Filed 9/12/16 Marriage of Elizabeth and Gregory G. CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


In re Marriage of ELIZABETH and                                      B259276
GREGORY G.
                                                                     (Los Angeles County
                                                                     Super. Ct. No. BD442597)
ELIZABETH G.,

         Appellant,

         v.

GREGORY G.,

         Respondent.




                   APPEAL from an order of the Superior Court of Los Angeles County,
Christine Byrd, Judge. Affirmed.


                   Honey Kessler Amado for Appellant.


                   Law Offices of Sandra Segal Polin, Sandra Segal Polin; Trope &
DeCarolis, Patrick DeCarolis Jr. and Melissa R. Fresquez for Respondent.
                               ____________________________________
                                    INTRODUCTION


       Family Code section 20301 allows a party to a marital dissolution action and
related proceedings to request attorneys’ fees from the other party to ensure both parties
have adequate funds to properly litigate the controversy. A party may make a request for
attorneys’ fees under section 2030 at any time in the proceeding.
       In a prior appeal, In re Marriage of Elizabeth and Gregory G. (Mar. 17, 2014,
B236719) [nonpub. opn.], Elizabeth G. challenged a restraining order issued by the
family court that enjoined her from having any contact with her former husband, Gregory
G., and her son for five years.2 We reversed that order and remanded for further
proceedings. Elizabeth subsequently filed in the family court a request under Family
Code section 2030 for attorneys’ fees incurred in the appeal and for attorneys’ fees
incurred in the family court after the appeal. The court denied the request for appellate
fees as untimely because the court concluded “the appeal is finished, i.e., it is no longer
pending.” The court denied Elizabeth’s request for attorneys’ fees for post-appeal
proceedings in the family court because the court found Elizabeth was not entitled to an
award of attorneys’ fees under section 2030.
       Elizabeth appeals from that portion of the family court’s order denying her request
for attorneys’ fees incurred in the prior appeal, arguing that the court erred in finding her
request untimely. Although we agree with her that the request was not untimely, we
affirm because she has failed to show any prejudice or a miscarriage of justice as a result
of the court’s order.




1      Undesignated statutory references are to the Family Code.


2      As is customary in family law cases, we refer to the parties by their first names for
convenience and clarity. (See In re Marriage of Herr (2009) 174 Cal.App.4th 1463,
1466, fn. 1.)

                                               2
                  FACTUAL AND PROCEDURAL BACKGROUND


       Elizabeth and Gregory were married in March 2005. Their son was born in July
2005, and Elizabeth and Gregory separated in March 2006.3 In connection with various
post-judgment proceedings, the family court on August 26, 2011 issued a five-year
restraining order against Elizabeth. Elizabeth appealed from that order, and on March 17,
2014 we reversed and remanded to the family court. (In re Marriage of Elizabeth and
Gregory G. (Mar. 17, 2014, B236719) [nonpub. opn.].) We awarded costs on appeal to
Elizabeth. The remittitur issued on May 20, 2014.
       On June 2, 2014 Elizabeth filed a memorandum of costs on appeal in the family
court. The court clerk approved those costs on June 18, 2014.
       On June 4, 2014 Elizabeth filed in the family court a request for an order pursuant
to Family Code section 2030 awarding attorneys’ fees for appellate counsel and related
costs, as well as attorneys’ fees and costs for post-appeal proceedings in the family court.
On July 23, 2014 the family court denied Elizabeth’s request for attorneys’ fees for
appellate counsel because the appeal was “no longer pending.” The court also denied her
request for costs on appeal because the costs claimed “were already awarded.” In ruling
on Elizabeth’s request for attorneys’ fees for post-appeal proceedings in the family court,
the court applied the factors set forth in section 2030 and related provisions and
concluded that an award of fees was not necessary to ensure Elizabeth and Gregory had
access to legal representation.
       The court invited Elizabeth to file a motion for reconsideration of its order
denying fees incurred in the appeal, stating, “I could be mistaken.” Following
Elizabeth’s motion for reconsideration, however, the court again denied Elizabeth’s




3       Because this matter involves a minor whose parents share the same last name, we
refer to them using their first names and last initial to protect the minor’s identity. (See
Cal. Rules of Court, rule 8.401(a)(2) [requiring first names and last initials to protect the
identity of juveniles in juvenile court proceedings].)

