Filed 10/20/15 Marriage of Gilbert and Magana CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


In re the Marriage of JOHN GILBERT and
MARIA TERESA MAGANA.

JOHN GILBERT,                                                        A143313

         Appellant,                                                  (San Mateo County
v.                                                                   Super. Ct. No. FAM0109022)
MARIA TERESA MAGANA,
         Respondent.


         At the end of extended proceedings regarding child support payments, respondent
Maria Teresa Magana requested separate awards of attorney fees from her former
husband, appellant John Gilbert, under Family Code sections 271 and 2030.1 In
connection with the request under section 2030, Magana submitted evidence that during
the latter stages of the proceeding, she was unemployed, while Gilbert was paid a
significant salary. The family court granted the request for fees under section 2030, but it
denied the request for section 271 sanctions. Finding the award supported by substantial
evidence, we affirm.
                                               I. BACKGROUND
         The parties separated after 20 years of marriage in 2010, and their divorce became
final in December 2011. In April 2014, Magana filed a motion seeking an award of


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             All statutory references are to the Family Code.
attorney fees under section 2030 in connection with proceedings concerning the
modification of Gilbert’s child support obligations. At the time, Magana was recovering
from two major surgeries and had been laid off from her job as a kindergarten teacher.
Gilbert’s income in the prior year had been over $160,000. Based on this disparity, the
motion sought $1,500 in connection with proceedings that had occurred to that point. At
a hearing prior to the filing of the motion, in February 2014, the family court had
suggested informally that Gilbert pay section 2030 attorney fees of $1,650 to Magana to
avoid the need for a motion, but Gilbert had insisted Magana make a formal request.
       When the parties appeared for a hearing on the attorney fees motion and other
matters in July 2014, Magana’s attorney, Michael Lowy, made an oral request for
attorney fees under section 271, which permits the award of fees as a sanction against an
uncooperative party. (Id., subd. (a).) As Lowy explained, “we’ve spent a lot of money
unnecessarily because of the failure to . . . meet and confer [in] good faith.” The court
declined to rule on the fee request and directed Lowy to submit a declaration regarding
the allegedly uncooperative conduct and his billing rate and time expended.
       Lowy’s declaration, filed in July 2014, updated Magana’s income information,
relevant to the request for fees under section 2030, and detailed the history of the
proceedings. By that time, Magana had obtained a new teaching job, anticipating an
annual salary of $109,000. Gilbert’s annual salary was $143,500, but he was also eligible
for a discretionary bonus, which had been $22,000 in the prior calendar year. The
declaration acknowledged that Magana was a one-seventh owner of family agricultural
property in El Salvador, but it said she received no income from the property. According
to Lowy, Magana had been forced to incur $20,000 in attorney fees in connection with
the current child support proceedings. He believed Gilbert’s inattentive and
uncooperative conduct while representing himself in the litigation had increased
Magana’s expenses. The declaration concluded by requesting $6,118.75 in attorney fees
actually incurred and an additional $2,500 in sanctions. Extensive documentation
accompanied the declaration.



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       In response, Gilbert did not dispute the disparity in the parties’ salaries, although
he pointed out his bonus was variable, depending upon business success. Gilbert
contended that Magana’s property in El Salvador, contrary to her claim, provided her an
annual income of $27,000, but the document cited by Gilbert to support his contention
makes no mention of income from the property. He contended that Magana had
prolonged the original divorce proceedings unnecessarily, leaving him unable to afford
representation once the divorce had been finalized, and had been uncooperative during
the child support dispute by delaying disclosures about her income and providing
incomplete disclosures. Contrary to Lowy’s account, Gilbert contended he had been
“extremely cooperative and responsive regarding all matters related to this case, and I
have been working very hard to bring all outstanding issues to closure.”
       Without a further hearing, the family court entered a written order granting
Magana the $6,118.75 in fees she had requested under section 2030, but denying the
$2,500 in additional sanctions requested. The court’s order, however, stated that the
$6,118.75 in fees had been awarded under section 271. Other than noting the requested
fees were “reasonable,” the order made no factual findings. The family court later
modified its order to indicate the award of fees was made under section 2030, rather than
section 271. Although there is no copy of the amended order in the appellate record,
Magana states the amended order changed the reference to section 271 to section 2030,
without otherwise altering the text of the order. Gilbert does not contend otherwise. We
therefore proceed on the assumption the family court intended its award to be rendered
pursuant to section 2030.
                                      II. DISCUSSION
       “Section 2030 provides for the making of an order in a dissolution proceeding that
one party pay for the other party’s attorney fees and costs pendente lite. [Citation.] The
statute reflects the public policy of providing, ‘ “ ‘at the outset of litigation, consistent
with the financial circumstances of the parties, a parity between spouses in their ability to
obtain effective legal representation.’ ” [Citation.]’ [Citation.] The purpose ‘is not the
redistribution of money from the greater income party to the lesser income party,’ but


