NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WOODS, Acting P. J.
Earl R. Hagaman appeals from the court order awarding Barbara J. Hagaman, his former spouse, additional pendente lite attorney's fees. The court's prior order awarding Barbara pendente lite attorney's fees was affirmed on appeal. The main issue raised is Earl's claim that the court abused its discretion in making the award as it simply redistributed money from the greater income party (himself) to the lesser income party (his former wife) rather than engaging in a nuanced process to get the "big picture" of the case. We affirm.
FACTURAL AND PROCEDURAL SYNOPSIS
On May 21, 1982, the trial court granted the parties a judgment of dissolution, status only.
Earl relocated to New Zealand in the 1980's and built a substantial fortune there, primarily in the tourism industry. In 2006, Barbara initiated proceedings in the New Zealand courts seeking millions of dollars in allegedly undivided community assets. Based on forum non conveniens, the New Zealand court dismissed the action and ordered Barbara to pay Earl approximately NZ$20,000
In 2006, Barbara filed an action in the Los Angeles County Superior Court dissolution proceeding to divide the parties' undivided assets, claiming they were worth at least $25 million at the date of separation.
In 2006, Earl moved for entry of judgment, as a final judgment, of a 1983 interim agreement for partial distribution of community property (Interim Agreement) that had been entered into by the parties. Earl argued that agreement was a complete distribution of community property.
The Interim Agreement recited that issues of community property division were still in dispute, but the parties were able to "effect this partial and interim distribution of some of the community property." The Interim Agreement stated that both parties had been advised by independent counsel and independent accountants with respect to the agreement, that the division of property therein was intended to be an equal division of community property, and that it represented the entire agreement between the parties. The agreement provided Barbara was allowed to pursue her claim that there were undivided assets at any time.
Under the Interim Agreement, Earl agreed to pay Barbara's attorney's fees of $110,000 for:
The agreement contained an attorney's fees provision, stating:
The trial court denied Earl's motion, impliedly finding the Interim Agreement was not a final agreement for the complete distribution of community property. Another division of the Court of Appeal denied Earl's petition for a writ of mandate in May 2007.
In June 2007, Barbara filed an order to show cause (OSC) requesting pendente lite attorney's fees of $500,000 and costs of $150,000. Earl refused to provide any information concerning his income, assets or expenses, asserting they were "`not applicable as [he] acknowledges that he has the ability and is willing to pay any reasonable fees ordered.'" The trial court granted the request noting that the judge in the dissolution had characterized Earl's testimony as "`persistently evasive'" and that Earl had "a history of recalcitrance in this action and the court believes [he] will continue to be recidivist and recalcitrant.'"
Earl appealed the order arguing the amount of fees awarded was unreasonable; Barbara should have been awarded a smaller amount of fees; and the issue should have been reserved until the prevailing party had been determined. Division Six affirmed the order, stating:
In July 2010, the trial court granted Earl's motion for trial preference and set the trial for November 10, 2010.
II. Challenged Fee Order
On August 24, 2010, Barbara filed an ex parte OSC requesting an additional $1,015,000 in attorney's fees and $365,000 in costs. Barbara stated, "It has been extremely difficult and costly in terms of fees and expenses to deal with [Earl] since I filed this action." Barbara argued, "Most significantly it is [Earl's] own unrepentant attitude at failing to honor his fiduciary obligations and frankly disclose his assets and income that adds significantly to the costs of this proceeding." Because Earl refused to disclose information about the nature and extent of community property, Barbara had to file motions to compel him to respond to discovery. Barbara estimated the 1983 value of the undivided community property was in excess of $14 million and the 1983 estimated value of other assets exceeded $10 million.
Barbara argued the case presented complex factual and legal challenges involving the tracing and disposition of millions of dollars of community property, which had been transferred to New Zealand and other foreign jurisdictions during the 26 years since the parties separated, and would require an extremely capable forensic accountant and an experienced attorney to litigate against one of the top family law litigation firms in the state. Barbara noted Earl's assets exceeded $130 million, which was 250 times greater than her funds. Barbara argued that the great disparity in wealth established a basis for the requested fees and costs.