                                              3
request for fees for appellate counsel, concluding that the request filed on June 4, 2014
was untimely.
       Elizabeth filed a timely notice of appeal on September 30, 2014. Elizabeth
appeals only from that part of the family court’s order denying her request for appellate
attorneys’ fees. She argues that her request was timely and that the family court’s order
should be reversed and remanded for the court to determine whether she is entitled to
such fees under section 2030. Gregory argues that the family court correctly concluded
that Elizabeth’s request for appellate fees was untimely and that, even if the request were
timely, any error was harmless because the court’s analysis under section 2030 in
connection with Elizabeth’s request for attorneys’ fees for post-appeal proceedings
applies equally to her request for appellate fees. We agree with Gregory’s second
argument.


                                       DISCUSSION


       A.     Governing Law and Standard of Review
       “The purpose of an attorney fees award in a marital dissolution proceeding is to
provide, as necessary, one of the parties with funds adequate to properly litigate the
matter.” (In re Marriage of Bendetti (2013) 214 Cal.App.4th 863, 868.) Sections 2030
and 2032 govern awards of attorneys’ fees in marital dissolution actions. Section 2030,
subdivision (a)(1), states in pertinent part: “In a proceeding for dissolution of marriage,
. . . and in any proceeding subsequent to entry of a related judgment, the court shall
ensure that each party has access to legal representation, including access early in the
proceedings, to preserve each party’s rights 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.”
       When a party requests attorneys’ fees under section 2030, the family court must
make findings on (1) whether an award of attorneys’ fees is appropriate, (2) whether

                                              4
there is a disparity in access to funds to retain counsel, and (3) whether one party is able
to pay for legal representation of both parties. (§ 2030, subd. (a)(2).) “If the findings
demonstrate disparity in access and ability to pay, the court shall make an order awarding
attorney’s fees and costs.” (§ 2030, subd. (a)(2).)
       Section 2032, subdivision (a), further provides that the family court may make an
award of attorneys’ fees under section 2030 “where the making of the award, and the
amount of the award, are just and reasonable under the relative circumstances of the
respective parties.” The factors considered in determining what is “just and reasonable
under the relative circumstances” include, to the extent relevant, the factors enumerated
in section 4320 for determining spousal support. (§ 2032, subd. (b).) “The party seeking
an award of need-based attorney fees has the burden of establishing need.” (In re
Marriage of Bendetti, supra, 214 Cal.App.4th at p. 868.)
       The court may award attorneys’ fees for services rendered “before or after the
commencement of the [marriage dissolution] proceeding.” (§ 2030, subd. (b).) The court
may also “augment or modify” an award for 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.” (§ 2030, subd. (c).)
       “‘On appeal, we review an attorney fee award under section 2030 for an abuse of
discretion.’” (In re Marriage of Smith (2015) 242 Cal.App.4th 529, 532; see In re
Marriage of Sorge (2012) 202 Cal.App.4th 626, 662.) To the extent the family court’s
decision reflects an interpretation of a statute, however, it presents a question of law we
review de novo. (In re Marriage of Dellaria (2009) 172 Cal.App.4th 196, 201; see In re
Marriage of Smith, supra, at p. 532 [“we consider de novo any questions of law raised on
appeal, but will uphold any findings of fact supported by substantial evidence”].) We
will not reverse absent a showing that any error was prejudicial and that a different result
probably would have occurred in the absence of the error. (In re E.M. (2014) 228
Cal.App.4th 828, 852; In re Marriage of Steiner and Hosseini (2004) 117 Cal.App.4th
519, 528-530.) “[T]here must be some reasonably specific articulated showing of a



                                              5
miscarriage of justice” to warrant reversal. (In re Marriage of Steiner and Hosseini,
supra, 117 Cal.App.4th at p. 530, fn. 3].)


       B.     The Family Court Erred in Ruling That Elizabeth’s Request for Appellate
              Attorneys’ Fees Was Untimely, but the Error Did Not Prejudice Elizabeth


              1.     Elizabeth’s Request for Appellate Attorneys’ Fees Was Timely
       Elizabeth argues that her request for appellate attorneys’ fees under section 2030
was timely because she filed it “during the pendency of the proceeding.” (See § 2030,
subd. (a).) In particular, she contends that the “proceeding” includes her appeal from the
family court’s order granting Gregory a restraining order, and that the applicable
California Rules of Court authorize a party to request attorneys’ fees on appeal in family
law matters within 40 days after the issuance of the remittitur by the Court of Appeal.
Elizabeth argues that, because she filed her request within that time period, her request
was timely.
       Section 2030 applies to requests for attorneys’ fees “in a proceeding for
dissolution of marriage.” (§ 2030, subd. (a).) The proceeding in which the family court
issued a restraining order against Elizabeth was part of the marital dissolution
“proceeding” between Elizabeth and Gregory. Indeed, the judgment of dissolution and
the order granting the restraining order had the same case number.4 Thus, the question is


