Lead Opinion
Opinion
Charles H. Seaman II appeals from an order of the family law court in a dissolution action awarding his former wife attorney’s fees in a separate juvenile court action, In re Marjorie S. (Super. Ct. Alameda County, 1991, Nos. 143621/143622; A046829). He contends the trial court lacked jurisdiction to order such fees and the award denied him procedural due process.
On September 23,1987, appellant filed a petition for the dissolution of his marriage to respondent, Patti Sue Menjou. The events which preceded the dissolution were the subject of an earlier appeal from a juvenile court action that resulted in the establishment of dependencies for the couple’s two children, J. and H. In May of 1987, J., then three years old, related a dream which led respondent to believe appellant had molested her. Respondent, who had herself been molested as a child, reported the possible molestation to the Alameda County Children’s Protective Service (CPS) in June. CPS closed its case in July, after which respondent made additional reports in July and September but the case was not reopened, the agency noting concerns that respondent had contaminated the child’s statement due to her obsession with molestation issues.
Pursuant to the parties’ agreement, Dr. Linda Campbell began to assess the family in June of 1987. Campbell was unable to determine whether J. had been molested and was very concerned that respondent’s emotional involvement in the situation was causing the child harm. She last saw the family in October because respondent no longer wanted her to work on the case.
In November 1987, the court appointed Dr. Ricardo Hofer, a clinical psychologist, to assess the family and make recommendations regarding custody and visitation. Hofer concluded there was a low probability J. had actually been sexually molested and a probability respondent was overidentifying or merging with J., and felt respondent’s affect was hurting the children as much as any possible molestation. Pursuant to Hofer’s evaluation, the court ordered joint physical custody of the children, with the children spending two nights at a time with each parent on a rotating basis.
In June 1988, CPS reopened its investigation because J. was continuing to make statements regarding molestation to her day care provider, the emergency response worker and the child welfare worker. A petition was filed on August 6, 1988, and amended on February 24, 1989, alleging that J. and H. came within the provisions of Welfare and Institutions Code section 300 in that appellant had sexually molested and frightened the minors and respondent was causing them emotional damage because of her preoccupation with the molest and was unable to properly care for them. After a jurisdictional hearing which continued over the course of 16 court days, the juvenile court found that J. was suffering or at substantial risk of suffering serious emotional damage as a result of appellant having sexually molested her and threatened her in various ways if she told of the molestation; respondent was preoccupied with the sexual molestation and her repeated discussions of
On July 6, 1989, respondent’s attorney in the dependency proceeding, Christopher F. Emley, filed a memorandum of law in the dissolution action seeking to have appellant pay respondent’s fees and costs in the dependency action. The court found respondent had incurred legal expenses exceeding $50,000 in the dissolution and dependency actions. Finding that both parties were to blame for the harm to the children but that respondent’s flowed from and was outweighed by appellant’s, and considering the parties relative financial positions, the court ordered appellant to contribute $40,000 toward payment of the fees, of which $25,680 was for Emley’s fees.
Meanwhile, appellant had appealed to this court from the judgment in the dependency action. In an unpublished opinion, we concluded that the trial court erred in admitting certain testimony without requiring a foundation pursuant to the principles of People v. Kelly (1976)
Discussion
The question we are called upon to address in this appeal is whether a trial court in a dissolution action may order one spouse to pay a portion of the other’s attorney’s fees incurred in the course of defending a dependency proceeding under Welfare and Institutions Code section 300. Appellant contends the trial court erred in concluding it could make such an order either under the authority of Civil Code section 4370
I.
Section 4370, subdivision (a), provides in pertinent part as follows: “During the pendency of any proceeding under this part, the court may order any party, except a governmental entity, to pay such amount as may be reasonably necessary for the cost of maintaining or defending the proceeding and for attorneys’ fees; and from time to time and before entry of judgment, the court may augment or modify the original award for costs and attorneys’ fees as may be reasonably necessary for the prosecution or defense of the proceeding or any proceeding related thereto, including after any appeal has been concluded.” (Italics added.)