Barbara stated Earl led a life of casual elegance and wealth and appeared to have no limitation on the amount of money he could spend on luxuries and legal services. In 2008, the New Zealand Business Review listed Earl on its "Rich List" and estimated his wealth at that time to be NZ$160 million. Barbara argued that even if the court accepted Earl's assertion he had no income, he admitted he had assets of $6,081,961, of which at least $2 million was in cash.
In contrast, Barbara was 70 years old and retired. Barbara's income was limited to social security of $737 per month, and her only separate property was a bank account with a balance of approximately $23,000 and her condominium in Fullerton, California, valued at approximately $510,000. Barbara's expenses were $3,347 per month. Barbara had re-married in November 2003, and her husband had retirement income of approximately $5,645 per month, a home in Florida, and investment income.
Barbara had incurred more than $717,011 in fees and costs through July 2010. Barbara stated she did not have sufficient resources to pay the fees and costs that would be required to finance further discovery and litigation and requested the court make appropriate orders to give her the financial ability to present the evidence which Earl had failed to disclose so the court could divide the parties' community property.
Brian K. Brandmeyer, Barbara's counsel, attached his declaration to the OSC explaining in detail the work that had been completed and the work to be done as well as the estimated fees and costs. Brandmeyer included the hourly rates for various services and estimated it would take 500 attorney hours over a 50-day trial to complete the case with total legal fees of $1,013,950. The estimated total costs of $365,250 included the forensic accountant's fees, travel costs, discovery referee, court reporter, videographer and expert fees as well as costs for trial and exhibit preparation.
The declaration of Michael Kaplan, Barbara's forensic accountant, was attached to Barbara's OSC along with his billing records. From June 2006 through July 2010, Barbara had incurred fees and costs with Kaplan's office in the amount of $102,734. Kaplan explained for what those fees and costs had been incurred and estimated an additional $195,250 for forensic accounting services would be reasonably needed prior to trial and identified the work to be completed.
Earl submitted a nearly 300-page response to the OSC, requesting Barbara's request be denied in its entirety. Earl argued the parties' assets had been divided by the Interim Agreement, which he claimed was final; the requested fees and costs were extraordinarily high (even though he had incurred $1,443,208 in fees and costs); he lacked the ability to "continue to fund and defend against Barbara's sham litigation" (emphasis deleted); and the court should defer ruling on the request until the time of trial. Earl claimed that Barbara's request was not supported by facts and/or evidence and that many of the tasks for which Kaplan and Brandmeyer stated they needed fees had been listed in the prior OSC.
Earl disagreed with Barbara's estimate of his personal wealth, stating he did not really own all the hotels and companies he appeared to own because, according to New Zealand law, he was only considered a "trustee" and not the "owner" of the companies and could not receive any income from them. Earl attached declarations from two New Zealand barristers to that effect. Earl claimed that if he had to continue to pay his and Barbara's fees, "his entire estate could be absorbed by the payment of such fees." Earl asserted that as a result of the earthquakes in New Zealand, he had to front funds to replace furniture, furnishings and appliances (but admitted he would be reimbursed by insurance companies). Earl wanted the court to take into consideration his expenses because he "need[ed] any cash available to him now to care for his own immediate family during this disastrous time." Earl noted Barbara had access to his financial records having stolen them in 1982.
Earl submitted a separate property declaration showing he had $5,727,255 in separate property assets and an income and expense declaration showing social security income of $1,572 per month and rental and investment income of $12,516.70 per month. Earl declared his expenses were $98,439.41, making his total taxable income a negative $85,922.71 per month.