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rather ‘parity: a fair hearing with two sides equally represented.’ ” (In re Marriage of
Sharples (2014) 223 Cal.App.4th 160, 164 (Sharples).) “The idea is that both sides
should have the opportunity to retain counsel, not just (as is usually the case) only the
party with greater financial strength.” (Alan S. v. Superior Court (2009) 172 Cal.App.4th
238, 251.)
       “In ruling on a request for fees and costs under section 2030, the court is guided
by section 2032, which provides that an award of fees and costs under section 2030 may
be made ‘where the making of the award, and the amount of the award, are just and
reasonable under the relative circumstances of the respective parties.’ [Citations.] In
determining what is just and reasonable, ‘the court shall take into consideration the need
for the award to enable each party, to the extent practical, to have sufficient financial
resources to present the party’s case adequately . . . .’ [Citation.] In addition to the
parties’ financial resources, the court may consider the parties’ trial tactics.” (Sharples,
supra, 223 Cal.App.4th at pp. 164–165.) “In assessing one party’s relative ‘need’ and the
other party’s ability to pay, the court may consider all evidence concerning the parties’
current incomes, assets, and abilities, including investment and income-producing
properties.” (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1167.) “ ‘[T]he
family court has considerable latitude in fashioning or denying an attorney fees award
. . . .’ [Citation.] However, the court’s ‘decision must reflect an exercise of discretion
and a consideration of the appropriate factors as set forth in code sections 2030 and
2032.’ ” (Sharples, at p. 165.)
       Consistent with the requirement that the court’s decision must reflect a proper
exercise of discretion, section 2030 contains an express findings requirement: “When a
request for attorney’s fees and costs is made, the court shall make findings on whether an
award of attorney’s fees and costs under this section is appropriate, whether there is a
disparity in access to funds to retain counsel, and whether one party is able to pay for
legal representation of both parties. If the findings demonstrate disparity in access and
ability to pay, the court shall make an order awarding attorney’s fees and costs.” (Id.,
subd. (a)(2).)


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       Gilbert first contends the trial court’s attorney fees award must be reversed
because the court did not make the findings required by section 2030, subdivision (a)(2).
The failure to make findings required by a provision of the Family Code, however, does
not, standing alone, require the reversal of an order rendered pursuant to the statute. The
family court in In re Marriage of Carlsen (1996) 50 Cal.App.4th 212 (Carlsen) at
page 216, for example, allowed various “hardship deductions” from the calculation of a
husband’s net disposable income without making the findings required under
section 4072. The Court of Appeal considered, but rejected, the contention that the
failure to make the findings was “ ‘reversible per se,’ ” explaining, “we are enjoined by
our Constitution from imposing a reversible-per-se rule here. (Cal. Const., art. VI, § 13.)
Unlike statements of decision, the Legislature has not precluded us here from implying
findings. [Citation.] Nor do we have the constitutional due process concerns presented
by the imposition of sanctions [citation], or the need to protect against ‘corrupt’ judicial
interference with the criminal process [citation]. Thus, we determine here if the trial
court’s failure to include express findings was nonprejudicial.” (Carlsen, at p. 218.)
       As Carlsen notes, the state Constitution precludes the reversal of a trial court order
on the basis of “any error as to any matter of procedure” unless the court concludes the
error “resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13.) For purposes of
analysis under the Constitution, the findings required by section 2030 are no different
from those required by section 4072, considered in Carlsen. While we do not mean to
excuse the family court’s failure to make the required findings, that failure is not a basis
for reversing an otherwise valid order under section 2030. An award of attorney fees
under section 2030 cannot be reversed for the failure to make required findings unless
that failure was prejudicial. (See similarly In re Marriage of Hubner (2001)
94 Cal.App.4th 175, 183 [failure to make required findings is “reversible error if the
missing information is not otherwise discernible from the record”].)
       Gilbert argues that the family court should be presumed to have applied an
incorrect standard of law, since at the July hearing the court instructed Lowy to file a
declaration describing Gilbert’s purportedly abusive tactics. Litigation tactics are central


