*1 Dist., A048140.First Div. Two.Dec. [No. 1991.] II PATTI of CHARLES H. SEAMAN and ANNE MENJOU. II, H.
CHARLES SEAMAN Appellant, MENJOU,
PATTI ANNE Respondent.
Counsel
Robert D. McGuiness for Appellant.
Eileen Preville for Respondent.
Opinion KLINE, P. Charles H. Seaman II appeals from an order of the J. court a dissolution awarding his former wife action, a separate juvenile court In re Marjorie (Super. S. Ct. Alameda 143621/143622; County, Nos. A046829). He contends the trial lacked jurisdiction to order such fees and the him award denied procedural due process. and Facts
Statement Case 23,1987, dissolution of his filed a for the petition On September appellant preceded Patti Sue events respondent, Menjou. marriage court action subject appeal juvenile were the of an earlier from a dissolution two couple’s dependencies that resulted establishment old, children, 1987, J., then related dream and H. three May years J. had her. Respondent, molested respondent appellant which led believe child, molestation reported possible who had herself been molested as (CPS) June. CPS Alameda Protective Service County Children’s reports additional July, respondent closed its case after which made the agency noting but the case was July September reopened, due statement to her concerns that had contaminated child’s respondent *4 obsession with molestation issues. Linda began
Pursuant to the Dr. assess parties’ agreement, Campbell in whether had June of 1987. was unable to determine J. family Campbell emotional involve- respondent’s been molested and was concerned that very in in the was the child She last saw causing family ment situation harm. on the October because no wanted her to work case. respondent longer Hofer, a In November Ricardo clinical appointed the court Dr. make regarding to assess the and recommendations psychologist, there had probability and visitation. Hofer concluded was a low J. been and a was overiden- actually sexually respondent molested probability J., with felt affect was tifying merging respondent’s hurting and children much as molestation. to Hofer’s evalua- Pursuant possible children, tion, the court ordered with the custody joint physical each rotating children two at a time with on a basis. spending nights parent In June CPS its because J. was reopened investigation continuing make statements her the emer- molestation to care regarding day provider, worker and child welfare A was filed on gency response worker. petition 6, 1988, 24, 1989, that J. August February amended on and H. alleging came within the provisions of Welfare Institutions Code had appellant frightened molested and the minors sexually respon- causing dent was them emotional because of her with damage preoccupation the molest and was care for After a jurisdictional unable to them. properly which continued hearing days, juvenile over the course of court court found serious that J. was or at substantial risk of emo- suffering suffering as a molested her and damage having tional result of appellant sexually molestation; threatened her various told was ways respondent she with the discussions of preoccupied sexual molestation and her repeated them and H. damage; behavior in the presence causing sexual minors’ masks had suffered extreme from anxiety appellant’s wearing frightening his declared the hearing May At on presence. dispositional court, removed from their dependent juvenile minors children of the them and committed them the Social Services parents’ custody County to Alameda home with visitation Agency supervision regular respondent’s appellant. 6, 1989,
On July in the respondent’s attorney proceeding, dependency filed Emley, F. a memorandum of law dissolution action Christopher have seeking appellant respondent’s fees and costs pay dependency action. court found respondent had incurred legal expenses exceeding $50,000 in the dissolution and dependency Finding parties actions. that both were to blame for harm to the children but that flowed from respondent’s and was outweighed appellant’s, considering relative $40,000 financial the court ordered positions, contribute toward appellant fees, $25,680 payment was for fees.1 filed Emley’s Appellant timely notice of on appeal December 1989. Meanwhile, had appellant to this court from the appealed judgment dependency action. we unpublished opinion, concluded that the trial *5 court erred certain admitting testimony without a foundation requiring pursuant People to the principles Kelly (1976) 24 17 Cal.3d P.2d [549 and, Frye (D.C. v. United 1923) 1240] States Cir. 293 1013 finding F. close,” case “extraordinarily reversed the judgment.
Discussion are question we called to upon address this is whether appeal a trial court a dissolution action order may one a spouse portion of pay the other’s attorney’s fees incurred in the course of a defending dependency proceeding under Welfare and Institutions Code section 300. Appellant contends the trial court erred make concluding it could such an order either under the of Civil authority Code section or accord 43702 to the ing principle a held wrongdoing may solely be spouse responsible debts community incurred as a result of or his her wrongdoing. $14,320 1The court’s award of fees of respondent’s the dissolution attorney in action, Preville, Eileen are appeal. not contested in this 2All statutory further be to references will the Civil specified. Code unless otherwise 1494 579 (1983) 147 (In Marriage Cal.App.3d [195 re Stitt *3.)*
Cal.Rptr. 172] I. follows: (a), as pertinent part
Section subdivision provides order may under this the court part, “During pendency any proceeding be may such amount a governmental entity, pay any party, except maintaining defending proceeding for the cost of or necessary reasonably fees; judgment, before entry and from time to time and attorneys’ and for attorneys’ award for costs and original or may augment modify or defense of for the reasonably necessary prosecution fees as be may thereto, after has proceeding including any appeal related proceeding added.) (Italics been concluded.” “under this section 4370 part,” specifies its reference to
By proceedings (FLA). (Brink v. Law Act that it under the Family applies 57].) The language (1984) Cal.Rptr. Brink 155 223 Cal.App.3d [202 however, above, “any of the statute to coverage italicized expands under the FLA. Since proceeding related to” a proceeding proceeding under the Juvenile Institutions Code section 300 falls under Welfare and FLA, 4370 is an award of fees under section Court Law rather than only dependency proceeding case appropriate present under the FLA.4 considered “related” to the dissolution action to his request statement of decision is fatal 3Respondent appellant’s contends failure (In (1988) 206 respondent Marriage relies re Ditto appeal. Unlike the cases 770]; Cal.App.3d Cal.Rptr. Marriage Jones Cal.App.3d 646-648 In re [253 761]; Cal.Rptr. Marriage of Hebbring In re [271 488]; Cal.Rptr. Green *6 294]), judgment of final here the explanation judgment, in which the record contained no the circumstances, sets the absence of a statement of decision forth reasons for the award. In these 1575, (See Fingert (1990) Cal.App.3d hamper Marriage does not our review. In re 221 of 389]; (1990) Cal.App.3d 634 Cal.Rptr. Marriage 1580 In re Powers 218 [267 [271 of 350].) Cal.Rptr. concurring may be awarded under opinion, 4In his Justice Peterson concludes that fees Family under the Law Act because he only 4370 for services incurred in Bar, purpose sponsored legislation believes this the the that was the of State 1951 is, however, legislative history became section no indication in the whatsoever 4370. There (1933) Legislature that the State view. Sales v. Stewart 134 shared the Bar’s restrictive 44], that the Cal.App. proposition 664 P.2d which Justice Peterson relies for the [26 strongly part legislative history, views of the State Bar be considered as has been (Note, Interpretation rarely Nonlegislative Statutory criticized and followed. Intent as an Aid to 676, 684; Note, (1952) (1949) Materials 4 Legislative Colum.L.Rev. 49 California (1989) 372.) Superior Our Tobacco Co. v. Court 208 opinion Stan.L.Rev. in American Sales, suggests. In American Cal.App.3d 480 is not consistent with as Justice Peterson Tobacco, legislative analyses. our of staff legislative purpose chiefly assessment relied on 1495 find The cases offered guidance question We little on this case law. Brink, supra, at the are not 155 helpful. Cal.App.3d Brink to former who moved to vacate a spouse held fees denied a p. properly action in because such community property equity award an independent FLA; an action was not one under the the court did not discuss section reference Guardianship 4-370’s to “related” proceedings. of Paduano 589], 350-352 found fees Cal.App.3d Cal.Rptr. appropriate [263 where a was with a consolidated dissolution guardianship proceeding child, of of the same without involving question again discussion Green, of related language regarding proceedings. 14, 28, supra, 213 footnote stated that whether other Cal.App.3d simply proceedings are “related” to a within the meaning dissolution of section is a question of fact for the trial court a view on without expressing issue.
