A constitutional right to an attorney, unlike in criminal cases do not extend to family law cases. But your inability to pay for an attorney should not impede you from proceeding with child and spousal support, custody, visitation rights and restraining orders. These are important issues that may require you to seek the help of an attorney. Speaking to a family law attorney about whether the opposing party should be ordered to pay for your attorney is time well spent.
DISPARITY AND ABILITY TO PAY ATTORNEY FEES AFTER THE MORTON CASE
Family Code (FC) section 2030, subdivision (a)(2) uses the term “disparity.” This provision specifically states that at a trial court must make a finding on “whether there is a disparity in access to funds to retain counsel.” The common and ordinary meaning of the word “disparity” as referenced in the Launa Morton v. David Morton (27 Cal.App.5th 1025: September 26, 2018), case is inequality (a difference in quantity or quality between two or more things.)
The court is statutorily required to make a finding and the court in Morton failed to comply with the mandatory provision of FC 2030. The wife in Morton also cited the court’s failure to make an ability-to-pay analysis, which is related to another question for which an explicit finding is required. FC 2030 requires the court to make an additional determination if the husband “is able to pay for legal representation for both parties.”
FC 2030, upon the mandatory finding that demonstrate disparity in access and ability to pay, the court SHALL make an order awarding attorney’s fees and costs.” In the Morton case, the appellate court found that the record was sufficient to show that “a disparity in access to funds to retain counsel” exits. The court further reasoned that while both parties have access to funds resulting from the division of the community assets, the husband has access to funds generated by (1) his employment (wife does not work) and (2) his ownership of one-half of Huddleston Crane Services, Inc. (a separate property).
The court explicitly analyzes the sources of various income available for the husband while in contrast, as the appellate court distinguishes, the wife’s access to funds is only limited to her division of community assets. Her income from employment was minimal before she stopped working as a courier and she does not own a revenue generating business. Accordingly, the record compels a finding of a disparity in access to funds for retaining and paying counsel.
Additionally, the court held that the record demonstrates that the husband “is able to pay for legal representation of both parties. The court explained in detail the disparity in the ability to pay for legal representation. In the Morton case, the court established this by noting the disparity in the parties’ wages and salaries and Launa’s lack of rental income or other business income. The court further reasoned, “the fact that Launa holds assets from the division of community property that are sufficient to cover her attorney fees does not negate the existence of the significant disparity in the ability to pay for legal representation. (FC 2032 subdivision (b).) The long-term financial consequences of requiring Launa to liquidate those assets to pay for attorney fees—assets which, in contrast to David, she does not have the means to replenish—must be evaluated in determining the ability to pay.
Thus, the appellate court after finding disparity in access and ability to pay overturned the trial court’s finding of “insignificant disparity” overturned its ruling for lack of sufficient evidentiary support. The record “compels findings that make the award of attorney fees mandatory and remands the case to determine the amount of those fees.”
The court further awarded Launa to recover her costs on appeal pursuant to FC 2030, subdivision (c) which states, the trial court “shall augment or modify the original award for attorney’s fees and costs as may be reasonably for the prosecution….of the proceeding, or any proceeding related thereto, including after any appeal has been concluded.” (See in re Marriage of Schofield (1998) 62 Cal.App.4th.131, 140-141)
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