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to an award of fees under section 271, but they are only secondarily relevant to an award
under section 2030.2 A review of the transcript, however, demonstrates the court
instructed Lowy to file the declaration because, at the hearing, he requested for the first
time an award of fees under section 271, in addition to the pending request under
section 2030. The family court’s instruction was therefore wholly appropriate, and there
is no reason to infer the court had confused the legal standards under the two statutes. On
the contrary, by awarding Magana precisely the amount of fees requested under
section 2030, but denying the additional sanction under section 271, the family court
demonstrated its awareness of the difference between the two statutes.
       Gilbert argues, alternatively, that the family court’s award was an abuse of
discretion because the award was not supported by the evidence before the court.
       We find ample evidence to support the award. The primary factor justifying an
award under section 2030 is a material disparity in income between the parties.
Magana’s annual income at the time of the award was $35,000 to $55,000 less than
Gilbert’s. Because the lion’s share of their income would have been needed for
necessities such as housing, food, and taxes, the proportional disparity in disposable
income was even greater. More importantly, at the time most of the attorney fees were
incurred, the disparity in income was much greater, since Magana was unemployed and
supporting herself on disability payments. Further, Gilbert’s income, at between
$140,000 and $160,000, was sufficient to support a conclusion he could afford the $6,000
payment requested by Magana. As a result, the trial court could readily have concluded
that an award under section 2030 was appropriate to level the playing field between the
parties, even without addressing the contentious tactics that, Lowy claimed, had made the
proceedings more expensive for Magana.



       2
        Gilbert incorrectly argues that litigation conduct is entirely irrelevant to an award
under section 2030. On the contrary, such conduct can be considered by the court. (See
Sharples, supra, 223 Cal.App.4th at p. 165 [“In addition to the parties’ financial
resources, the court may consider the parties’ trial tactics.”].)


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       Finally, Gilbert argues that “it is wholly unreasonable” to conclude he could afford
to pay Magana’s attorney fees because he appeared pro se, suggesting “he apparently
could not even afford to bear his own attorney’s fees.” The inference does not follow. If
Gilbert considered himself competent to act as his own attorney, he might have viewed
the retention of counsel an unnecessary expense, rather than an unaffordable one. In the
absence of further evidence, the family court had no basis for drawing any inference from
Gilbert’s decision to appear pro se.
       More importantly, the family court was not required to guess at Gilbert’s ability to
afford counsel, since both parties had submitted income and expense reports. If Gilbert
believed he had extraordinary expenses that made it relatively more difficult for him to
afford attorney fees, despite the disparity in the parties’ incomes, it was his burden to
identify that expense. Although he stated in conclusory fashion the divorce proceedings
had left him unable to afford counsel, he failed to point to anything in his current
economic situation to support such a finding. Accordingly, there was no evidentiary
basis for finding Gilbert unable to afford attorney fees, notwithstanding his decision to
represent himself.
                                   III. DISPOSITION
       The family court’s attorney fee award is affirmed. Magana may recover her costs
on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)




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                                _________________________
                                Margulies, J.


We concur:


_________________________
Humes, P. J.


_________________________
Dondero, J.




A143313


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In re Marriage of Gilbert and Magana




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