The few cases we have discovered directly that address “related” proceeding do interpret it a manner provides guid- that us ance but make simply judgment calls as to whether the particular actions Thus, involved were “related” to the divorce. underlying Gottlieb v. 763], Gottlieb P.2d after a divorce and property agreement, settlement former wife filed the divorce action ofwrit stating execution her former husband owed certain sums money. The former husband filed an action for malicious abuse process alleging that his former wife had known he not in arrears sought when she because, writ. The court held fees inappropriate assuming allegations all the true, the complaint for malicious abuse were process the action was “based on the solely tortious alleged conduct of the former wife” and therefore was not “related to” and did not of’ the “[grow] out divorce action. (Id., at p. Crook v. Crook
892], a former wife was awarded fees on former husband’s from appeal a judgment of certain disposing had held joint tenants. property couple In response to the former husband’s that divorce had no argument power to dispose held property joint tenancy, court found appellate Pointing out special that ordinarily statement group interest “is an unreliable (id., purpose indication of the legislation 488), affecting group” interests part we relied in on only such a statement because it purpose mimical to the “concede[d] (ibid.) goals group” interest *7 and was therefore uncommonly reliable. There is in the present Moreover, analogous case no against statement Legislature interest. even if the could be assumed to contemplated have that the statute ordinarily apply would to costs and fees incurred in proceedings, domestic relations expectation by this would at be not all frustrated application the broader we feel warranted very language Finally, the of the statute. parade of horribles predicts Justice Peterson will result of interpretation language from our is, view, of the statute our in farfetched.
1496 and, action accord- the divorce the issue and determined properly joined (Id., 749- pp. to” “relating language. fees under ingly, appropriate 750.)5 (1977) “to as Collegiate Dictionary defined in Webster’s New
“Relate” is “to relation- causal connection between” or have logical show or establish or so that enu- precise or This definition is general connection: Refer.”6 ship is of section 4370 purview meration within types FLA and a given a connection between a impossible; logical proceeding of factors variety including type be found a might by considering factual and legal of the to the proceeding, parties proceeding, function The statutory litigation. generality matters at issue and motives for court’s discretion thus leaves a wide area exercise trial a FLA proceeding. whether an action is “related” to determining A fees in marital action is left motion a dissolution attorney’s the sound discretion of the trial court and will be overturned absent 762, (1984) (In Marriage abuse of re Sullivan 37 Cal.3d that discretion. 1020].) the discretion exercising given by 768 P.2d [691 4370, however, must be fundamental rule guided by “ ‘ of the Legislature a statute court “should ascertain intent construing ’ ” Assn. v. (California so as effectuate the of the law.” Teachers purpose Community San Dist. 698 P.2d Diego College Cal.3d [621 856], (1973) 10 Cal.3d quoting Moyer Comp.Appeals v. Workmen’s Bd. 1224].) P.2d whether a non-FLA Accordingly, question FLA is “related” to one under such that fees proceeding must on whether an award the non-FLA granted depend would serve the of section 4370. proceeding purpose an award under section 4370 is “to one of the purpose provide parties, necessary, with an amount adequate properly litigate Sullivan, 762, 768; (In Marriage supra, re controversy.” 37 Cal.3d Marriage 701].) Janssen Cal.Rptr. Cal.App.3d “ ‘The basis for fees is that each must have access awarding attorney’s party ” re legal rights.’ (In order to all of his or her representation preserve 789], Hatch 169 Cal.App.3d 1219 [215 Gottlieb, Crook, supra, supra, 5Gottlieb v. 715 and Crook v. 137.3, predecessor construed former section to section which authorized fees actions and proceedings “relating for “divorce” thereto.” “connection,” 6The terms are “relationship,” definitional “refer” each defined “Relationship” being reference to each other: is as “the state character of related or defined or Connection”; Relate”; “to have or interrelated: “refer” defined as relation connection: defined as connecting: being “connection” is “the act the state of connected: ... or logical causal relation sequence.”
1497 (1978) re Marriage In Barnert quoting Thus, 616].) must consider the incomes respective a trial court Cal.Rptr. income, concerning needs of all evidence parties, including the assets abilities, (In in to award Marriage its discretion fees. re exercising Sullivan, 768; supra, Marriage In re p. Cal.3d of Cal.App.3d of Wolfe Hatch, 337]; Marriage supra, In re at p.