By its reference to proceedings “under this part,” section 4370 specifies that it applies to proceedings under the Family Law Act (FLA). (Brink v. Brink (1984)
The few cases we have discovered that directly address the “related” proceeding language do not interpret it in a manner that provides us guidance but simply make judgment calls as to whether the particular actions involved were “related” to the underlying divorce. Thus, in Gottlieb v. Gottlieb (1957)
“Relate” is defined in Webster’s New Collegiate Dictionary (1977) as “to show or establish logical or causal connection between” or “to have relationship or connection: Refer.”
A motion for attorney’s fees in a marital dissolution action is left to the sound discretion of the trial court and will not be overturned absent an abuse of that discretion. (In re Marriage of Sullivan (1984)
The purpose of an award under section 4370 is “to provide one of the parties, if necessary, with an amount adequate to properly litigate the controversy.” (In re Marriage of Sullivan, supra,
In keeping with the purpose of section 4370, the most obvious function of the “related” proceeding language is to allow a trial court to fully ensure both parties’ ability to maintain or defend a FLA action. For example, by authorizing fees in cases related to FLA actions as well as in those directly under the FLA, section 4370 enables a trial court to ensure that an appropriate degree of financial parity between the parties is not lost by a party’s litigation of matters which could have been part of the FLA action in an independent suit. (See In re Marriage of Green, supra,
At the same time, not all actions which are in some way related by subject matter to a FLA action can properly be viewed as within the reach of section 4370. For example, during the pendency of a dissolution proceeding, the husband finds the wife with her lover, becomes involved in a physical altercation and is subsequently sued by the lover for assault. Although the assault case arises out of the dissolution in a general way, the husband’s act is so independent of the dissolution that no purpose of section 4370 would be served by having the wife contribute toward his legal fees (assuming the wife to be the party with greater financial resources).
In the present case, the trial court found that the juvenile court proceedings “were simply an extension of the Family Law action and that, had the matter not been litigated in Juvenile Court, it would have been in this court.” This view ignores fundamental differences between dissolution actions involving the issue of custody of minor children and dependency proceedings under Welfare and Institutions Code section 300. In a dissolution action,
In a dependency proceeding, by contrast, the state acts to protect children who have been or are at risk of being harmed in specific ways enumerated in Welfare and Institutions Code section 300. (See In re Benjamin D. (1991)
The child is a party to a dependency proceeding and is entitled to representation by counsel. (Welf. & Inst. Code, § 317; In re Anne P., supra,
Finally, juvenile court proceedings take precedence over other proceedings affecting the custody of children so that once a minor has been adjudged a dependent child of the juvenile court no other superior court may entertain
Section 4370, as explained above, was meant to allow both spouses to properly litigate actions under the FLA, in this case an action for dissolution and child custody. Since the dependency statutes establish a self-contained scheme under which the state acts to prevent particular types of harm to children, not tied to and taking precedence over any other means of determining custody, and differing from family law custody disputes in focus, power of the court and available remedies, to require one spouse to pay for fees incurred by the other in defending against a dependency petition simply would not serve section 4370’s purpose of enabling spouses to properly litigate matters arising from the dissolution of their marriage. This is especially true since the Welfare and Institutions Code contains its own provisions to ensure parents’ representation by giving courts discretion to appoint counsel for parents who are unable to afford counsel. (Welf. & Inst. Code, § 317.) Accordingly, the trial court erred in determining that section 4370 authorized an award of fees for respondent’s attorney in the dependency proceeding and thus abused its discretion in requiring appellant to contribute toward those fees.
We do not mean to suggest that dependency or other proceedings ordinarily unrelated to FLA proceedings may not become “related” by virtue of the motives of the party initiating the proceeding in question. For example, where a parent dissatisfied with the ruling of a domestic relations court manages to prevail upon the relevant authorities to file a dependency petition in order to harass the other parent or to otherwise avoid the valid order of the
II.
The trial court’s reliance upon the principles of In re Marriage of Stitt, supra,
In Stitt, the wife sought to have her husband share in the costs of litigation which arose from her independent actions; the essence of the holding is that an innocent spouse may be relieved of his or her share of a community obligation arising solely out of the act of the other spouse. In the present case, respondent is not seeking to have her attorney’s fees treated as a community obligation but to avoid all cost to herself and have appellant bear the full burden of the fees directly. This is simply not a situation to which Stitt applies. Additionally, unlike the husband in Stitt, respondent was not a wholly innocent spouse: The dependency petition was sustained in part on the basis of allegations against her.
