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Change in DVRA’s Attorney-Fee Provision Is Retroactive, Court of Appeal Declares
By a MetNews Staff Writer
A woman who doused a man and his bed with water during a spat and had a domestic violence restraining order imposed on her was properly directed to pay his attorney fees in the amount of $6,000 under Family Code §6344 as it read at the time of the 2023 hearing on fees, not under its wording when the restraining order was issued in 2022, Div. Seven of this district’s Court of Appeal held yesterday.
Under the amended statute, fees must be awarded to a prevailing petitioner in a proceeding under the Domestic Violence Prevention Act “if appropriate based on the parties’ respective abilities to pay.” Under the prior version, gaining fees was more difficult.
Alameda Superior Court Judge Rebekah Evenson, sitting on assignment to Div. Seven, authored the opinion. It affirms a March 24, 2023 order by Los Angeles Superior Court Judge Timothy Martella.
Evanson’s Explanation
Under that order, Kerry Ann Calkins must pay fees directly to petitioner Peter Henri Dragonas III’s attorney, David Diamond, with a “minimum monthly payment amount” to be worked out between the parties. Explaining why the current version of the statute applies, Evenson said:
“We hold that the current version of section 6344 applies retroactively to all cases pending on its effective date, including this case. Notwithstanding the presumption against retroactive application of new statutes, amendments to the Family Code are governed by section 4, which establishes a general rule of retroactivity. Additionally, attorney fee statutes are procedural in nature, and a newly enacted attorney fee statute applies to cases pending on its effective date.”
Calkins argued that Martella failed to take into account the parties’ respective incomes, insisting that Dragonas has the ability to pay Diamond and she doesn’t.
Ability to Pay
Responding to Calikins’s contention, Evenson wrote:
“She… demonstrated a very limited ability to pay attorney’s fees. She did not, however, show that she was unable to afford any amount in fees. The trial court awarded $6,000 in fees, less than half of the $13,659 requested by Dragon[a]s. The order contemplates that Calkins will pay the fees in installments, rather than a lump sum. This was not an abuse of discretion and does not demonstrate that the award was the result of passion or prejudice.”
The visiting jurist continued:
“The reduced fee amount and the installment structure indicate that the fee award resulted from the court’s exercise of discretion after considering the facts of the case, including Calkins’s limited income….Should Calkins find herself unable to afford the installment payments, she can file an appropriate request to modify the installment payments, with sufficient facts to demonstrate her inability to pay.”
Assaultive Conduct Denied
The opinion notes that Calkins admitted pouring water on Dragonas—which was videotaped—but denied assaultive conduct. However, in his request for a domestic violence restraining order, asserted in connection with the incident complained of:
“She eventually became physical and refused to leave. The police literally had to arrest and take her away.” Attached was a Sheriff’s Department inmate report showing that Calkins had been arrested by South Pasadena police on June 30, 2022, at 2:20 a.m. and released shortly after noon on a $20,000 bond.
The one-year restraining order was renewed on Sept. 27, 2023, for a five-year period.
The case is Dragones v. Calkins, 2024 S.O.S. 219.
(Evanson explained in a footnote that “Dragones” is spelled in the opinion as it appears in the caption in the trial court. However, the name is spelled “Dragonas” in papers filed by that party as well as in public records.)
On appeal, Dragonas was represented by Diamond, of Burbank, and Orange County attorney Bruce A. Boice acted for Calkins, as he had in the trial court.
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