In her reply, Barbara asserted that Earl's argument the Interim Agreement was final had been rejected by the trial court and the Court of Appeal and that issues regarding the interpretation of that agreement were not before the court. Barbara noted it was now two months before commencement of a complex 50-day trial and she had no funds to pay the enormous fees and costs necessary to present her case, the trust fund accounts from the previous fee order had been depleted, and she owed more than $50,000 in unpaid fees and costs. Earl continued to outspend Barbara by almost double. In April 2010, Barbara spent $611,820, and Earl spent $1,004,766. In August 2010, Barbara spent $807,591, and Earl spent $1,443,208.
Barbara claimed Earl had failed to provide full disclosure of his assets, and even if the court accepted his figures, he still had at least 12 times her wealth. In response to Earl's claim he did not own companies in New Zealand, Barbara stated:
Barbara disagreed with Earl's claim she should have completed some of the tasks listed in her request with funds from the prior fee award, noting that the work of her attorney and accountant was accounted for in their billing, of which Earl did not challenge the accuracy, reasonableness or necessity, and that she did not have funds left over as she had not anticipated the extent of the litigation in which Earl would engage. Barbara argued that the amount of fees and costs was reasonable and appropriate and that deferring the issue to trial would abandon her at the time she most needed support.
The OSC was heard over two days in September 2010. They parties did not testify, but counsel argued.
Brandmeyer argued that Earl and his counsel had over-litigated the case to increase fees and costs: Earl filed multiple motions and took depositions that lasted five or six days; made extensive evidentiary objections; and attorney's fees came into play because Earl had attempted to "stonewall" everything Barbara attempted to do. Brandmeyer noted that as soon as the first fee order was made, Earl had appealed it, leaving the case "on the shelf" for 26 months because Barbara could not proceed without funds. After the fee order was affirmed, Earl filed multiple motions and noticed depositions; Barbara spent $450,000 or $500,000 defending against Earl's positions; the remainder was spent on tasks set forth in the prior fee declaration. Numerous depositions had been taken; 25 to 40 days of depositions had been planned and/or scheduled, with more planned to be scheduled after expert declarations and lists were exchanged. Approximately 10,800 documents had been Bates stamped for trial.
Brandmeyer posited that the prior fee award of $650,000 had proven to be inadequate because of the tremendous amount of litigation they had to deal with, e.g., between August 24 and September 14, there had been 15 different litigation activities, including motions, oppositions, hearings and ex partes. Brandmeyer noted "this is a highly complex contentious piece of litigation occurring in two continents" and asserted that neither his firm nor his client could afford to finance it.
Ronald Anteau, Earl's counsel argued Barbara was not entitled to any fees because of the Interim Agreement, there were no facts supporting her claim of omitted assets, she had no likelihood of prevailing at trial, a statute of limitations and laches applied to her claims, and the court should wait to rule on fees until the date of trial to determine whether Barbara could even prevail. Anteau claimed Barbara had completed no discovery until just before the OSC hearing, and the only task she had completed was responding to form interrogatories. Although Anteau asserted Barbara's fee request was excessive, unreasonable and duplicative, he could not answer which specific portions were so. Anteau did not argue Earl did not have greater financial resources.
The court stated:
The court took the matter under submission and subsequently entered an order ordering Earl to pay Barbara $450,000 in attorney fees forthwith and $400,000 in attorney's fees within 15 days of the order (a total of $850,000). The remainder of the request ($576,400) was reserved for trial.
Earl filed a timely notice of appeal from the fee award order. Judge Shaller granted Barbara's request to stay the case until she received the court-ordered fees.
Earl contends the court abused its discretion when it awarded pendent lite fees because it did not engage in a nuanced process to get a "big picture" of the case; upholding the award would undermine the public policy behind pendente lite fee awards; pursuant to the Interim Agreement, the issue should have been reserved until the prevailing party was determined; and Barbara's failure to file a current FL-160 form required the rejection of her fee request.
