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Court of Appeal:
Judge Must Swiftly Decide Motion for Fees Pendente Lite
Fifth District Says Jurist Who Did Not Act on Request in Divorce Case Until After Trial Disregarded Duty
By a MetNews Staff Writer
The Fifth District Court of Appeal has held that a judge of the Kern Superior Court was derelict in failing to address a woman’s request made early in dissolution of marriage proceedings for an award of attorney fees pendente lite until after the trial, spelling out that there is a duty to decide such a motion with “reasonable promptness” and declaring that the failure to do so, under the facts, requires a reversal of the judgment.
The opinion, filed Friday, says that the issue presented is one “that has not been addressed in a published opinion” with respect to when a ruling must be made on a request for a subsidizing of attorney fees in a family law case by the other party.
Appellant Dawn Bear Knox made a motion for attorney fees on May 10, 2018, more than a year before trial. At first, she was represented by counsel, but then was laid off, and lacked financial resources to pay for such services.
Declaration to Judge
She told Judge Gloria J. Cannon on May 23, 2019, the first day of trial:
“I’ve gone through two attorneys now. That’s why I’m now representing myself. I can no longer afford it.”
Her husband, who was employed, was represented by a lawyer.
It was not until after the trial that Cannon, on Nov. 4, 2019, acted on Knox’s motion. She denied an award of fees that had been incurred by Knox, citing deficiencies in the application.
The matter of the fees was a reserved issue; a dissolution of the marriage had been decreed the previous month.
Error Was Prejudicial
Justice Donald R. Franson Jr. said in Friday’s opinion:
“The failure to rule was prejudicial because self-represented Dawn bungled a key issue during the trial,” namely, whether a residence owned by the husband before marriage had been transmuted, as she contended, into community property.
Franson commented that if the litigant had been represented by counsel, “it is reasonably probable” that the error would not have been made.
The jurist pointed to Family Code §2030 which provides, with italicizing added by him, that courts in dissolution of marriage cases and certain other proceedings “shall ensure that each party has access to legal representation, including access early in the proceedings,” by ordering one party to pay the other’s attorney fees, where appropriate.
Tardiness of Ruling
Franson said:
“Those phrases unambiguously require the family court to hear and resolve the request during the course of the proceeding. In other words, a family court that does not resolve a request for pendente lite attorney fees until after trial has not ensured a self-represented party’s access to legal representation ‘during the pendency of the proceeding,’ much less ‘early in the proceedings.’ ”
He noted that the Legislature, in amending §2030 in 2010 in response to a Judicial Council task force report, proclaimed the value to the justice system of “early need-based attorney’s fee awards.”
In a footnote, Franson observed:
“As a practical matter, waiting until after trial to rule on attorney fees effectively denies the request for pendente lite attorney fees. If the subject of attorney fees is addressed in the final judgment, the delay deprived the request of it pendente lite quality.”
Sec.2031
Family Code §2031(a)(2) requires that a judge, in hearing divorce cases, “shall rule” on a request for attorney fees within 15 days of a hearing on the motion but, Franson said, “the statute establishes a mandatory deadline for ruling after the request is heard and the matter submitted.” He acknowledged that the code “does not expressly impose a deadline for hearing a request for pendente lite attorney fees or a limit on the number or length of continuances.”
However, in light of the relevant considerations, he declared that “it is reasonable to infer… that the obligation to ensure access early and throughout the proceeding includes an obligation to hear the request for pendente lite attorney fees with reasonable promptness.”
Franson declared that Cannon breached her “statutory obligation” when she “failed to address and decide Dawn’s request for pendente lite attorney fees with reasonable promptness.”
He remarked that “the erroneous failure to rule was not rendered harmless by any deficiencies in Dawn’s request because a reasonably prompt denial would have given Dawn an opportunity to cure the defects.”
Further Proceedings
Franson specified that in light of prejudicial error, “we must reverse the judgment (which places all reserved issues at large) and remand the case for further proceedings” which “shall include a hearing on Dawn’s request for pendente lite attorney fees and a decision on that request before the new trial is started.”
Given that more than four years have elapsed since Dawn Knox filed her request for attorney fees pendente lite, the justice said, the Superior Court must allow her to file an updated request, and correspondingly permit her ex-husband, Blair Becker Knox, to file a response.
The case is In re the Marriage of Knox, 2022 S.O.S. 4332.
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