21 Cal.App.5th 1040
Cal. Ct. App.2018Background
- Parents (N.S. "Mother" and D.M. "Father") stipulated to joint custody in Santa Clara County in 2012; children later lived in Illinois and then moved to San Diego in 2014.
- Father filed two petitions in Kane County, Illinois in June 2014: (1) to register/enforce the California custody order and (2) to modify custody claiming Illinois was now the home state; Mother opposed and retained Illinois counsel.
- After coordination between courts, the Illinois court denied Father's petitions in October 2014 and California (Santa Clara) retained exclusive jurisdiction under the UCCJEA; venue later transferred to San Diego where a 2016 custody ruling awarded Mother primary custody.
- In June 2016 Mother moved in San Diego to recover fees, travel, childcare, and other expenses she incurred litigating in Santa Clara and Illinois (including Illinois attorney fees), citing several Family Code provisions including § 3452 and § 7605.
- The trial court denied the motion: it ruled § 3452 did not authorize the expenses Mother sought and ruled Mother (self-represented in Santa Clara) could not recover attorney fees under § 7605; it also rejected awarding Illinois fees on venue grounds.
- The Court of Appeal held § 3452 (a UCCJEA enforcement expenses provision) does not apply to jurisdiction/modification proceedings under Chapter 2, but § 7605 (need-based attorney fee shifting in family cases) potentially permits recovery of reasonably necessary attorney fees and costs (including related out-of-state fees) and remanded for the trial court to apply § 7605 criteria.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Mother can recover expenses under Fam. Code § 3452 for opposing Illinois petitions | § 3452 requires award of expenses to prevailing party in UCCJEA proceedings; Mother prevailed in defeating Illinois petitions so she is entitled to expenses | Father's petitions were jurisdictional (Chapter 2) not enforcement (Chapter 3), so § 3452 does not apply | Held: § 3452 applies only to enforcement proceedings under Chapter 3; Mother cannot recover under § 3452 for defeating a modification/jurisdiction claim under Chapter 2 |
| Whether Mother may recover attorney fees and related costs under Fam. Code § 7605 for California consultation fees and Illinois attorney fees | § 7605 authorizes need-based fee awards in "related" subsequent proceedings; Illinois petitions were related to the California custody action so fees are recoverable if necessary and reasonably necessary | Trial court: Mother (pro se in Santa Clara) cannot recover attorney fees; Illinois fees improper here and should be sought in Illinois | Held: § 7605 potentially authorizes recovery of reasonably necessary attorney fees and costs (including related Illinois fees); remand for trial court to apply need-based criteria and make findings under § 7605 |
| Whether trial court's procedural handling (failure to consider § 7605) was correct | Mother argued trial court should have considered § 7605 despite procedural defects in forms submitted | Trial court relied on procedural deficiencies and venue to deny fees | Held: Trial court erred by not exercising discretion under § 7605; procedural defects noted but court should evaluate entitlement on remand using § 7605 standards |
| Whether Mother can recover non-attorney expenses (travel, childcare, relocation) under § 7605 | Mother sought travel, childcare, court-related expenses as part of costs | § 7605 authorizes attorney fees and costs; it does not authorize non-attorney items like travel or childcare here | Held: § 7605 authorizes only attorney fees and costs; travel, childcare, and relocation are not recoverable under § 7605 (and § 3452 inapplicable here) |
Key Cases Cited
- Mountain Air Enterprises, LLC v. Sundowner Towers, LLC, 3 Cal.5th 744 (discusses American Rule and statutory exceptions to fee-shifting)
- Ghirardo v. Antonioli, 8 Cal.4th 791 (statutory interpretation reviewed de novo)
- Wells v. One2One Learning Foundation, 39 Cal.4th 1164 (avoid statutory constructions that render parts superfluous)
- Alan S., Jr. v. Superior Court, 172 Cal.App.4th 238 (purpose of need-based fee statutes is parity of representation)
- Kevin Q. v. Lauren W., 195 Cal.App.4th 633 (standards for fee awards under § 7605 analogous to dissolution fee statutes)
- In re Marriage of Seamen & Menjou, 1 Cal.App.4th 1489 (what makes a proceeding "related" is generally a factual inquiry)
- Askew v. Askew, 22 Cal.App.4th 942 (separate civil action is "related" when it involves matters that should have been litigated in the family law case)
- In re Marriage of Green, 6 Cal.App.4th 584 (fees for defending a civil suit that intended to affect the family matter can be recoverable)