I. Standard of Review
"`"California's public policy in favor of expeditious and final resolution of marital dissolution actions is best accomplished by providing at the outset of litigation, consistent with the financial circumstances of the parties, a parity between spouses in their ability to obtain effective legal representation."' `A motion for attorney fees and costs in a dissolution action is addressed to the sound discretion of the trial court, and in the absence of a clear showing of abuse, its determination will not be disturbed on appeal. The discretion invoked is that of the trial court, not the reviewing court, and the trial court's order will be overturned only if, considering all the evidence viewed most favorably in support of its order, no judge could reasonably make the order made.' [¶] However, `while the court has considerable latitude in fashioning or denying a pendente lite fee award its decision must reflect an exercise of discretion and a consideration of the appropriate factors.' The trial court's discretion in this area is thus limited by the statutes which enable the exercise of that discretion." (Citations omitted.) (In re Marriage of Keech (1999) 75 Cal.App.4th 860, 866.) Of course, it is Earl's "burden to affirmatively demonstrate error." (In re Marriage of Gray (2002) 103 Cal.App.4th 974, 978.)
As the court noted in Keech, "Under section 2030, subdivision (a): `During the pendency of a proceeding for dissolution of marriage . . ., the court may, upon (1) determining an ability to pay and (2) consideration of the respective incomes and needs of the parties in order to ensure that each party has access to legal representation to preserve all of the party's rights, order any party . . . to pay the amount reasonably necessary for attorney's fees and for the cost of maintaining or defending the proceeding.' Under section 2032: `(a) The court may make an award of attorney's fees and costs under Section 2030 . . . where the making of the award, and the amount of the award, are just and reasonable under the relative circumstances of the respective parties. [¶] (b) In determining what is just and reasonable under the relative circumstances, the court shall take into consideration the need for the award to enable each party, to the extent practical, to have sufficient financial resources to present the party's case adequately, taking into consideration, to the extent relevant, the circumstances of the respective parties described in Section 4320 [the factors for determination of "permanent spousal support"]. . . . Financial resources are only one factor for the court to consider in determining how to apportion the overall cost of the litigation equitably between the parties under their relative circumstances.'" (Italics deleted.) (In re Marriage of Keech, supra, 75 Cal.App.4th at pp. 866-867.)
"In addition to its consideration of what is `just and reasonable' under the `relative circumstances' of the parties (§ 2032), and what is `reasonably necessary' to maintain or defend the action, the trial court is required to consider certain factors developed in the case law for fixing the amount of a reasonable need-based fee award, including: the nature of the litigation; its difficulty; the amount in controversy; the skill required and employed in handling the litigation; the attention given; the success of the attorney's efforts; the attorney's learning and experience in the particular type of work demanded; the intricacies and importance of the litigation; the labor and the necessity for skilled legal training and ability in trying the cause; and the time consumed." (Citation omitted.) (In re Marriage of Braud (1996) 45 Cal.App.4th 797, 827, fn. 30.)
II. The Big Picture
Earl cites Alan S. v. Superior Court (2009) 172 Cal.App.4th 238 as support for the fact a court needs to consider the "big picture" not just level the playing field in ruling on requests for pendente lite fees. The court there reasoned: "Reading section 2032 together with section 4320, one cannot escape the idea that a pendente lite fee award should be the product of a nuanced process in which the trial court should try to get the `big picture' of the case, i.e., `the relative circumstances of the respective parties' as the statute puts it. (§ 2032, subd. (a).) Conversely, determination of a pendente lite attorney fee order is definitely not a truncated process where the trial court simply (a) ascertains which party has the higher nominal income relative to the other, and then (b) massages the fee request of the lesser-income party into some manageable amount that feels like it will pass an abuse of discretion test." (Id. at p. 254.) In Alan S., the court held the trial court failed to consider a number of relevant factors and abused its discretion because it had ordered the husband to pay the wife's fees such that he was left without resources to pay his own fees. (Id. at pp. 243, 255-258.)
