FACTS: In 11/93, H and W1 signed MSA which divided their property and provided for spousal support (s/s) for W1. After H failed to pay s/s as ordered, W1 began enforcement proceedings in the course of which she discovered the H was involved in litigation regarding restaurants in which H might have invested undisclosed c/p. H testified in that litigation that despite his new wife’s (W2) signing the contract, the true agreement was that he owned 25% of restaurants. That dispute settled in 2007 with W2 receiving $7.25 million.
In 2008, W1’s motion to join W2 as a party in dissolution action granted. Complaint in joinder alleged causes of action for declaratory relief and actual and constructive fraudulent transfers under the Uniform Fraudulent Transfer Act.
In 2010, W1 sought to recover $223,091 in attorney fees from H and W2 for various aspects of litigation. Trial ct. ordered H and W2 to pay W1 $181,750 pendente lite. W2 appealed, and Court of Appeal affirmed.
HELD: W1 not required to show that she was likely to prevail or a prima facie case that W2 was connected to a dissolution proceeding issue in order to be entitled to a section 2030 pendente lite attorney fee award.
Under Family Code section 2030(d), the trial court, in its discretion, may award attorney fees in a dissolution proceeding against a third party—i.e., one joined but not a spouse.
To be entitled to fees, W1 was not required to show a likelihood of prevailing on the merits. Court disagreed that In re Marriage of Siller (1986) 187 Cal.App.3d 36, on which W2 relied, required her to prevail on motions to get an order that claimant pay fees.
“[S]o long as [W1] was not required to establish a likelihood of prevailing on the ultimate issues, she should be entitled to attorney fees for steps taken to assert and prosecute her claims, even if some of them did not result in her prevailing on the matters for which the trial court was awarding attorney fees. Otherwise, without such a pendente lite award of attorney fees, Jeanette might be unable to pursue her claims. Accordingly, because there is no requirement that a party to a dissolution proceeding demonstrate a likelihood that he or she will prevail in his or her claim against a third party to be entitled to attorney fees pendente lite, [W2’s] argument fails.” (In re Marriage of Bendetti, supra, __ Cal.App.4th at p. __.)
NOTES: This case not final as of closing date of this volume. Prior to citing this case, user should verify its official publication status. (See California Rules of Court (“CRC”), rule 8.1115.)
Garrett C. Dailey is a Certified Family Law Specialist focusing on appellate issues and consultations, a Fellow in American Academy of Matrimonial Lawyers and publisher/co-author of ATTORNEY’S BRIEFCASE® CALIFORNIA FAMILY LAW, California’s oldest provider of self-contained legal research software. BriefCase is available online and through the Attorney’s BriefCase iPad® app. For more information visit them at www.atybriefcase.com. Also check out their FREE legal education log at www.MyLegalEducationLog.com.