Filed 12/10/13 Marriage of Kokoszka CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



In re the Marriage of LINDA M. and JOHN
A. KOKOSZKA.

LINDA M. KOKOSZKA,
                                                                         E056727
         Appellant,
                                                                         (Super.Ct.No. FAMVS1001315)
v.
                                                                         OPINION
JOHN A. KOKOSZKA,

         Respondent.



         APPEAL from the Superior Court of San Bernardino County. Debra Harris,

Judge. Reversed with directions.

         Law Office of Valerie Ross and Valerie Ross for Appellant.

         No appearance for Respondent.


                                                             I

                                                 INTRODUCTION

         This is an appeal of a denial of a request for need-based attorney’s fees in a marital
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dissolution action. (Code Civ. Proc., § 904.1, subd. (a)(10); In re Marriage of Tharp

(2010) 188 Cal.App.4th 1295, 1311.) The standard of review is abuse of discretion. (In

re Marriage of Sullivan (1984) 37 Cal.3d 762, 768-769; In re Marriage of Drake (1997)

53 Cal.App.4th 1139, 1166.)

       The sole issue on appeal is whether the record establishes that the trial court

actually exercised its discretion and considered the statutory factors in denying the

request for attorney’s fees of appellant Linda M. Kokoszka (Linda). Our review of the

record finds no actual exercise of discretion by the family court. We reverse and remand

to allow the family court to exercise its discretion according to statute.

                                              II

                              STATEMENT OF THE CASE

       Linda filed a petition for dissolution in May 2010. Respondent John A. Kokoszka

(John) filed his response in July 2010. The parties have one minor child born in 2009.

Various proceedings occurred in 2010 and 2011.

       On November 23, 2011, Linda filed an income and expense declaration. On

February 3, 2012, Linda filed an order to show cause seeking attorney’s fees and costs,

spousal support, child support, arrears, and an ex parte request for an order shortening

time. Linda’s income and expense declaration showed a monthly income of $3,742.12

and an average monthly income of $3,700.

       On March 12, 2012, John filed his responsive declaration, including his income

and expense declaration. John opposed the motion on the grounds that Linda was not


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entitled to spousal support for a brief marriage or to retroactive child support. John’s

declaration showed a monthly income of $5,384 salary plus $1,200 in commissions or

bonuses—a total of $6,584—and an average monthly income of $5,384 salary, plus an

additional $3,931 in commissions or bonuses—a total of $9,315.

       Linda had paid her attorney $2,200 for fees and costs and owed $1,299.45. The

attorney’s hourly rate is $300. In contrast, John had paid $3,900 in fees and costs and he

still owed $3,344.25.

       The provisions of Family Code sections 2030, 2032, and 76051 provide for an

interim award of attorney’s fees based on need. The court denied Linda’s request for

spousal and child support and for an award of attorney’s fees. In its ruling, the family

court made no mention of the respective incomes of the parties. Instead, the court seemed

to anticipate offsetting any fee award with sanctions by stating, “And my reluctance to

award attorney fees early on in this case is if there’s a need for sanctions and I provide

sanctions then I could order sanctions against a petitioner, and respondent is paying for

the sanctions if the attorney has to, if he has to pay attorney fees.”

                                              III

                                        DISCUSSION

       The family court has broad discretion in ruling on a motion for attorney’s fees and

costs in marital proceedings. The court’s determination will not be disturbed on appeal

absent a clear showing of abuse of discretion – i.e., that no judge could reasonably have

       1   All further statutory references are to the Family Code.

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made the order considering all of the evidence viewed most favorably in support of the

order. (In re Marriage of Sullivan, supra, 37 Cal.3d at pp. 768-769.)

         Section 2030 provides that a court may order one party to pay the attorney’s fees

and costs incurred by the other party in order to assure that each party has access to legal

representation: “(a)(1) In a proceeding for dissolution of marriage, nullity of marriage, or

legal separation of the parties, and in any proceeding subsequent to entry of 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.” The making of the award and the amount of the award must be “just and

reasonable under the relative circumstances of the respective parties.” (§ 2032, subd.

(a).)

         The record must establish that the family court actually exercised its discretion and

considered these statutory factors in exercising its discretion. (In re Marriage of Braud

(1996) 45 Cal.App.4th 797, 827; In re Marriage of Cheriton (2001) 92 Cal.App.4th 269,

315.) It is an abuse of discretion, if the trial court, in issuing its ruling failed to make a

needs-based analysis. (In re Marriage of Tharp, supra, 188 Cal.App.4th at pp. 1312 and

1314.)




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        Here the family court did not make a needs-based analysis. Even if Linda lost her

motion on the merits, John’s income was nearly triple that of Linda’s income. The record

does not establish that the statutory factors were considered by the court in denying

Linda’s request for need-based fees and costs. The family court failed to perform its

official duty and review the relevant evidence. (In re Marriage of Tharp, supra, 188

Cal.App.4th at p. 1314, citing Fletcher v. Superior Court (2002) 100 Cal.App.4th 386,

392.)

                                              IV

                                       DISPOSITION

        In such a case, where the family court has failed to exercise its discretion, we

reverse and remand to the court for a determination of attorney’s fees based on statutory

factors.

        NOT TO BE PUBLISHED IN OFFICIAL REPORTS
                                                                 CODRINGTON
                                                                                            J.

We concur:


HOLLENHORST
          Acting P. J.


MILLER
                           J.




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