4       Section 2030 also applies to a “proceeding subsequent to entry of a related
judgment” (§ 2030, subd. (a)), which includes proceedings culminating in postjudgment
orders such as orders modifying custody. (See Alan S., Jr. v. Superior Court (2009) 172
Cal.App.4th 238, 251 (Alan S.) [“[s]ection 2030 applies to orders pending post-judgment
matters, such as change-of-custody proceedings, just as much as it applies to litigation
leading up to the initial trial of the family law case”].) The restraining order proceedings
in this case, at a minimum, are similarly “related” to the judgment dissolving Elizabeth
and Gregory’s marriage. (See Alan S., supra, at p. 251; Askew v. Askew (1994) 22
Cal.App.4th 942, 964 [actions are “related” if they involve common questions of law or
fact]; 11 Witkin, Summary of Cal. Law (10th ed. 2005) Husband and Wife, § 180, p. 246
[“[t]he matters involved in the subsequent proceeding can be related to the prior

                                             6
whether Elizabeth filed her request for attorneys’ fees while the proceeding was
“pending” under section 2030, subdivision (a). (See also § 2030, subd. (b) [attorneys’
fees and costs under section 2030 may be awarded for legal services rendered before or
after the commencement of the proceeding].)5
       The proceeding on the restraining order was necessarily still “pending” at the time
Elizabeth filed her request for appellate fees because her appeal did not end the
proceeding. Indeed, in the prior appeal this court remanded the matter to the family
court, which held additional hearings on the scope and duration of the order well beyond
the date on which Elizabeth filed her request for attorneys’ fees, and the record of this
contentious divorce case suggests the proceeding may still be pending. In any event, at
the time Elizabeth filed her request for attorneys’ fees, the proceeding on the restraining
order had not been finally determined and was still pending. (See Code Civ. Proc., §



proceeding in any manner”].) Thus, even if the restraining order proceedings were not
part of the marital dissolution proceeding, section 2030 would still provide a basis for
Elizabeth’s request for attorneys’ fees.

5        Elizabeth cites several authorities for the proposition that section 2030 authorizes
family courts to award attorneys’ fees on appeal and that a successful appellant may file a
request for appellate attorneys’ fees after the appeal has concluded. The cases cited by
Elizabeth, however, assume without analysis that the party in that case had filed or could
file a timely request for appellate attorneys’ fees. (See, e.g., In re Marriage of Jovel
(1996) 49 Cal.App.4th 575, 586; In re Marriage of Paulin (1996) 46 Cal.App.4th 1378,
1385; In re Marriage of Colvin (1992) 2 Cal.App.4th 1570, 1582-1583.) And section
2030, subdivision (c), relied on by Elizabeth for the proposition that a party may make a
request for fees “after any appeal has been concluded,” does not apply here because that
provision only applies where, unlike this case, there is an “original award for attorney’s
fees” that the party is seeking to augment or modify. (See § 2030, subd. (c) [“[t]he court
shall augment or modify the original award for attorney’s fees and costs 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”].) Nevertheless, that
section 2030 authorizes a party to seek appellate attorneys’ fees is not controversial. (See
Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2016) ¶ 14:5, p.
14-2 and ¶ 16:421, p. 16-139; 11 Witkin, Summary of Cal. Law, supra, § 179, pp. 245-
246.)