Smith, J., concurred.
Notes
The court’s award of $14,320 for the fees of respondent’s attorney in the dissolution action, Eileen Preville, are not contested in this appeal.
All further statutory references will be to the Civil Code unless otherwise specified.
Respondent contends appellant’s failure to request a statement of decision is fatal to his appeal. Unlike the cases respondent relies upon (In re Marriage of Ditto (1988)
In his concurring opinion, Justice Peterson concludes that fees may be awarded under section 4370 only for services incurred in proceedings under the Family Law Act because he believes this was the purpose of the State Bar, which sponsored the 1951 legislation that became section 4370. There is, however, no indication in the legislative history whatsoever that the Legislature shared the State Bar’s restrictive view. Sales v. Stewart (1933)
Gottlieb v. Gottlieb, supra,
The definitional terms “connection,” “relationship,” and “refer” are each defined by reference to each other: “Relationship” is defined as “the state or character of being related or interrelated: Connection”; “refer” is defined as “to have relation or connection: Relate”; “connection” is defined as “the act of connecting: the state of being connected: as ... a causal or logical relation or sequence.”
The court in In re Brendan P. (1986)
Although they have no direct bearing on the question of attorney’s fees at issue here, the cases involving conflicts of jurisdiction between juvenile and domestic relations courts illustrate how the facts of a given case can make the two types of proceedings seem more or less distinct. In re Brendan P., supra,
By contrast, in In re William T., supra,
Similarly, in In re Benjamin D., supra,
Under former section 5116 (and present § 5120.110), the community is liable for contracts made by either party during marriage. (Stitt, supra,
The court in In re Marriage of Hirsch (1989)
In view of our conclusions above, we need not discuss appellant’s additional contention that the trial court’s order denied him procedural due process.
Concurrence Opinion
I concur in the result reached by the majority. I write separately to disavow the majority’s suggestion in dictum that the Legislature, in enacting Civil Code
I would reach the holding of the majority because: (1) The “proceeding related thereto” language of section 4370 was intended to mean proceedings postjudgment and pendente lite growing out of the family law action itself; and (2) the sole bases for determining the liability of one party in a family law case to pay costs and fees therein to the other are the respective contemporaneous needs and financial condition of each party.
A. Relevant Legislative History
The majority correctly finds that the mere analysis of the “proceeding related thereto” language of section 4370 (and particularly the word “related”) results in conclusions of such generality that ascertaining the meaning of the phrase by that method is impossible.
However, my colleagues, with the majority of courts commenting on the language of section 4370, have failed to properly analyze the purpose and legislative history of this statute and its predecessors in interpreting the intent, purpose, and function of the “proceeding related thereto” language.
Further, the majority’s conclusion, that “The generality of the statutory language thus leaves a wide area for exercise of the trial court’s discretion in determining whether an [independent] action is ‘related’ to a [Family Law Act (Civ. Code, §§ 4000-5317) (FLA)] proceeding” (maj. opn., ante, p. 1496), assumes a legislative intent which never existed on passage of the statute in question, while ignoring cardinal rules of statutory construction which precedent commands we follow. This majority language now fastens an interpretation on the Legislature’s action, almost four decades after the language at issue was introduced into the Civil Code, which the Legislature has never subsequently evinced it so intended.
We have heretofore said: “In determining what the Legislature intended we are bound to consider not only the words used, but also other matters, ‘such as context, the object in view, the evils to be remedied, the history of the times and of legislation upon the same subject, public policy and contemporaneous construction. . . .’ [Citation.]” (American Tobacco Co. v. Superior Court (1989)
Where the State Bar of California sponsors and urges passage of legislation enacted into law, as it did here, the Bar’s report, discussion, and comments on its legislative proposal are valuable interpretive aids generating the reasonable assumption that the Legislature adopted the statute or amendment it enacts consistent with the expressed State Bar purpose. (Sales v. Stewart (1933)
2. The Prior Law
A brief examination of the law as it existed prior to 1953 is necessary to assist in identifying “the evils to be remedied” by A.B. 2438.
