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Court of Appeal:
Judgment for Attorney Fees in Divorce Case Doesn’t Expire
Justices Broadly Construe Statute Deviating From Rule Requiring Renewal of Judgment Before 10-Year Mark
By a MetNews Staff Writer
The Court of Appeal for this district has held that under the plain meaning of a Family Code section, an ex-wife can pursue collection of an attorney-fee award in her dissolution action that was made nearly 12 years before she filed an application for a writ of execution without having sought a renewal of the judgment as the 10-year mark approached, rejecting the contention that this contravenes legislative intent.
Justice Victor Viramontes authored the opinion, filed Friday. It affirms an order by Los Angeles Superior Court Judge Elizabeth Scully denying a motion by an ex-husband, Shahriyar Shayan, for an order quashing a writ of execution obtained by his former wife, Zohreh McIntyre Shayan.
The ex-wife wants to collect $125,626.20 based on a 2010 award of attorney fees and costs by then-Los Angeles Commissioner (now Judge) David J. Cowan. At issue is whether the order expired after 10 years.
CCP Sections
Outside the realm of family law, Code of Civil Procedure §683.020 provides that a money judgment expires after 10 years, but §683.130 of that code sets forth procedures for obtaining a renewal of the judgment for another 10 years. Code of Civil Procedure §683.310 provides that those sections do “not apply to a judgment or order made or entered pursuant to the Family Code.”
Family Code §291 says, in part:
“(a) A money judgment or judgment for possession or sale of property that is made or entered under this code, including a judgment for child, family, or spousal support, is enforceable until paid in full or otherwise satisfied.
“(b) A judgment described in this section is exempt from any requirement that a judgment be renewed. Failure to renew a judgment described in this section has no effect on the enforceability of the judgment.”
Appellant’s Argument
The ex-husband points in his brief on appeal, drafted by Koreatown attorney Stuart J. Faber, to the “maxim of statutory construction… that the expression of certain items in a statute necessarily involves exclusion of other things not expressed,” arguing that attorney-fee awards are excluded from the ambit of §291 because they are not mentioned. Faber wrote:
“For reasons difficult to explain, the Legislature, when it enacted Section 291, excluded money judgments from the renewal requirement, then added a list of specific money judgments which were also immune from the renewal requirement. Child, spousal and family support judgments are money judgments. So why specifically add them to the statute? And, why not add judgments for attorney’s fees? The only reasonable explanation is that the Legislature intended to exclude the latter judgments from the benefits of the statute. In other words, the only reasonable explanation is that the Legislature intended that judgments for attorney’s fees expire if not renewed within ten years from the date of entry of the judgment.”
The lawyer went on to say:
“[S]ince support of children and families is so critical to family welfare, the Legislature chose to cast their eternal survivability in stone. They did so by specifically listing support in Family Code §291(a). The Legislature did not view attorney’s fees as equally critical to the welfare of the family, perhaps because such fees do not contribute to the support of children or families. Therefore, the Legislature, by not listing attorney’s fees in Section 291, expressed its intention to exclude attorney’s fees from Family Code §291 protection.”
Reasoning Rejected
Unpersuaded, Viramontes declared:
“[B]oth case law and the definition of a money judgment under the Code of Civil Procedure establish that an order for attorney fees constitutes a money judgment….Moreover, the parties both agree that an attorney fees order is a money judgment. Thus, the plain language of Family Code section 291, which exempts money judgments entered under the Family Code from the 10-year limitation period and the renewal requirement, includes money judgments meant to satisfy payment for attorney fees.”
Dismissing the contention that §291 can be read as being
inapplicable to awards of attorney fees, he said:
“[W]e decline to read an ambiguity into Family Code section 291 where none
exists.”
While finding that a look at legislative intent is therefore unnecessary, the justice remarked that the history of §291 shows that it “was meant to simplify the law exempting family court judgments from the generally applicable rules to enforce judgments in order to protect the rights of family litigants while recognizing the unique challenges those litigants face.”
He added that his interpretation of §291 comports with common sense, saying:
“Often, an award of attorney fees is necessary to vindicate important statutory rights….Indeed, this need is expressly identified and provided for in the Family Code. Family Code section 2030 allows the family court to order one party to pay to the other party ‘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.’…
“As such, it makes no sense for Family Code section 291 to exempt judgments that determine important rights, e.g., child, spousal, and family support, but not to exempt those judgments for attorney fees which are often necessary to enforce those rights in the first instance.”
The case is In re Marriage of Shayan, B323455.
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