In the with of section the most obvious keeping purpose function the fully “related” is allow a trial court to proceeding language ensure parties’ both to maintain or defend FLA action. For ability example, in in by authorizing fees cases related to FLA well actions as those FLA, under directly the section 4370 enables a trial court ensure that an appropriate degree financial lost parity parties between the party’s litigation of which could FLA part matters have been action in (See Green, suit. independent supra, 213 Cal.App.3d at fn. 8 [noting numerous actions dissolution or involving their attorneys be “related” for might 4370].) of section Such suits purposes might be “related” that they involve the same similar matter subject or or, sense, FLA even if unrelated a factual fall within the might Thus, purview of statute their because of effect on FLA action. statute enables a trial court to with prevent spouse greater financial resources from harassing coercing the less into advantaged spouse sub lawsuits; mission in the FLA case him or her by forcing to defend other such independent suits are “related” within the meaning section 4370 because they are intended to produce some result in a FLA case. time,
At the same not all actions are some related way by subject matter to a FLA action can be viewed as the reach properly within of section 4370. For example, during a dissolution pendency proceeding, lover, husband finds the wife with her becomes involved a physical altercation and is sued subsequently by the lover for assault. Although assault case arises out of the dissolution in a general way, the husband’s act sois independent dissolution that no of section 4370 would purpose be served by having wife contribute toward his legal (assuming resources). wife to be the with party greater financial case, In the the trial present court found that juvenile proceed- that, ings simply “were an extension action and had Family Law Court, matter not been litigated Juvenile it would have been this court.” This ignores view fundamental differences between dissolution actions in- the issue volving of minor children and dependency proceedings action, under Welfare and Institutions Code section 300. a dissolution *9 1498 deter- jurisdiction court’s invoke the interested and other
parents interests of with the best accordance mine and visitation rights custody 531, 4351.5, 4351, 4600; (1986) 42 Cal.3d Garay Burchard v. (§§ child. 486, The not ensured 237.) child is generally 62 535 P.2d A.L.R.4th [724 to protect must others in the but proceeding depend representation (In 183, (1988) 194 Cal.App.3d [244 her re Anne P. 199 his or interests. 490].) Cal.Rptr. contrast, acts to children protect a the state dependency proceeding, by ways
who have at risk harmed in enumerated being specific been or are (See Benjamin (1991) Welfare and 300. In re D. Institutions Code section 1464, 468].) 227 While dependency a Cal.App.3d Cal.Rptr. 1469-1470 [278 action, as also to a dissolution proceeding arise out of facts which lead may case, link the two: A present dependency there is no inherent between their dissolving filed have petition against thought be who no may parents do with marriage. filing The have parents may nothing themselves here, and, petition parent instigates filing even when one The fact that a be made petition, allegations may against parents. both protective agency is filed of a child dependency petition by representative determine cause for investigation and is filing preceded by “ and interferences petty ‘insulate from self-interest proceedings ” P., (In 199 supra, which can re Anne parental custody disputes.’ pervade 790, William Cal.App.3d Cal.App.3d at T. quoting 420].) Cal.Rptr. [218 The and entitled to proceeding child is a to a party dependency P., Code, 317; (Welf. supra, re counsel. & Inst. In Anne representation by § 194; T., 798.) supra, 172 Cal.App.3d In re William proceeding may parents’ custody parental result loss of ultimately careful rights statutes set out governing accordingly protections (Walker Superior notice and a due including hearing for process parents Court 852]), mandatory 47 Cal.3d P.2d appointment counsel children out of home indigent parents placed whose may (§317, (b)) care for any subd. counsel discretionary appointment Code, (a)), parent (Welf. unable to afford & subd. § counsel Inst. Code, (Welf. 366) reviews of the periodic children’s status & Inst. § Code, (Welf. mandatory services aimed reunification of the & Inst. 4609; 361.5) see (§ which are not required superior proceedings. court § 466].) re In Clarence I. 281-283 court take over other Finally, precedence juvenile proceed- has ings affecting custody adjudged children so that once a minor been dependent juvenile child of the court no other entertain superior longer the child’s until the child is no proceedings regarding Code, (Welf. & Inst. dependent court. Juvenile juvenile *10 supersede preexisting court orders domestic relations dependency orders domestic relations courts not enforce orders that conflict may (In P., with juvenile supra, court orders. re Anne 199 Cal.App.3d 193-197; T., 790, 797-800; In re supra, William 172 Cal.App.3d Hogoboom Guide; 7:21, (The & Cal. King, 1991) Practice Law Rutter Family Group ^ 7-43-7-44.)7 pp. above,
Section as explained was meant to allow both spouses FLA, properly to actions under the in this litigate case an action for dissolution and custody. child Since the dependency statutes establish a self-contained scheme under the prevent state acts to particular types children, of harm to not tied to and over other means taking precedence of determining in custody, differing from law family custody disputes focus, remedies, power court available to one to require spouse for fees incurred pay the other in by defending against petition dependency would simply not serve section 4370’s of enabling to purpose spouses properly litigate matters arising from the of their dissolution This marriage. is true since especially the Welfare and Institutions Code its contains own to provisions ensure parents’ representation by giving courts discretion to counsel appoint for parents (Welf. who are unable to & afford counsel. Inst. Code, 317.) the § trial Accordingly, court erred determining that section 4370 authorized an award fees for in the respondent’s attorney depen dency proceeding thus abused its discretion requiring appellant contribute toward those fees.
We do not mean to suggest that other dependency or ordi- proceedings narily unrelated FLA proceedings not become may “related” virtue of the motives of the party the initiating For proceeding question. example, where a parent dissatisfied with ruling the of a domestic relations court manages to prevail the relevant authorities file a dependency petition in order to harass the parent other toor otherwise avoid the valid order 7The court 720], Brendan P. 184 Cal.App.3d expressed 910 [230 the view that it would be improper juvenile for a jurisdiction court to assume an over issue which has previously litigated been family in a questioned court action. It has been whether exception to general this is rule consistent with Welfare and Code Institutions section operative which became jurisdiction after (Hogoboom taken in those cases & King, 7:21-7:21.3, 7-43-7-44), supra, pp. although exception may § theory survive on a that juvenile court are paramount only jurisdiction properly is assumed and a juvenile court not properly jurisdiction already exercise if the has precise issue been litigated (Id., D., 7:21.3.) in a FLA Benjamin action. re supra, In P, disagreed holding with Brendan jurisdiction dependent that to make the juvenile family on nature of litigation law potential having private litigation would create frustrate purposes of section 300. We need not determine issue the parties this present questioned case have not the propriety juvenile jurisdiction. court’s P., supra, re (see Brendan relations court
domestic orders for mother after prompted by immediately court action [juvenile court]), might the dependency visitation entered father’s This, within 4370.8 meaning be considered “related” properly however, record that not There no suggestion such a case. is on the contrary, appellant instigated dependency appellant proceeding; its her reopen investigation caused CPS to maintains respondent sue her incessant threats to CPS.” with prodding coupled “constant [J.] we are exceed respondent’s, financial resources far appellant’s Since or coerce less with a secure harass financially spouse attempting faced If instigated dependency proceeding well-off one. respondent *11 motive, decide, not render we need her conduct could a not improper point section 4370. To meaning the “related” within the of dependency proceeding without the such conduct aby spouse find a “related” on basis of proceeding that enabling resources defeat the of the statute by financial would purpose be for fees. to harass or coerce the who would liable spouse spouse II. The trial reliance court’s the of principles of
Stitt, supra, attorney’s 579 as basis for the award of a Cal.App.3d here, 8Although they bearing have on fees at issue the question no direct the involving jurisdiction juvenile cases between and domestic relations courts conflicts seem given types proceedings how the facts case can two more or illustrate make the P., in dicta that the supra, Cal.App.3d less distinct. In re Brendan which stated family juvenile precise adjudicated cannot in a court relitigate previously court the issue action, filed, upon prompting, the dependency petition noted that the been the mother’s had did family ruling the and that court action a factual matter day juvenile after court’s the as protect “pervasive petty the children interferences from the ‘self-interest [characteristic ” (Id., 919.) at parental disputes.’ of] contrast, T., 797-800, By supra, in In re the father contacted William hearing protective agency awaiting child in his of residence while set county the services reported child custody dispute pending county, two months later in a in a different after his and filed a during investigated certain events had occurred with her mother. CPS visitation family law dependency petition days proceeding, later. After the court the court juvenile held conflicting majority opinion entered orders with those of the court. The the juvenile juvenile acquired jurisdiction paramount superior court’s over courts even if later that of other time, state, the focussing unique juvenile on of a court action in which the characteristics parens patriae, protect as acts a child. D., petition Similarly, Benjamin supra, dependency in In re was investigation by family law by report filed after CPS of a mother’s of abuse father. A court previously presented modify had been on a visitation but with evidence of abuse motion judgment had refused to of dissolution. The predating consider evidence abuse appellate proceeding prevent court held the law could not consideration family court, juvenile have juvenile stressing evidence law and that statute to take purposes juvenile required by different and that court jurisdiction (Id., pp. whenever comes within at provisions a minor of section 300. 1469- Stitt, embezzling was In a wife who had been convicted of improper. also marriage fees incurred her during from her employer argued from the her debt and regarded paid defense should be as a community community community a whole than from her share of the property rather rules recognized community court that under property. ordinary property but, could liable for debt9 under community equitable principles, found it marital at the time dissolution appropriate settling rights full the wife. for the embezzlement to marriage assign responsibility (Id., 587-588.) The had evidence court conclusive pp. “[T]he stated: recently activity committed which culminated con- criminal financial at the time sequences marriage to an end. No coming principle required spouse party. innocent to share loss created the other had Husband not waived his receive right community his share free property from loss to wife’s Therefore attributable conduct. separate it was for the court to orders carried law’s proper make out the intention that only crime or tort loss.” responsible participants bear the (Ibid.)10 Stitt, the wife *12 to have her husband in the sought litigation share costs of actions;
which arose from her independent of the holding essence is that an innocent spouse may relieved of his share or her of a community obligation out arising of the act of the In solely spouse. other the present case, is not respondent seeking to have her attorney’s fees treated as a community obligation but avoid all cost to herself and have bear appellant the full burden of the fees This is not a directly. situation to which simply Stitt, Stitt unlike applies. Additionally, the husband in not respondent was innocent wholly The spouse: dependency petition part was sustained in on the basis of allegations against her.11 (and present 5120.110), 9Under former section community is liable for contracts (Stitt, by party made either supra, during marriage. 587.) Under section states person which that a married generally damages liable caused spouse, tortfeasor because the husband participate did not in the embezzlement and there was no her showing actions the community, benefitted the attorney’s claim had to be satisfied first separate from the wife’s and property then from the community property. spouse’s When a liability is based spouse an act or omission occurred performing while the the benefit activity community, liability of the must community be satisfied first from spouse’s second
property separate property. (§ from the in re Hirsch 10The court 211 Cal.App.3d 104 [259 39] criticized Stitt negligent to the held benefitting extent it conduct the community justify could characterizing a debt with Stitt’s separate obligation although as a agreed it on the conclusion case. facts of that above, 11In view of our conclusions we not discuss appellant’s need additional contention that the trial court’s order procedural denied him due process. it awards The is reversed insofar as judgment respondent proceeding. for the dependency J.,
Smith, concurred. I write PETERSON, reached majority. I concur result J. Legisla in dictum that the suggestion to disavow the separately majority’s ture, in statutes incorpo Civil Code1 section 4370 and enacting predecessor therein, law actions to judges family rated authorized commissioners award fees and costs incurred other actions which independent or annulment cases. deal with issues “related” to issues dissolution arising I The “proceeding would reach the of the because: holding majority intended to mean proceedings related thereto” of section 4370 was language itself; lite out of the law action postjudgment pendente growing a family the sole bases for of one determining liability party and fees therein the other are the pay respective case to costs needs and financial condition of each contemporaneous party. Legislative A. Relevant History finds that the mere majority correctly analysis “proceeding (and
related thereto” of section the word “relat- particularly ed”) results conclusions of ascertaining meaning such generality that method is phrase by impossible.
However, with the on the my colleagues, majority commenting of courts *13 4370, language of section have failed to and properly analyze purpose legislative of this statute its history interpreting predecessors intent, and function of the related thereto” purpose, “proceeding language.
Further, conclusion, that “The majority’s generality statutory thus leaves a wide area for exercise of the trial court’s discretion whether determining an action is ‘related’ to a Law [independent] [Family Code, ante, (Civ. 4000-5317) (FLA)] Act proceeding” (maj. opn., p. §§ 1496), assumes a intent which never existed legislative on passage statute question, while cardinal rules of construction ignoring statutory which commands we This now fastens precedent majority language follow. action, on the four decades after the interpretation Legislature’s almost Code, language at issue was introduced into the Civil which the Legislature has never evinced it subsequently so intended. indicated, subsequent
1Unless otherwise all Code. statutory references are to the Civil 1. Intent Divining Legislative
We have heretofore “In Legislature said: what the intended determining used, matters, we are bound to consider not only words but also other context, view, remedied, ‘such as object the evils to the history the times and of legislation upon subject, the same public policy (American contemporaneous construction. . . .’ Tobacco Co. v. [Citation.]” Superior 480,486.) Court 208 Cal.App.3d We are further obligated consider, intent, when determining legislative conditions prompted 890, the legislative (People enactment. Fair 632].) Where the State Bar of California sponsors urges passage of legisla- law, here, discussion, tion enacted into as it did the Bar’s report, comments on its legislative are valuable proposal aids interpretive generat- ing reasonable that the assumption Legislature adopted statute or amendment it enacts consistent with the expressed (Sales State Bar purpose. 661, v. Stewart 44].) Cal.App. P.2d This principle where, here, particularly applicable 1953, (Stats. as Bill Assembly No. 2438 620, 1, ch. p. 2438),2 § hereafter A.B. which the by language we must law, consider became as introduced under the bar’s sponsorship, passed both by houses and signed Governor Warren without any amendment (A. whatsoever. B. (1953 Assem. Final Sess.) Hist. Reg.
2. The Prior Law A brief examination of the law as it existed to 1953 is prior necessary assist identifying “the evils to be remedied” A.B. 2438.
As amended former section 137 inter provided, alia: “During pendency discretion, such action the court inmay, [divorce] its require the husband or wife to pay ... ... any money necessary for the prosecution (Stats. the action . . . .” ch. 2686-2687.) pp. *14 1950,
From the latter part 19th to a line of century cases held that fees attorney application, made pursuant to section 137 the subject after legal action, services were rendered a divorce should be as rejected (See, 722, untimely. e.g., Kohn v. Kohn 95 Cal.App.2d 723-724 [214 (Division P.2d Two) court 80] [This referred to “the settled rule that [under legislation 137.3, 2This in 1953 amended then-section which was first added to the Civil 1951, 1700, (Stats. 4, 2438, alia, Code in 3911.) 1951. ch. p. A.B. inter added the § “proceeding 137.3, related thereto” language to incorporated section now in section 4370. 1504 the motion fees not be allowed where may law it then counsel
the as stood] accord, performed.”]; the services have been therefor is not made until after 747, (1948) 86 748 P.2d [195 911] [“The McClure v. Donovan award to the to make an empowered then-existing law] [under and does not necessity finding necessity wife except [citation] [Citations.]”]; Stamp- cf. exist when the have been rendered. already services 126, [Attorney P. fees are Stampfli (1921) v. Cal.App. 829] fli future.]; wife the of counsel provide to with services granted solely allowance Lacey Lacey (1895) 108 P. 1056] [of Cal. [“The circumstances, services, and, was was under the attorney for past fees] to prosecute to enable wife .... clearly not .... ‘necessary action’; erroneous.”].) and ... it is cases, had decades and litigants partic-
These cases for divorce placed If a client/spouse their an obvious and dilemma. ularly lawyers, disturbing the other spouse, with no funds needed immediate services to forestall legal a temporary from or to obtain community for example, disposing property children, client’s order to to the client or the restraining injury preclude those services neither nor the client could receive for lawyer payment husband) unless an order for spouse payment from the adverse (usually obtained, was entered costs or a stipulation services and was future first If, in the superior court’s consideration such and costs trial. client, perfor- interests of the conditions dictated emergency professional against mance of such services advance of either an order securing same, the rule of adverse to for the or the stipulation, spouse pay appropriate Kohn “necessity” past and McClure No existed for applied. payment services, other performed attorney ability spouse regardless The this rule were obvious to all.3 pay. inequity unfairness of archaic Legislative Proposals
3. Bar State rule; Legislative change was the this rectifying obvious method new State first task in of a Bar undertook this addition proposing 137.5, section to read as here the court pertinent: “Upon application, 4400-4401) (present 4425- 3Attorney fees in of void and voidable (present annulment §§ §§ which, 4429) section marriages, governed by now were dealt with former section pertinent, grant attorneys provided by “The as power read: court shall have fees ... wrongdoing generating Section party 137” in annulment actions to the innocent of fraud or grounds (Stats. relating for annulment. Present section ch. payment “in accordance with fees and costs in annulment actions allows them Section 4370 ...” decided, Kohn, supra, Since cases were former in force at the time like cases, applied principle then to both extended annulment divorce annulment the same actions, i.e., completion of the granted requested no award attorney fees would after legal compensation sought. services for which *15 award, its discretion at time thereafter if any original any, increase the for in costs such amount as and reasonable attorney’s may necessary in for the or defense of the action . . . and prosecution determining fees, may amount of such increased costs and the Court consider costs expended legal performed services . . . theretofore theretofore 187, 6, (Com. Reps., Administration of Justice 26 State Bar J. § 193, added.) italics p. The bar characterized this as legislation proposed providing “that award for fees or costs include fees for attorneys’ may to, [to], services rendered prior or costs incurred well as order subsequent as 188, (Id., (C), added.) of court therefor.” italics p. § however, Legislature, the 1951 rewrote simply session section statute, transferring its provisions for costs and fees to a new attorney 137.3, the predecessor section 4370. The bar’s that new section proposal, provide 137.3 for the award of fees for services rendered and costs expended therefor, domestic relations cases prior to application not explicitly set forth the 1951 enactment of section 137.3. The statute finally adopted read: “During action pendency any for divorce or for separate , maintenance . . . the court order the wife may husband or ... to pay such amount as bemay for the reasonably necessary maintaining cost of 1700, 4, defending action and (Stats. for attorney’s fees.” ch. § 3911.)4 p.
