Marriage of Tearse CA1/4, A158582

After trial, the family court awarded the marital home (205 W. Floresta Way, Portola Valley) to James and ordered him to pay Anne an equalization payment and remove her from the mortgage within 60 days; if he failed, the house was to be listed/sold and Anne to vacate within 15 days after payment or expiration of the 60 days.
On the 60th day James filed an ex parte RFO saying he could not refinance without repairs, sought exclusive possession and a writ of possession so he could make repairs, and offered Anne a $20,000 advance; Anne opposed and sought $4,382.65 in attorney fees under Fam. Code §2030 to defend the RFO.
At the September 26, 2019 hearing the court denied James an extension, concluded the judgment required Anne to vacate, granted James exclusive possession and ordered a writ of possession; the court summarily denied Anne’s fee request “at this time” without making the §2030 findings Anne requested.
Anne appealed the possession and fee orders. During the appeal the parties stipulated (reflected in a Jan. 12, 2021 court order) that Anne would vacate by Jan. 16, 2021 and a new writ would be effective Jan. 17, 2021; Anne vacated the residence.
The Court of Appeal held the possession orders and original writ were moot because of the parties’ stipulation, but reversed the denial of attorney fees under §2030 and remanded because the trial court failed to make the statute’s required findings.

Issue	Plaintiff's Argument (Anne)	Defendant's Argument (James)	Held
1) Jurisdiction to enforce judgment by writ/order to vacate during appeal (stay)	Appeal stays enforcement of mandatory injunctions; trial court lacked power to order vacatur while judgment appealed	CCP §917.4 exception permits enforcement of orders directing sale/conveyance/delivery of possession of real property without a stay when appellant holds possession and no undertaking given	Court: §917.4 applies; trial court had jurisdiction to issue writ/order to enforce judgment
2) Mootness of appeal challenging writ of possession and order to vacate	Stipulation is not retroactive; she did not consent to a new writ; merits affect future rights; dismissal could imply affirmance of void acts	Parties’ stipulation and Anne’s vacatur mean appellate relief would have no practical effect	Court: Issues are moot; reversed/vacated possession orders as moot to avoid implied affirmance and returned jurisdiction to trial court
3) Denial of attorney fees under Fam. Code §2030	Trial court erred by denying fees and failing to make express statutory findings on need, disparity, and ability to pay	Prior denials (and appellate affirmances) make reversal unnecessary; James’s finances actually worsened after prior rulings	Court: Trial court abused discretion by not making §2030 findings; reversed and remanded for express findings (no determination whether fees should be awarded)

Smith v. Smith, 18 Cal.2d 462 (holding appeal generally stays enforcement of mandatory injunctions)
Paul v. Milk Depots, Inc., 62 Cal.2d 129 (court may vacate as moot to avoid implied affirmance of void orders)
Coalition for a Sustainable Future in Yucaipa v. City of Yucaipa, 198 Cal.App.4th 939 (mootness doctrine and effect on appellate disposition)
In re Marriage of Falcone & Fyke, 203 Cal.App.4th 964 (standards for review and factors for fee awards under Fam. Code §§2030–2032)
In re Marriage of Ciprari, 32 Cal.App.5th 83 (denial of §2030 relief when fees not reasonably necessary/overlitigation)
Daily Journal Corp. v. County of Los Angeles, 172 Cal.App.4th 1550 (appellate courts decide only live controversies)
Woodward Park Homeowners Assn. v. Garreks, Inc., 77 Cal.App.4th 880 (mootness: no practical relief means case is moot)
Panoche Energy Center, LLC v. Pacific Gas & Electric Co., 1 Cal.App.5th 68 (when appellate decision can be outcome-determinative for fee-shifting clauses)
Kim v. Euromotors W./The Auto Gallery, 149 Cal.App.4th 170 (failure to exercise discretion is an abuse of discretion)