Pony1 said:
Hi, I'm in CA
My child's biological mother just served me. On the papers there was a spot for attorney's fees. It stated that she wanted me to pay her attorney's fees. In what cases would the judge allow this? I make very little money, she had her sister pay for her attorney, and she's the one taking me to court? Why would they make me pay? By her response, it stated "code 271 if applicable". What is that? Is that a law that explains the circumstances of when it would be appropriate for one party to pay another party's attorney fees? If you know what code 271 is, please explain. Your advice and help is greatly appreciated.
My response:
Authority for the award of attorney fees, sanctions, and costs in family law proceedings is set forth in various provisions of the Family Code. In addition, attorney fees and costs provisions of the Civil Code and Code of Civil Procedure pertaining to the conduct of civil litigation generally may also apply to family law proceedings.
The primary purpose of an award of attorney fees and costs in a family law case is to provide each of the parties with an amount of money adequate to properly litigate the controversy. [In re Marriage of Huntington (1992) 10 Cal.App.4th 1513, 14 Cal.Rptr.2d 1] Public policy favors providing "a parity between spouses in their ability to obtain legal representation." [Re Marriage of Green (1989) 213 Cal.App.3d 14, 261 Cal.Rptr. 294] Besides providing for equal access to representation, an order awarding attorney fees and costs may also be imposed as a sanction for the purpose of discouraging conduct that frustrates settlement and thereby increases the cost of litigation.
To achieve these purposes, the Family Code contains several grants of authority to the courts in marital proceedings.
Family Code § 2010(f) broadly confers jurisdiction "to inquire into and make orders that are appropriate" concerning the award of attorney fees and costs in marital termination proceedings.
Family Code §§ 2030 et seq. govern awards of fees and costs based on need in marital termination proceedings. As the principal authority for fee awards in marital termination proceedings, Fam C § 2030(a) provides that during the pendency of a dissolution, nullity, or legal separation proceeding, the court may, after determining the parties’ needs and ability to pay, order any party except a governmental entity to pay the amount of attorney fees and costs reasonably necessary to enable another party to maintain or defend the proceeding. Furthermore, the court may augment or modify the original award for attorney fees and costs as may be reasonably necessary for the prosecution or defense of the proceeding, including any appeal.
Family Code §§ 270 et seq. apply to awards of fees and costs in all Family Code proceedings. Fam C § 271 authorizes the court to award fees and costs as a sanction for conduct by a party or attorney that frustrates the policy of promoting settlement and reducing the cost of litigation by encouraging cooperation.
Family Code §271(a) provides that the court may impose an award of attorney fees and costs "in the nature of a sanction," based on the extent to which the conduct of a party or attorney furthers or frustrates the policy of the law to promote the settlement of litigation and to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. The statute requires the court to consider all evidence concerning the parties’ incomes, assets, and abilities. However, the requesting party is not required to demonstrate any financial need for the award; this provision of Fam C §271(a) overrules case law holding that need was a requisite. [See, for example, In re Marriage of Joseph (1990, 1st Dist) 217 Cal App 3d 1277, 266 Cal Rptr 548]
Unlike discovery sanctions, the amount of the sanctions is not limited to the costs and fees attributable to the bad conduct. [In re Marriage of Quay (1993, 6th Dist.) 18 Cal.App.4th 961, 22 Cal.Rptr.2d 537]
Fam C §271(a) also provides that court may not impose a sanction that imposes an unreasonable financial burden on the sanctioned party. The amount of the award should be "scaled" to the parties’ comparative wealth. [Re Marriage of Norton (1988, 2nd Dist) 206 Cal App 3d 53, 253 Cal Rptr 354] The award is payable only from the property or income of the sanctioned party, including that party’s share of the community property. [Fam C §271(c)]
A spouse’s conduct falling short of the bad faith required for sanctions under CCP §§128.5 et seq. may be considered by a court in awarding attorney fees as a sanction under Fam C §271. [In re Marriage of Melone (1987, 1st Dist) 193 Cal App 3d 757, 238 Cal Rptr 510, fn. 5 (awarding sanctions for failure to stipulate to support or appear at hearing, and for pursuit of meritless appeal); Re Marriage of Norton (1988, 2nd Dist) 206 Cal App 3d 53, 253 Cal Rptr 354 (sanctions for unwarranted claims and proceedings intended to harass other party)] However, in the absence of a finding of unreasonable behavior or harassment, merely failing to respond to settlement offers may be insufficient to sustain an award of fees as a sanction. [In re Marriage of Aninger (1990, 2nd Dist) 220 Cal App 3d 230, 269 Cal Rptr 388 (substantially reducing sanctions award)]
The same circumstances may support an award of fees based on the need to maintain or defend proceedings, under Fam C §2030, and an award of fees as sanctions, under Fam C §271. [In re Marriage of Green (1992, 1st Dist) 6 Cal App 4th 584, 7 Cal Rptr 2d 872 (multiple actions filed by the husband for the purpose of discouraging the wife and her counsel in dissolution proceedings)]
As pointed out by the court in In re Marriage of Green (1992, 1st Dist) 6 Cal App 4th 584, 7 Cal Rptr 2d 872, above, a larger recovery is likely if the award is made as a sanction. However, both Fam C §2030 and Fam C §271 should be relied on in a request for fees if warranted by the circumstances, since it may be difficult to predict the trial court’s choice of the applicable statute.
The court may impose fees as sanctions against a party based on the party’s own conduct or for the conduct of an unprofessional counsel. The court is not obligated to "sort out the relative culpability of client or counsel" and may impose sanctions even in the absence of evidence that the client personally engaged in obstreperous conduct. An award under Fam C §271(a) can be imposed only against a party and not an attorney. Attorneys are subject to sanctions under CCP §128.5. [In re Marriage of Daniels (1993, 1st Dist.) 19 Cal.App.4th 1102, 23 Cal.Rptr.2d 865]
Good luck to you - - you're going to need it.
IAAL