As amended in 1941, former section 137 provided, inter alia: “During the pendency of any such [divorce] action the court may, in its discretion, require the husband or wife ... to pay ... as attorney’s fees any money necessary for the prosecution of the action . . . .” (Stats. 1941, ch. 1038, § 1, pp. 2686-2687.)
From the latter part of the 19th century to 1950, a line of cases held that an attorney fees application, made pursuant to section 137 after the subject legal services were rendered in a divorce action, should be rejected as untimely. (See, e.g., Kohn v. Kohn (1950)
These cases had for decades placed litigants in divorce cases, and particularly their lawyers, in an obvious and disturbing dilemma. If a client/spouse with no funds needed immediate legal services to forestall the other spouse, for example, from disposing of community property or to obtain a temporary restraining order to preclude injury to the client or the client’s children, neither the lawyer nor the client could receive payment for those services from the adverse spouse (usually the husband) unless an order for payment of future services and costs was first obtained, or a stipulation was entered for the court’s consideration of such fees and costs at trial. If, in the superior interests of the client, emergency conditions dictated the professional performance of such services in advance of securing either an order against the adverse spouse to pay for the same, or the appropriate stipulation, the rule of Kohn and McClure applied. No “necessity” existed for payment for past performed attorney services, regardless of the ability of the other spouse to pay. The inequity and unfairness of this archaic rule were obvious to all.
3. The Legislative Proposals of the State Bar
Legislative change was the obvious method of rectifying this rule; and the State Bar first undertook this task in 1951 by proposing the addition of a new section 137.5, to read as here pertinent: “Upon application, the court may in
The Legislature, however, in the 1951 session simply rewrote section 137, transferring its provisions for costs and attorney fees to a new statute, section 137.3, the predecessor of section 4370. The bar’s proposal, that new section 137.3 provide for the award of fees for services rendered and costs expended in domestic relations cases prior to application therefor, was not explicitly set forth in the 1951 enactment of section 137.3. The statute as finally adopted read: “During the pendency of any action for divorce or for separate maintenance . . . , the court may order the husband or wife ... to pay such amount as may be reasonably necessary for the cost of maintaining or defending the action and for attorney’s fees.” (Stats. 1951, ch. 1700, § 4, p. 3911.)
The State Bar returned to the Legislature in 1953 on this subject as part of its affirmative legislation program for that year, sponsoring amendments to section 137.3 which it characterized as its “final text of a bill on past services in domestic relations matters,” which became A.B. 2438. (Com. Reps., Administration of Justice (1953) 28 State Bar J. 256, § (B), p. 269, italics added.)
A.B. 2438, inter alia, added this language to section 137.3 (now § 4370): “During the pendency of any action for annulment . . . and of any action for divorce or for separate maintenance, or for the support ... of children, upon an order to show cause or motion, and if such relief is requested in the complaint . . . , the court may order [payment as] . . . reasonably necessary ... for [costs] . . . and for attorney’s fees[] . . . and before entry of judgment . . . may augment or modify the original award, if any, for costs and attorney’s fees as may be reasonably necessary for the prosecution
The bar announced to its membership that A.B. 2438 would authorize “an award for past services [in domestic relations matters] and costs, including services rendered and costs incurred prior to the filing of the complaint.” (Com. Reps., Administration of Justice (1953) 28 State Bar J. 256, § (B), p. 269.) By way of further explanation of that bill, the bar said: (1) The award could be augmented or modified; (2) fees and costs had to be requested in the appropriate pleading as a condition to order to show cause or motion for such fees and costs; (3) allowances for costs and services prior to judgment must be finalized by that time; (4) allowances for costs and services subsequent to judgment (i.e., “in connection with an appeal, or in later enforcement proceedings”) would be made on order to show cause or motion; (5) the basis for allowance of fees and costs remained measured by reasonable necessity; and (6) the amendments continued to leave awards of fees and costs to the discretion of the trial court—not compelling the court to do so, but empowering it to so act. (Ibid.)
The State Bar, having sponsored A.B. 2438, which passed both houses without a single amendment, confirmed the purpose of its sponsorship in a communication, through its secretary and counsel, to Governor Warren dated April 28, 1953, as follows: “[A.B. 2438], which has passed both houses of the Legislature and will be before you for consideration, was introduced at the request of the State Bar of California as a part of its affirmative legislative program, HD The bill would amend Section 137.3 of the Civil Code (enacted in 1951, covering matters formerly in Section 137). HD At present, orders for attorneys’ fees and costs in domestic relations cases are made on applications in advance covering future services. The primary purpose of this bill is to empower the court to make appropriate orders without being restricted to a fixed rule as to time when the application must be made. Under the bill, if the pleading requests the relief then an application must be made upon order to show cause or motion. The court could base its award upon services rendered or incurred prior as well as subsequent to the application. The Court could upon like application augment or modify the original award, if any. Similar provisions are made for allowances for services rendered in proceedings after judgment and such allowances would require an application on order to show cause or motion. HD ... HD The amendments will eliminate the necessity for speculation in advance, or the necessity of following the present practice of stipulating that the amounts be fixed at the
4. The Purpose of the Legislation
In summary, the State Bar sponsored legislation, passed by both legislative houses and signed by Governor Warren, was never presented or represented as concerning services rendered and costs expended on matters which did not grow out of the domestic relations case itself. It corrected the “evils” and hardship of arbitrarily tying payment of legitimate attorney fees and costs to the time of application therefor, thereby precluding the inability of indigent domestic case litigants to obtain payment for necessary past professional services of counsel prior to an order therefor, without a stipulation waiving the prior order. Further, A.B. 2438, in eliminating the antiquated procedure of requiring either a voluntary stipulation for the court’s future consideration of payment for past legal services rendered and costs expended, or a prior order for payment therefor, was proposed to decrease the volume of orders to show cause necessitated when adverse counsel refused to so stipulate. The proliferation of multiple orders to show cause for payment of attorney fees and costs generated by the law followed prior to A.B. 2438 obviously wasted considerable time of the courts, parties, and counsel during the pendency of domestic relations litigation.
An additional obvious purpose of A.B. 2438 was to remove fixed time restrictions controlling attorney fees and costs allowances in all “domestic relations cases” by creating a statute of uniform application to annulments, divorce, and separate maintenance; and to the support, maintenance, or education of children.
Further, at the time A.B. 2438 was considered and passed by the Legislature, the legal principle had been well established since 1872 that attorney fees were to be paid if specifically provided for by statute or by agreement of the parties. (Code Civ. Proc., § 1021 as amended by Stats. 1933, ch. 744, § 180, p. 1899.) “Except where attorney’s fees are specifically allowed by statute, or by contract of the parties, they are not recoverable by a successful litigant as costs or otherwise.” (Murphy v. Murphy (1925)
A. B. 2438, thus, simply altered the California practice of many decades which required advance application or stipulation for future attorney fees in domestic relations cases, or a stipulation obviating the same, to preclude rejection of fee applications for attorney services theretofore performed. It never purported to say what the majority now says it said.
B. The Flaws in the Majority’s Analysis
Practical considerations and simple common sense, thus, require the rejection of the majority’s threadbare claim that “The generality of the statutory [related thereto] language thus leaves a wide area for exercise of the trial court’s discretion in determining whether an [independent] action is ‘related’ to a FLA proceeding.” (Maj. opn., ante, p. 1496.) The erroneous implication this analysis conveys is that the language of A.B. 2438 as incorporated into section 4370 allows family law courts, with or without proper joinder or an order of consolidation, (as the trial court in this case wrongly concluded it was allowed) to award to a spouse in a family law action the attorney fees incurred in a totally independent and separate action which somehow “relate[s]” to the domestic relationship or property or children of the parties.
All claims and lawsuits by third parties involving recovery of damages from one or both spouses “relate[]” to their separate and community property, potentially the source of satisfying an adverse judgment with a concomitant loss of financial assets on which support orders may be based. All criminal and juvenile and civil actions involving the parties’ minor children or the guardianship of their person or estate or their personal injury recoveries “relate[]” to the custody and support of those children, matters always
The majority further rationalizes its holding as follows: “For example, by authorizing fees in cases related to FLA actions as well as in those directly under the FLA, section 4370 enables a trial court to ensure that an appropriate degree of financial parity between the parties is not lost by a party’s litigation of matters which could have been part of the FLA action in an independent suit.” (Maj. opn., ante, p. 1497, italics added.)
This reasoning would, of course, allow judges and commissioners in family law cases to award fees incurred by a spouse in separate litigation in which the very court hearing that separate litigation is powerless to award those fees—because no statute or agreement gives it that authority. For example, a husband incurring fees in separately and successfully codefending with his estranged wife an uninsured case against both parties for tortious damage where no fees are allowable to him could potentially use the family law action to collect those fees from the wife, on the majority rationale that he thereby preserved the community from being eroded by a potential judgment creditor and such action is, thus, “related” to the family law action in which the protected community property is to be divided.
The time-consuming conditions and enormous workloads facing family law judges and commissioners today, accelerated by increasingly intricate requirements of the FLA and a concomitant acceleration of the number of those family law litigants who appear in propria persona, are widely known. The ramifications of the potential additional workload the majority dictum would thrust on already overburdened family law judges and commissioners, by means of the rationalization it utilizes in interpreting section 4370, are more than mind boggling and are extremely forbidding. Family law courts should not be required, on the majority’s analysis of the “proceeding related thereto” language of section 4370, to adjudicate such extraneous considerations; they should simply continue to exercise their discretion as to awards of attorney fees and costs controlled by established legal principle (Bluhm v. Bluhm (1954)
C. Relevant Case Law
The better reasoned cases have, albeit without analysis of statutory history, rejected any proposal to utilize the language of section 4370 as a basis of conferring upon family law judges and commissioners the power to make awards of attorney fees in family law actions for services in cases where the court hearing them was prohibited from doing so. The cases construing section 4370 and former sections 137 and 137.3 do not support the analysis and reasoning of the majority.
For instance, In re Marriage of Newport (1984)
This principle, that attorney fees are to be allowed in those proceedings which “grow[] out of’ the divorce proceeding, stems from the decision in Lerner v. Superior Court (1952)
Where the action does not grow out of the divorce, fees under section 137.3 are properly denied. Thus, in Hendrix v. Hendrix (1955)
A few years later, the Second District also rejected a broad interpretation of the “relating thereto” language in Gottlieb v. Gottlieb (1957)
In Brink v. Brink (1984)
The Brink court affirmed the trial court’s denial of the attorney fees wife sought in her lawsuit, claiming authority therefor under section 4370: “[T]he trial court lacked any authority to award attorneys’ fees, since the action was not pursued under the [FLA] and no other statute or contractual agreement provided for recovery of attorneys’ fees.” (
Finally, it should be noted that section 4370 of the same FLA, aside from other considerations of legislative history, includes the language “[d]uring the pendency of any proceeding under this part [the FLA] . . . .” The reasonable and analogous implication is that the “proceeding related thereto” language of section 4370 means related proceedings under the FLA, not those of some independent action.
The Legislature has certainly shown itself willing to amend section 4370 in light of experience. (See In re Marriage of Reyes (1979)
The Legislature has not provided, by amendment or otherwise, for the award in family law cases of fees and costs which a party thereto incurs in
Until the Legislature so acts, I would reverse the judgment on the sole ground that the juvenile proceedings in which wife seeks attorney fees did not grow out of the family law action and, hence, are neither a “proceeding related []to” a pending family law action nor a “subsequent proceeding” (following entry of judgment) therein within the meaning of section 4370. The lower court was, accordingly, without jurisdiction in the family law action to award wife fees she expended for legal services in those juvenile proceedings.
Respondent’s petition for review by the Supreme Court was denied March 26, 1992.
Unless otherwise indicated, all subsequent statutory references are to the Civil Code.
This legislation in 1953 amended then-section 137.3, which was first added to the Civil Code in 1951. (Stats. 1951, ch. 1700, § 4, p. 3911.) A.B. 2438, inter alia, added the “proceeding related thereto” language to section 137.3, now incorporated in section 4370.
Attorney fees in annulment of void (present §§ 4400-4401) and voidable (present §§ 4425-4429) marriages, now governed by section 4456, were dealt with by former section 87 which, as pertinent, read: “The court shall have power to grant attorneys fees ... as provided by Section 137” in annulment actions to the party innocent of fraud or wrongdoing generating grounds for annulment. (Stats. 1947, ch. 951, § 1, p. 2220.) Present section 4456 relating to payment of attorney fees and costs in annulment actions allows them “in accordance with Section 4370 ...”
Since former section 137, in force at the time Kohn, supra, and like cases were decided, then applied to both divorce and annulment cases, the same principle extended to annulment actions, i.e., no attorney fees award would be granted if requested after completion of the legal services for which compensation was sought.
The 1951 version of section 137.3 generated authority focusing on its “[d]uring the pendency of any action” language. For example, a divorce action was found to be “pending” where the trial court was to determine whether payments, ordered to be made following agreement of the parties and entry of a judgment of divorce, were alimony and subject to modification; hence, the court could award wife attorney fees. (Dexter v. Dexter (1954)
See In re Marriage of Siller (1986)
A flood of litigation is conceivable on such issues as whether section 5122 (married persons are not liable for the damage caused by the other spouse unless liable if the marriage did not exist) is a bar to seeking fees in the example above posed.
The phrase “[djuring the pendency of any action,” with which A.B. 2438 began former section 137.3, now reads in section 4370: “[djuring the pendency of any proceeding under this part [the FLA] . . . .” This change in language does not change the analysis of these cases—that “pendency” includes proceedings growing out of the family law action.
Section 137.3 became section 4370 by means of the 1970 enactment of the FLA. (Stats. 1970, ch. 311, § 1, p. 705.) This recodification was not intended to effect any substantive change to the pre-1970 line of cases which defined “proceeding^] relating thereto” in this context: “This act does not constitute a change in, but is declaratory of, the existing law.” (Id., § 15, p. 706.)
In Green v. Uccelli (1989)
To the same effect is Guardianship of Paduano (1989)
Paduano, in allowing fees in the family law case arising out of the consolidated guardianship proceeding concerning child custody (an action not brought under the FLA), on the rationale the issues were interlinked in the consolidated cases, seems difficult to rationalize in light of the statutory history of section 4370, Brink, supra, and the cases restricting attorney fees to proceedings “growing out of’ the family law action. Like other cases considering section 4370, Paduano has not analyzed the legislative history and intent concerning the “proceeding related thereto” language of that section and its predecessor statutes. Paduano appears to adopt the coincidental linkage of issues of child custody, existing in a separate guardianship action and a family law action, as a rationale for allowing fees under section 4370 against the unsuccessful petitioner in the guardianship, rather than analyzing whether fees were allowable because the guardianship action was joined with the family law action as in In re Marriage of Siller, supra, 187 Cal.App.3d at pages 45-47, or “[grew] out of’ the family law action. It seems obvious the aunt’s guardianship petition did not grow out of the family law action. She, like the county in our case, sought by an independent action to obtain custody of the child from both its parents, parties to the family law action. Neither parent
This case is predicated on the amendment in 1981 of section 4370 by the following emphasized language: “During the pendency of any proceeding under this part, the court may order any party, except a governmental entity, to pay . . . attorney’s fees . . . .” (Stats. 1981, ch. 715, § 1, p. 2816.)
In trying to hastily sweep under the rug all the relevant evidence as to the purpose of the statute (maj. opn., ante, p. 1494, fn. 4), the majority opinion misses the main point: There is absolutely no evidence the Legislature even contemplated, much less endorsed, the bizarre gloss which the majority opinion foists upon a statute which was narrowly crafted to achieve a particular purpose stated by the State Bar—which sponsored the legislation and shepherded it through to the Governor’s desk. Moreover, despite the majority opinion’s strange reliance on two unsigned student notes criticizing Sales v. Stewart, supra,