The State Bar returned to the Legislature 1953 on this subject as part its affirmative legislation for program amendments year, sponsoring section 137.3 which it characterized past as its “final text of a bill on services matters,” domestic relations (Com. which became A.B. 2438. Reps., Administration of Justice (B), State Bar J. italics § added.) alia,
A.B. inter added this language (now 4370): to section 137.3 “During pendency any action for annulment . . . and of any maintenance, children, for divorce or for separate or for the ... support motion, upon an order to show cause or and if such relief is requested , . complaint . . court may order . . [payment . neces- reasonably as] ... for sary . . . and for attorney’s . . . and before entry [costs] fees[] award, . . . judgment may augment or modify original any, costs and attorney’s fees as be reasonably necessary prosecution 4The version generated of section 137.3 authority focusing “[d]uring on its pendency action” language. example, For “pending” a divorce action was found to be where the trial court was to payments, determine whether following ordered to be made agreement divorce, entry judgment subject alimony were modification; hence, (Dexter court could award v. Dexter wife fees. 873].) Cal.2d P.2d *16 to any proceeding relating respect
or the action or thereto. defense of court award entry may services rendered after the judgment the .... or as to maintain reasonably necessary such costs and fees be 620, 1, (Stats. defend therein . . .” ch. subsequent proceeding § . added.) italics p. “an
The bar A.B. 2438 would authorize membership announced to its that costs, including award for services domestic relations and past matters] [in complaint.” services rendered and incurred to the the filing costs prior (B), (Com. (1953) 28 Bar J. Administration of Justice State Reps., bill, (1) The bar said: of that way explanation further By modified; be costs had to augmented award could be or fees and order to show cause as a condition to requested appropriate pleading costs; (3) prior or motion such fees for costs and services for and allowances time; for and costs judgment to must finalized allowances (i.e., “in an or services to connection with subsequent judgment appeal, on cause or later enforcement would be made order show proceedings”) motion; (5) for remained measured the basis allowance of fees and costs leave reasonable the amendments continued to awards necessity; fees and the court compelling costs to discretion trial court—not so, (Ibid.) do so act. empowering but it to Bar,
The both houses passed State A.B. which having sponsored amendment, sponsorship without confirmed the of its single purpose counsel, communication, dated Governor Warren through secretary its 28, 1953, 2438], as both houses April passed follows: has “[A.B. consideration, and will was introduced Legislature you be before for Bar of of its affirmative request of State California a part of the Civil legislative The bill would amend Section 137.3 program, HD (enacted 137). At Code in Section covering formerly matters HD are present, orders costs in domestic relations cases attorneys’ for The covering primary pur- made on services. applications in advance future without pose appropriate of this bill is to to make orders empower court made. being application to a as to time when the must be restricted rule fixed bill, must be application Under the relief then an pleading requests made or could base its award upon order to show cause motion. subsequent services rendered incurred as well as upon or prior or The Court like application. application augment modify could award, if provisions are made allowances services original any. Similar for rendered such would judgment require allowances after The amendments application on order to show cause or motion. ...HD HD advance, will necessity eliminate the necessity speculation be fixed at the following practice that the amounts present stipulating *17 and, time are necessary steps of trial. Sometimes not taken are or overlooked under the the court must then awards on what present provisions, deny amount to It is purely grounds. technical believed the new will procedure tend to decrease the volume of orders to show cause is now substan- courts, and which tial considerable time of the require[s] and counsel. The bill makes the same to situations annulment procedure applicable HO cases where allowances are now authorized Section 87 of the same by code.” (Italics added.)
4. The Purpose Legislation In summary, the State Bar sponsored legislation, passed by legisla- both Warren, tive houses and signed by Governor was never or presented repre- sented as concerning services rendered and costs expended on matters which did not out of grow the domestic relations case itself. It corrected the “evils” and hardship arbitrarily tying payment legitimate attorney fees therefor, costs to the time of application thereby precluding the inability domestic indigent case to litigants obtain payment necessary past profes- therefor, sional services of counsel to prior an order without a stipulation Further, waiving prior order. A.B. eliminating antiquated procedure of requiring either a for the voluntary stipulation court’s future consideration of payment for past legal services rendered and ex- costs pended, therefor, or a prior order for payment proposed decrease the volume of orders to show cause necessitated when adverse counsel refused to so stipulate. The proliferation of orders to multiple show cause for payment attorney fees and costs generated the law by followed prior courts, A.B. 2438 wasted obviously considerable time of the parties, and counsel during pendency domestic relations litigation.
An additional obvious purpose A.B. 2438 was to remove fixed time restrictions controlling fees and attorney costs allowances in all “domestic relations cases” annulments, by creating statute of uniform application divorce, maintenance; maintenance, separate and to the support, or education of children.
Further, at the time A.B. 2438 was considered and passed by the Legisla- ture, the legal principle had been well established since attorney 1872 that fees were to be paid specifically provided statute or by by agreement of Proc., (Code parties. Civ. 1021 as amended by § Stats. ch. where “Except fees are allowed specifically statute, or by contract of the parties, are not recoverable they a successful as costs litigant (Murphy otherwise.” Murphy Cal.App. 653].) P. its membership 2438 to analyses A.B. presentation The State Bar’s that utterly devoid of intention Warren were expressed and to Governor thereto” courts permit related would bill’s “any proceeding actions, fees in independent cases to award domestic relations arising to issues might issues which relate dealing with coincidentally has no case My prior cases. research revealed dissolution or annulment costs, awarding even considered question A.B. actions, in cases. relations domestic independent which were generated *18 Warren, bar, discussed the word only in analysis The its to Governor in the domestic in after judgment” the context of “proceeding” “proceedings itself, i.e., as out of that action. growing relations action 2438, thus, decades practice many California A.B. altered the simply in fees or future attorney advance required application stipulation same, cases, stipulation obviating preclude domestic relations or a It performed. services theretofore fee rejection applications attorney says now it said. purported say majority never what Majority’s Analysis B. Flaws in the thus, sense, simple require
Practical considerations and common “The of the claim that generality threadbare rejection majority’s a area for exercise thus leaves wide statutory language [related thereto] action is trial discretion in whether an [independent] court’s determining ante, to FLA The erroneous ‘related’ proceeding.” (Maj. opn., p. is A.B. implication analysis conveys this courts, law with or without into section 4370 allows incorporated family consolidation, (as court in this case an the trial joinder or order of proper allowed) in a family it to a concluded was to award wrongly spouse action separate fees in a and totally independent incurred or relationship property which somehow domestic “relate[s]” legion. children Such actions are parties.5 potentially damages parties recovery All claims and lawsuits third by involving community prop- one or their and spouses separate from both “relate[]” with a concom- judgment the source of an adverse erty, potentially satisfying All loss be based. itant of financial assets on which orders support children involving and minor juvenile parties’ criminal civil actions their recov- or the of their or estate or guardianship person personal injury children, always those matters eries to the support “relate[]” 757], 5See In re Siller 45-47 [231 discussed infra. All suits at issue law action. filed family independently law action either the other by spouse against or filed them or third parties rem, interest of concerning any property either to their spouse, “relate[]” condition, domestic financial relationship, interests. property The majority further rationalizes its as follows: “For holding example, authorizing in cases FLA related to actions as well as directly those FLA, under the section 4370 enables a trial court to ensure that an appro- priate degree of financial parity between the is not lost by party’s litigation of matters which could have been of the FLA action in part ante, independent suit.” (Maj. added.) italics opn., would, course, This reasoning allow judges commissioners family law cases to award fees incurred by spouse separate litigation which the very court hearing that separate litigation powerless to award those fees—because no statute or *19 it that agreement gives For authority. example, a husband fees in incurring and separately codefend- successfully ing with his wife estranged an uninsured case both against parties for tortious damage where no fees are allowable himto could use potentially law family wife, action to collect those fees from the on the majority rationale that he thereby preserved the from eroded community being by a is, potential thus, judgment creditor and such action “related” to the family law action in which the protected community property to be divided.6
The time-consuming conditions and enormous workloads facing family
law
and
judges
commissioners
accelerated
today,
intricate
by increasingly
requirements of
FLA
and a concomitant acceleration of the number of
those family law litigants who
appear
propria persona, are
known.