Earl contends that the trial court failed to exercise its discretion because it did little more than effectuate a redistribution of wealth without any consideration of the big picture as the big picture bears upon the question of what fees are reasonably necessary. (See In re Marriage of Gray (2007) 155 Cal.App.4th 504, 515.) Earl's position that the court did not consider anything but his greater worth is based on the court's comments, quoted above, about leveling the playing field and being compelled to give the parties equal access. Earl further contends the court mistakenly believed it lacked the authority or discretion to deny the request, meaning the court failed to exercise its discretion because the sole factor the court seemed to consider was his superior financial resources and because the court seemed to ignore the fact his expenses now exceeded his income.
Earl also noted that Barbara's Exhibit Q, a list of companies in which he is listed as a shareholder, does not support his ability to pay fees as he is only a trustee and not entitled to receive any payments and Barbara had not tied any of those companies to an undivided community property asset. However, at argument, Anteau, Earl's counsel, stated that Judge Shaller had indicated that at trial, it would first determine if there were any undivided community assets and then those assets could be traced.
In Keech, the court determined that the trial court had abused its discretion in ordering the husband to pay a share of the wife's attorney and accountant fees because it had not considered husband's ability to pay wife's fees, the respective litigation needs of the parties or whether the fees allegedly incurred were reasonably necessary, noting the court had not been apprised of the nature and extent of services rendered. (In re Marriage of Keech, supra, 75 Cal.App.4th at pp. 867-871.) In the case at bar, Barbara's attorney and accountant both attached declarations detailing the nature and extent of the requested fees.
Earl suggests the court abused its discretion because it did not inquire into the reasonableness of the fees because it did not consider Barbara's long delay in bringing action (which he claims increased the difficulty in connecting his current possessions to any undivided assets) or the fact she still had not made a prima facie case, i.e., she could not identify a single undivided community asset remaining in existence after the 1983 settlement and division. Earl asserts another unique element is the integrated settlement agreement, which provided for the division of community property.
The trial court and the Court of Appeal both cited to Earl's recalcitrance indicating he was partly responsible for the delay. The Interim Agreement only provided for the division of some, but not all, of the community assets and specifically stated Barbara could pursue her claim of undivided community assets at any time. Earl complains that Barbara should bear some of the responsibility for her long delay; the court only awarded $850,000 of the request and left it up to the trial court to rule on the rest of the request ($576,400). Regarding Barbara's failure to make a prima facie case, it is reasonable to infer that Earl's lack of cooperation is at least somewhat responsible for that failure as indicated in the prior opinion.
A court should consider evidence of "the parties' current incomes, assets, and abilities, including investment and income-producing properties." (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1167; see also In re Marriage of Duncan (2001) 90 Cal.App.4th 617, 630 [relevant evidence includes "assets, debts and earning ability of both parties, ability to pay, duration of the marriage, and the age and health of the parties."].) Looking at the record before this court, which included extensive briefing and extensive oral argument, we take the court's comments to be the court's conclusion after evaluating the relevant factors. The record shows that Earl had assets of almost $6 million (with at least $2 million in cash) and approximately $14,000 per month in income from social security, rental income and investments. Earl had paid his attorneys $1.4 million. Barbara had an income of $737 from social security, expenses of $3,347 per month, a bank account with about $23,000 in it and a condominium with a fair market value of about $510,000.
At oral argument, the theme of Earl's argument was that Barbara was not entitled to any fees; the court repeatedly asked Earl's counsel to address whether the requested fees were reasonable, excessive or duplicative. Earl's counsel was unable to identify which fees were unreasonable, excessive or duplicative. Thus, it is apparent the court considered the reasonableness of the requested fees. The fact the court was not convinced by Earl's argument does not mean it did not consider his points. The court had denied Barbara's prior request for attorney's fees as she had not provided documentary support for the request.
