IN RE: the Marriage of KELLEY and MARK MONROE.  KELLEY MONROE (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

In this marital dissolution action, appellant, Mark Monroe (Husband), challenges the trial court's award of attorney fees to respondent, Kelley Monroe (Wife).   According to Husband, the trial court awarded fees without any information as to the nature of the legal services provided or the number of hours spent for any particular legal work performed.   Under these circumstances, Husband argues, the fee award was an abuse of discretion.

As discussed below, aside from counsel's unsworn statement that he spent 38 hours on the case at $350 per hour, there is no evidence in the record regarding the nature and extent of counsel's services.   Without such evidence, the court could not properly find that imposing liability for the other spouse's legal fees was appropriate.   Therefore, the order on attorney fees will be reversed and the matter remanded.

BACKGROUND

Wife filed the dissolution action in April 2007.   The parties have one minor child.

The terms of the final judgment were agreed to on the record on September 8, 2008.   These terms included Wife receiving an undivided one-half interest in:  Husband's 401(k) plan;  a Raymond James Alliance Fund;  and the cash value of the current life insurance policy.   Wife was also to receive an $80,000 equalizing payment, which would, when tendered, terminate the court's jurisdiction to award further spousal support.   Husband was to make this payment and distribute this property to Wife by November 7, 2008.

However, Husband did not tender the equalizing payment until December 16, 2008, and judgment was not entered until December 29, 2008.   The remaining items were not distributed by Husband until well into the next year.

In April 2009, Husband moved to modify child visitation and support.   Wife filed a response and requested that Husband pay her attorney fees and the fees for the minor's counsel.   Thereafter, Wife filed a motion seeking to enforce the judgment.   She also requested spousal support arrears, proof that Husband had not made withdrawals from the items still to be divided, interest on the equalizing payment and the reappointment of the minor's counsel.   The court reappointed the minor's counsel on May 26, 2009, and each party was ordered to pay $300 towards his fees.

Following various continuances, Wife's motion was heard on January 11, 2010.   By that time, Wife had received a check for approximately $5,700, representing one-half of the cash value of the life insurance policy and $7,775, representing one-half of the Raymond James Alliance fund.   Husband dropped his child visitation and support modification motion.

During this hearing, Wife's counsel stated that Wife had incurred almost $14,000 in attorney fees and costs.   In response, Husband's counsel noted that Wife's counsel had not provided a statement or declaration of what services were provided, the number of hours spent for any particular service, or any other information that would be required to determine whether such fees were reasonable and therefore he could not address the amount.

Thereafter, Wife's counsel made an offer of proof that he had put 38 hours into the case and his rate is $350 per hour.   Wife's counsel noted that he had made 10 court appearances and issued several subpoenas to Husband.   Wife's counsel further stated that costs were incurred in the amounts of $300 to the minor's counsel and $40 for court costs.   However, Wife's counsel did not submit any supporting evidence.

The court ordered Husband to pay various amounts in interest to Wife that accrued due to his delay in distributing Wife's share of the assets in question and in making the equalizing payment.   In ruling on the issues of attorney fees, costs and sanctions, the court stated that Husband's conduct was “improper to say the least.  [Husband] repeatedly delayed providing the court ordered documents which resulted in substantial losses to [Wife] in attorney fees expended.”   The court then ordered Husband to pay Wife “as and for attorney fees and costs the sum [of] $10,000.”   The court further ordered Husband to pay an additional $1,500 in fees to the minor's counsel.

DISCUSSION

“A motion for attorney fees in a marital dissolution action is left to the sound discretion of the trial court and will not be overturned absent an abuse of that discretion.”  (In re Marriage of Huntington (1992) 10 Cal.App.4th 1513, 1523.)   However, the court's decision must reflect a consideration of the appropriate factors.  (In re Marriage of Hatch (1985) 169 Cal.App.3d 1213, 1219.)

Although the trial court may rely on its own experience and knowledge, the court must be informed of the extent and nature of the services rendered.   (In re Marriage of Cueva (1978) 86 Cal.App.3d 290, 300.)   The absence of such evidence hampers the trial court's ability to make fact findings.  (In re Marriage of Duris & Urbany (2011) 193 Cal.App.4th 510, 515.)   The court cannot award fees based on speculation or on opposing counsel's unsworn statements.  “ ‘Without ascertaining whether or at what hourly rate the work for which reimbursement was sought was actually done, much less that the work was “reasonably necessary” ․, the trial court could not properly find that imposing’ liability for the other spouse's legal fees was appropriate.”   (Ibid.)

Here, the supporting evidence for the $10,000 attorney fee award consisted of Wife's counsel's unsworn statement that he spent 38 hours at $350 per hour.   However, there is no evidence of what services were actually performed or the number of hours spent for any particular legal work.   The time spent may have been unnecessary and unproductive or disproportionate to the result sought to be achieved.  (Cf. In re Marriage of Cueva, supra, 86 Cal.App.3d at p. 302.)   Moreover, the hours may have had no relationship to the motion at issue.   Thus, the court did not have sufficient information to inquire into the reasonableness of Wife's attorney fees.   Under these circumstances, ordering Husband to pay Wife's attorney fees was an abuse of discretion.  “Neither the attorney for a party to a dissolution action nor the attorney's client is entitled to recover, from the opposing spouse, a contributive share of whatever fees the attorney chooses to charge.”  (In re Marriage of Keech (1999) 75 Cal.App.4th 860, 870.)

Similarly, the trial court had no facts to support ordering Husband to pay an additional $1,500 to the minor's counsel.   Husband and Wife each paid the minor's counsel $300 as ordered by the court.   There is no indication in the record that the minor's counsel either requested or earned any additional fee.   Accordingly, the trial court abused its discretion in making that order.

DISPOSITION

The orders on attorney fees are reversed and the matter is remanded to the trial court for further proceedings.   No costs on appeal are awarded.

LEVY, Acting P.J.

WE CONCUR:

CORNELL, J.

FRANSON, J.