                                              7
1049 [“[a]n action is deemed to be pending from the time of its commencement until its
final determination upon appeal, or until the time for appeal has passed”].)
       Elizabeth timely filed her request for appellate attorneys’ fees in the pending
proceeding. The California Rules of Court governing motions for attorneys’ fees on
appeal apply to cases arising under the Family Code. (See In re Marriage of Freeman
(2005) 132 Cal.App.4th 1, 9 [predecessors of California Rules of Court, rules 3.1702 and
8.278(c)(1) applied to “all applications for attorney fees incurred on post-judgment
appeals,” and the rules “make[ ] no exception for family law cases”].) California Rules
of Court, rule 3.1702 provides that “[a] notice of motion to claim attorney’s fees on
appeal . . . under a statute or contract requiring the court to determine entitlement to the
fees, the amount of the fees, or both, must be served and filed within the time for serving
and filing the memorandum of costs under rule 8.278(c)(1).” Rule 8.278(c)(1) in turn
states, “Within 40 days after issuance of the remittitur, a party claiming costs awarded by
a reviewing court must serve and file in the superior court a verified memorandum of
costs.” Therefore, parties to a family law action have 40 days following the date the
Court of Appeal issues the remittitur to request attorneys’ fees on appeal. (In re
Marriage of Freeman, supra, 132 Cal.App.4th at p. 9; see Hogoboom & King, Cal.
Practice Guide: Family Law (The Rutter Group 2016) ¶ 16:415, p. 16-137 [“[a] notice of
motion claiming appellate attorney fees for services rendered after rendition of the
judgment ordinarily must be served and filed within the time for serving and filing the
memorandum of costs under [California Rules of Court, rule] 8.278(c)(1)”].) Because
Elizabeth filed her request for appellate attorneys’ fees within the 40-day period
authorized by California Rules of Court, rule 8.278(c)(1), her request was timely.


              2.     Elizabeth Has Not Shown That the Family Court’s Order
                     Prejudiced Her
       Elizabeth, however, has not articulated any prejudice or miscarriage of justice
caused by the family court’s erroneous ruling that her request for appellate fees was
untimely. (See In re E.M., supra, 228 Cal.App.4th at p. 852; In re Marriage of Steiner

                                              8
and Hosseini, supra, 117 Cal.App.4th at p. 530, fn. 3.) Elizabeth has not appealed from
the portion of the order denying her motion for post-appeal attorneys’ fees incurred in the
family court. In that portion of its order, which Elizabeth does not challenge, the family
court applied the factors set forth in sections 2030 and 2032 and denied the request. The
court first found there was no disparity in access to funds to retain counsel because both
parties were able to retain counsel for the post-appeal proceedings in the family court,
and Elizabeth had already paid $12,500 to her new counsel to represent her in those
proceedings. The court next considered each party’s ability to pay for legal
representation for the other. The court found that “[b]oth parties have very limited
income based on their Income & Expense Declarations,” and that “neither party has the
ability to pay for his/her own representation, much less the representation of both
parties.” Finally, the court “considered whether the making of the award requested
would be appropriate, just and reasonable under the relative circumstances of the
respective parties, financial resources being only one factor,” and concluded that the
evidence did not warrant making such an award.
       Elizabeth has not shown or even argued in her briefs that, had the court
determined her request for appellate attorneys’ fees was timely, the court would have
reached a different conclusion under sections 2030 and 2032.6 Indeed, Elizabeth


6         In his respondent’s brief, Gregory argued that even if Elizabeth’s request was
timely, the family court’s order denying the request was harmless because “the court did
a full analysis of the factors that must be considered in determining a fee award pursuant
to . . . section 2030, a ‘needs-based statute’ as Elizabeth acknowledges, and the court
denied Elizabeth’s request for fees” in connection with her motion for post-appeal fees in
the family court. (Emphasis and citation omitted.) Gregory again argued that “the court
did an in-depth analysis of the factors set forth in . . . section 2030” before denying
Elizabeth’s request for post-appeal fees in the family court, and that because the “same
analysis applies to Elizabeth’s request for appellate fees, there is absolutely no
probability that Elizabeth could have obtained a more favorable result” on her request for
appellate fees. Elizabeth, although she recognized “the trial court found that there was no
disparity in income between Elizabeth and Gregory and that neither party had the ability
to pay for the legal representation of both parties,” did not respond to Gregory’s harmless
error argument, other than to assert that this court should still “decide the issue of the

                                             9
submitted the same evidence in support of her request for post-appeal fees in the family
court and her request for appellate fees, including her income, assets, and debts, as well
as Gregory’s assets and obligations. Elizabeth has not shown or argued how the factors
set forth in sections 2030 and 2032 could lead to any different result for the two requests
for attorneys’ fees, given that the court would have been analyzing the same lack of
disparity of access to funds, inability to pay, and relative circumstances for the same time
period. Therefore, she has not shown any prejudice or a miscarriage of justice from the
family court’s denial of an award of her appellate attorneys’ fees under section 2030.


                                     DISPOSITION


       The order is affirmed. The parties are to bear their costs on appeal.




              SEGAL, J.

We concur:




              PERLUSS, P. J.




              ZELON, J.




timeliness of the request for fees on appeal because it is an issue of public importance.”
Nor did Elizabeth argue in her reply brief that the result may have been different because
she requested $170,000 in family court fees and only $82,500 in appellate fees.

                                             10