widely
The ramifications of the potential additional workload the
dictum
majority
would thrust
commissioners,
on already overburdened
law
family
judges and
means
by
4370,
rationalization
it utilizes
section
interpreting
are
more than mind
and are
boggling
extremely
law courts
forbidding. Family
should not be required, on the
majority’s analysis
related
“proceeding
4370,
thereto”
of
language
such
adjudicate
extraneous consider
ations; they should simply continue to exercise their discretion as to awards
fees
attorney
(Bluhm
and costs
controlled
legal principle
established
(1954)
Bluhm
129 550
421])
P.2d
considering only
[277
(In
respective contemporary needs and income and assets of the parties
re Marriage
(1984)
Sullivan
P.2d The The of A.B. majority. purpose suggested A.B. 2438 the purposes it, “it is a one the ascribes to different from the quite majority 2438 was star guiding of a statute is a purpose legal principle well-established (Sierra Hayward v. City it . . .” Club . defining language employs 180], fn. 623 P.2d Cal.Rptr. 28 Cal.3d 860 [171 Law C. Case Relevant have, his- statutory analysis
The better reasoned cases albeit without as a basis tory, of section 4370 rejected to utilize any proposal to make commissioners conferring family judges power law where the for services cases awards of actions construing doing from so. cases hearing them prohibited support analysis 137.3 section 4370 and former sections do and reasoning of the majority. instance, Newport re Marriage For it 4370 when defines the of section Cal.Rptr. correctly parameters 647] re
cites In
Coleman
26 Cal.App.3d
“The
used in section 137
its
phrase ‘during
pendency,’
629]:
4370,[7]
successors,
to include
expanded
sections 137.3 and
has since been
action and
diverse
out
the divorce
‘many
proceedings growing
[of the]
”
after
of the final decree.’
arising
entry
*20
in
fees
those
attorney
proceedings
This
that
are to
allowed
principle,
decision in
which
out of’ the divorce
stems from the
“grow[]
proceeding,
321],
Superior
Lerner found
Lerner v.
Court
Where the action fees under section grow does not out of Thus, in 137.3 are v. Hendrix properly denied. Hendrix 58], P.2d the court a broader rejected interpretation 379 [279 Hendrix, fees had been divorced attorney provision. State; Washington and there was no California dissolution When proceeding. a later dispute California courts the wife’s pursued concerning children, of some of alleged kidnapping the trial court denied a motion such an is attorney action: “It not one of the actions specified sections 137.3 and 137.5 of the Civil Code fees are attorney’s allowed. Since there is no for the allowance of statutory provision action, fees in the present the mode of is left to the compensation agreement, express implied, (Id. of the parties.” at p. later,
A few the Second years District also a broad rejected interpreta- tion of the “relating thereto” Gottlieb v. Gottlieb There, Cal.App.2d 715 P.2d the former wife had caused the 763]. sheriff to execute against and of her former husband’s acquire possession car, he was alleging under the delinquent making support payments dissolution decree. The husband an action for abuse brought process, he had been claiming current on and his former wife acted payments The trial denied maliciously. the former wife’s for an application award fees under thereto” “relating language of then-section 137.3. The Second District affirmed: “The action for malicious abuse of process in tort—the alleged tort of the former wife. . . . the action for Manifestly, *21 malicious abuse of is not related process grow to nor does it out the of divorce action. It is based on the solely alleged tortious conduct of the former 719, (Id. wife.” at added.) italics p. 218, (1984) 57], Brink v. Brink 155 222 this Cal.App.3d Cal.Rptr. [202 (Div.
