IN RE: the Marriage of SANDRA and EDWARD FOSSUM.  _ SANDRA FOSSUM

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Court of Appeal, Second District, California.

IN RE: the Marriage of SANDRA and EDWARD FOSSUM.  _ SANDRA FOSSUM, Respondent, v. EDWARD FOSSUM.  Appellant. .

B214824

Decided: February 24, 2011

CERTIFIED FOR PUBLICATION

ORDER MODIFYING OPINION (Scott M. Gordon, Judge)

IT IS ORDERED that the Concurring and Dissenting opinion by Justice Rothschild, as Acting Presiding Justice, filed on January 28, 2011, be modified in the following particulars:

1. On page 2, last sentence of the first paragraph, delete the text “and irrespective of need and ability to pay” between the words “issue” and “is” so that the sentence now reads:

A mandatory award of attorney fees, imposed regardless of the value of the asset at issue, is a harsh remedy for a violation that is merely technical and wholly innocent, as might often be the case, so it is unlikely the Legislature intended such a result.

2. On page 2, add a footnote 2 at the end of the last sentence of the first paragraph, ending with “result” and add the following text to the footnote:

 2 I note, however, that before imposing a mandatory attorney fees award under subdivision (g) of section 1101, the trial court must “determine that the party has or is reasonably likely to have the ability to pay.” (§ 270.)

This modification does not constitute a change in the judgment.

THE COURT: