Marriage of Smith (2015)

Marriage of Smith (2015) was an appeal to the Fourth District, Division Two, Court of Appeal as a result of post-judgment litigation.  Mark and Kierstin Smith divorced in 2002, but post-judgment child custody and support litigation ensued.  Mark’s current wife, Cindy, joined in the litigation as a Claimant.

In 2008, Mark requested a modification of child support, attorney fees under Family Code section 2030, and a Family Code section 271 fee sanction against Kierstin.  Additionally, in 2010, Mark requested that child custody change.  Trial of the substantive issues was concluded on June 27, 2013, with the issues of attorney fees and a fee sanction in the form of attorney fees heard on July 3, 2013.  On November 4, 2013, the family court judge filed her order that Kierstin pay $124,352.00 to Cindy, and $151,967.00, less a specific offset, to Mark.  

The family court judge specifically found that Kierstin and her attorneys’ “‘zealous advocacy crossed the line and became unreasonable, unduly burdensome and at times an exercise in bad faith.'” She went on to find that the case became complicated by the “‘overzealous litigation'” on Kierstin’s counsels’ part and Kierstin’s “complete abandonment of the litigation process.”  It was a “‘morass of litigation, the primary purpose of which was to ruin [Cindy and Mark] financially.'”  

The family court judge further found Kiersten to have “‘no concern about the level of her attorney fees because her father [Robert Hemborg] was committed to paying those fees and costs whatever the amount.'”  Robert Hemborg testified at trial that “‘Kierstin was due to inherit six (6) million dollars upon his death.'”  The family court judge found that the amounts given to Kierstin for her fees and costs was “‘a loan against Kierstin’s inheritance.'”  Mr. Hemborg testified that he did not expect repayment during his lifetime of the $322,653.39 he had already paid in fees to Kiersten’s lawyers.

Mark and Cindy each still owed over six figures in attorney fees and had no savings or liquidity.

Kiersten argued that because the family court judge made no distinction between what was to be paid in fees under Family Code section 2030 and what was to be paid in fees under Family Code section, although the family court judge stated that the fees were being ordered “‘pursuant to Family Code sections 2030 and 271.'” she inappropriately combined cost shifting (meaning contributions) to Mark’s and Cindy’s attorney fees with a fee sanction.   Kierstin also contended that the family court judge shouldn’t have made the award of a contribution to attorney fees under Family Code section 2030 by considering the funds paid to her attorneys by her father.  Finally, Kierstin argued that such an award under Family Code section 271 was improper. 

Relevant family law and analysis

Combining Family Code section 2030 contributions (cost shifting) with sanctions is not error.  The family court judge’s order “‘pursuant to Family Code sections 2030 and 271′” without further distinction “is fairly read to indicate that the amounts awarded would be appropriate, in there entirety, under either statute.”  Moreover, “‘if a judgment is correct on any theory, the appellate court will affirm it regardless of the trial court’s reasoning.”‘  (Cahill v. San Diego Gas & Electric Co. (2011) 194.Cal.App.4th 939, 956.)

Calculating the parties’ relative circumstances using the payments from Kierstin’s father which would be deducted from her inheritance on his death was not an abuse of discretion.  Family Code section 2030(a)(1) requires that the family court judge “ensure that each party has access to legal representation . . . by ordering, if necessary based on the income and needs assessments, one party . . . to pay to the other party, or to the other party’s attorney, whatever amount is reasonably necessary for attorney’s fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding.”  The family court judge must determine what award would be “just and reasonable under the relative circumstances of the respective parties” (Family Code section 2032(a)), including the catch-all “[a]ny other factors the court determines are just and equitable” (Family Code sections 4320(n), 2032(b)).    

The trial court considered the payments made by Kiersten’s father, even though they were characterized as as loan, which the appellate court analogized to recurring gifts:  “‘where a party receives recurring gifts of money, the trial court has discretion to consider that money as income'” (Marriage of Alter (2009) 171 Cal.App.4th 718 722-723 [recurring gifts may be considered for purposes of determining child support payments]) and the analysis in Alter applies equally well to the analysis under Family Code sections 2030 and 2032.  Even if characterized as a loan, an advance against a party’s share of an expected inheritance is properly treated as a gift.  (Marriage of Williamson (2014) 226 Ca.App.4th 1303, 1313-1314 [discussing authority regarding advancements on inheritance].)  And, to exclude those funds from consideration would vitiate one of the primary purposes of Family Code sections 2030 and 2032, i.e., to prevent one party from being able to “litigate[] [the opposing party] out of the case,” by taking advantage of their disparate financial circumstances.  (Marriage of Cryer (2011) 198 Cal.App.4th 1039, 1056.)

Lastly, because the amounts awarded were appropriate under Family Code section 2030, the appellate court declined to address whether it would have been appropriate under Family Code section 271, which does not take into account the relevant circumstances of the parties but focuses on the behavior of an individual party and his or her counsel.