district Five) (of FLA pointed out that section 4351 of the which 4370 is a part) jurisdiction § confers under divide section 4800 to commu- “ is, in nity (that under in property ‘proceedings this under part’ proceedings
1512 the action to set aside [FLA]),” wife’s independent equitable the and that not a FLA of dissolution was judgment proceeding.8 the fees wife The Brink court affirmed attorney the trial denial of court’s lawsuit, under section 4370: claiming “[T]he her therefor sought authority fees, action was lacked since the authority attorneys’ trial court award any agreement and no statute or contractual under the other pursued [FLA] 223.)9 (155 at attorneys’ Cal.App.3d p. fees.” recovery provided (Stats. FLA. 4370 of the enactment of the 8Section 137.3 became section means 1970 1, 1970, 311, substantive 705.) any was not intended effect p. ch. This recodification § in this pre-1970 “proceeding^] relating which thereto” change to the line of cases defined of, in, (Id., existing law.” change declaratory a but is context: “This act does not constitute 315], same Cal.Rptr. Cal.App.3d 1122-1123 [255 9In Green Uccelli 207 separate a for malicious attorney that the could not be sued in action court held wife’s contempt order to re attorney sought after and then withdrew an show cause prosecution, action attorney fees dissolution remedy in the dissolution action. Husband’s was to seek in the 4370 under section trial court could award under sections 4370.5. The case, Cal.App.3d 8 Marriage 4370.5. A later Green footnote Uccelli, 315], and other suggested dicta that the in issue in Green v. Cal.Rptr. lawsuit lawsuits, they in some might of fees section 4370 since were “related justify an award under Thus, that if an simply was made in dicta proceeding.” suggestion fashion to dissolution under litigated proceeding, in the an award of fees issue was or should have been dissolution might proper. section 4370 351-352 Guardianship To the same Paduano effect is 589], guardianship an award of fees under section where which affirmed in the proceeding, since the issue proceeding was consolidated with FLA dissolution minors. physical custody same: Who receive of the proceedings consolidated should consolidated, same and the proceedings properly applied; Since the had been section contrast, Here, litigated issues would have event dissolution action. been in the further, dependency any pending proceeding; action consolidated dissolution was never with both litigated dependency brought by county action concerned whether the issues in the abuse, had question physical custody were unfit not the parents simple due to child therefore, We, do not been need not and already prior proceedings. decided in dissolution Marriage decide whether the was well considered. dicta in Green and Paduano Paduano, guardian- out of the allowing family arising fees in the law case consolidated (an FLA), brought on the ship proceeding concerning child action not under the cases, rationale the issues seems difficult to rationalize were interlinked consolidated 4370, Brink, restricting attorney light statutory history supra, section and the cases considering fees to out of’ the action. Like other cases “growing family law concerning the analyzed history and intent legislative section Paduano has not “proceeding predecessor related and its statutes. Paduano thereto” that section separate appears adopt linkage custody, existing in a coincidental issues of child action, guardianship allowing rationale for fees under family and a as a whether against petitioner analyzing the unsuccessful rather than guardianship, with law action guardianship joined fees were allowable action was because 45-47, Siller, of’ the “[grew] out supra, pages in In re *22 petition grow law action. It did not out family guardianship seems obvious aunt’s case, She, obtain family county sought by independent law action. in our action to like the custody parents, parties family parent of the child law Neither from both its to the action. Independent Fees Section 4370 Does Not Allow an Award in D. Actions FLA, it of the same aside from
Finally, should be noted that section 4370 language “[d]uring other considerations of includes the legislative history, under this . . .” The pendency part . any proceeding [the FLA] analogous reasonable and is that the related thereto” implication “proceeding FLA, of section related under the not 4370 means those of some independent action.
The has shown itself to amend section 4370 Legislature certainly willing (See in light Marriage Reyes (1979) experience. 876, 879 fees under Cal.Rptr. award of version prior [159 84] [An may section 4370 be made marital re only against partners.]; In Siller, supra, 187 44-47 the 1981 amendment to pp. [Under an award of fees be made certain third The may against parties. law court family matter over those third acquired subject jurisdiction parties (a partnership interests) which husband held wife’s corporation in joinder held complaint alleging they and claimed which she property However, had a community interest.10].) property section 4370 is to be amended to accomplish exceptional result envisioned “it by majority, is the task of the and not the Legislature courts to create that exception.” Friedman, (Droeger v. Sloan & Ross Cal.3d Cal.Rptr. 584, 812 P.2d [analyzing legislative history analogous attorney 931] fees provisions FLA].) otherwise,
The Legislature has provided, by amendment or award family law cases of fees and costs which a thereto incurs party could have petitioner recovered fees from the guardianship action. It is difficult to see case, how fees could nonetheless be awarded family under section 4370 in the with which trial, guardianship simply consolidated for coincidentally because each case dealt with the Neither Paduano nor the case at bench custody issue of of a child. presents situation where the litigated parties exact issue to be family between the in a law action is the Crook subject independent (See of an parties. consolidated action between those same 745, 747, cases, Crook (1960) 184 Cal.App.2d 892].) In such properly are awarded in the consolidated independent simply action because the mirrors, parties, as between the same the same they try issue and claim for relief will in their Paduano, however, family theory: law action. its holding rationalizes on an alternative and, family continuing jurisdiction law court has exclusive custody over awards of minors thus, may award fees proceeding consolidated where third seek letters of guardianship custody the minor whose is at issue in the law action. predicated following 10This case is on the amendment of section 4370 emphasized language: “During the pendency any proceeding part, under this the court any party, except governmental entity, (Stats. order pay . . . fees . . . .” ch.
1514 actions, issues relat- with coincidentally dealing unconsolidated independent law action. family to issues the ing duplicating acts, on the sole I would reverse the judgment Until the so Legislature did the which wife seeks ground juvenile proceedings that and, hence, a “proceeding law are neither family out of the action grow proceeding” law action nor a pending family “subsequent related []to” of section meaning the therein within (following entry judgment) was, the jurisdiction without accordingly, 4370. The lower court legal services those expended to award wife fees she juvenile proceedings.11 was denied March for review the Court petition by Supreme
Respondent’s 26, 1992. purpose the hastily sweep rug 11In under all the relevant evidence as to trying 1494, ante, is 4), majority point: statute fn. misses the main There (maj. opn., p. opinion endorsed, Legislature much less the bizarre absolutely contemplated, no evidence the even crafted achieve gloss opinion upon narrowly a statute which was majority which the foists shepherded particular purpose by sponsored legislation the State Bar—which stated Moreover, strange despite majority opinion’s it reliance through to the Governor’s desk. Stewart, 661, case unsigned criticizing supra, Cal.App. on two Sales v. 134 that student notes court; purpose of a by any holding has never been or overruled and its criticized (Id. obviously objective statute at key interpretation is the its correct. “[T]he as consideration sought prevented prime to be achieved a statute well as the evil to be is of (Western & Control interpretation.” Monterey Bay in its Oil Assn. v. Air Pollution Gas Unified 157], quotation marks Cal.Rptr. Dist. Cal.3d 426 777 P.2d internal [261 49 accord, omitted; Cal.3d fn. Morrison interpret [explicitly relying a letter of to the Governor 573 P.2d transmittal 41] FLA]; ing Walling (1946) U.S. another amendment to the Roland Co. 383, 391, substantially original from its depart L.Ed. Bill did not S.Ct. 413] [“[T]he .”]; words 2A
purpose. purpose meaning . . . Sutherland key This remains 48.11, (4th 1984) Aids—Legislative History, on ed. Statutory Construction Extrinsic pp. [sponsoring] groups other and individuals occasion 322-323 unofficial [“Statements including Sales v. ally interpretive [Citing have aids. numerous cases been admitted Stewart, sponsored only group or individual has supra.] The statements are valuable Indeed, Presiding Justice Kline legislation through legislative process.”].) and led it relied, (American recently ascertaining purpose such of a statute. correctly, on aids in Court, 485-486.) do same Superior supra, Cal.App,3d pp. We should Tobacco Co. v. here.