At the hearing on Earl's objections to the fee order, the court stated it "unequivocally" thought the need for the attorney's fees had been established. The court noted it had awarded substantially less fees than requested and stated Barbara was "in dire need of financing this, especially given the relative conditions of wealth as between the parties." The court indicated it had considered the totality of the circumstances in determining the ability to pay. When the court asked Earl's counsel about Earl's ability to pay, counsel stated he was not prepared to give the court specifics.
A fair reading of the record is that the court awarded fees based on the relative circumstances of the parties, the complex nature of the case, i.e., the enormous amount of work to be done to trace the undivided community assets, and Earl's payment of $1.4 million to his own attorneys. (See In re Marriage of Ward (1992) 3 Cal.App.4th 618, 623 ["The concept of awarding `reasonably necessary' fees is designed to insure each party has equal access to legal representation in order to preserve all of his or her rights."].)
Accordingly, the court did not abuse its discretion as it cannot be said no reasonable judge would have made the order.
III. Public Policy
Earl contends the public policy in favor of expeditious and final resolution of marital dissolution actions at the outset of litigation would be undermined as such a resolution is no longer possible because of Barbara's long delay in pursuing her claims. Earl suggests this court should assume he is telling the truth and reasons that if Barbara is allowed to continue on his "tab," the resolution will be neither expeditious or final and allowing the ruling to stand would mean any ex-spouse could come forward at any point and allege the other wealthier spouse possesses undivided community assets and require the latter to foot the bill for a foray into the latter's financial life long after the marriage ended. Earl argues the court should not automatically level the paying field, but should require the party pursuing belated claims to bear significant responsibility for the cost of his or her peradventure.
Trial on Barbara's claims has not yet begun. In addition, as we conclude the court evaluated the factors and did not automatically level the playing field and awarded only a portion of Barbara's request, leaving it up to the trial judge to rule on the remainder of the request, public policy is not undermined by the award.
IV. Prevailing Party
Earl contends the court should have deferred making any award of attorney's fees until after trial pursuant to the prevailing party provision in the Interim Agreement because, if he prevails, he will have no chance of recovering his fees from Barbara given her low net worth. The Interim Agreement awarded Barbara some attorney's fees and provided Barbara could apply for additional fees. The trial court found that agreement was not a final division of community assets. Moreover, as noted by Barbara, the interpretation of the Interim Agreement, which has more than one provision addressing attorney's fees, is not before this court at this time. Finally, waiting until after trial to consider Barbara's request would deprive her of the ability to present the merits of her case.
V. Property Declaration (FL-160)
Earl contends that because Barbara's property declaration (FL-160) continued to list estimated 1983 values for the alleged undivided community assets, the court should have rejected her request as a current form is required by California Rules of Court, rules 5.128(a) and 5.118(b). The court overruled Earl's objections to Barbara's FL-160 form. Earl asserts that the information about current values was critical so the court could evaluate what assets might be available for reimbursement, reallocation or for attorney's fees. The current value of community assets was not relevant to the fee request. Barbara had filed an income and expense declaration with current figures.
Barbara's using 1983 values on her FL-160 did not require rejection of her fee request. "The Family Rules of Court still include the FL-160 Property Declaration among the financial declarations that must accompany moving papers when `relevant' to the issues to be determined. In practice, however, this property declaration form will rarely-if ever-be `relevant' to initial OSC's and motions for monetary relief. [¶] Moreover, with the inception of detailed `declaration of disclosure' requirements, the FL-160 Property Declaration seems to have become obsolete." (Citations omitted.) (Hogoboom & King, Cal Practice Guide: Family Law (The Rutter Group 2011) § 5:336; see also Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1364 ["[C]ourts ordinarily should avoid treating a curable violation of local procedural rules as a basis for crippling a litigant's ability to present his or her case."].) Moreover, knowledge of the current value of any community assets is in Earl's control, not hers.
The order is affirmed. Barbara to recover costs on appeal.
ZELON, J. and JACKSON, J., concurs.