sanction on a party who will place an unreasonable financial burden on the party against whom the sanction is imposed.

Lots of money= sanctioned.
No money= not sanctioned.

She makes $180k. He makes $60k. She more likely than he can afford the sanction if imposed. She brought the action. He's responding. Court finds her motion frustrating to the court. He asks for sanctions. Based on her income, the sanctions may be granted.

Just admit that he is more likely to be awarded sanctions and get them, than she is.

It's obvious that y o u d o n o t g e t i t.