USA – WARD – 1992

In re Marriage of Ward (Cal.App. 4 Dist 1 Div 1992)3 Cal.App.4th 618 [4 Cal.Rptr.2d 365]


James Michael Ward, in pro. per., for Appellant.

Kate Yavenditti for Respondent. [* page 621]


WORK, Acting P. J. –

James Michael Ward appeals an order awarding attorney fees and
costs to Emily Ward Hayes’s pro bono counsel, payable to the San
Diego Volunteer Lawyer Program (SDVLP). He essentially contends
the trial court abused its discretion in awarding attorney fees,
because representation was provided by SDVLP at no charge to Hayes
and, in any event, the award was inappropriate and
disproportionate. As we shall explain, the award was properly
made and amply supported by the record. Accordingly, we affirm
the order and direct the trial court to determine what award SDVLP
is entitled to for reasonable attorney fees incurred on appeal.

Factual and Procedural Background

In March 1989, SDVLP first assisted Hayes in connection with a
small claims appeal regarding certain medical, psychological and
other expenses and attorney fees incurred on behalf of the
parties’ minor child, Gerrit, while a ward of the juvenile court.
FN1 Upon reviewing this matter, SDVLP discovered Hayes was not
receiving any child support from Ward, her ex-husband, nor was
there any child support order. Consequently, SDVLP filed a child
support action which resulted in a stipulated order dated June 30,
1989, requiring Ward to pay child support in the sum of $535 per
month, commencing July 1, 1989. The parties’ stipulation was
based upon Hayes’s gross monthly income from disability of $788
per month and Ward’s claimed net monthly disposable income of
$3,029. Regarding the small claims appeal, Hayes was ordered to
reimburse Ward $916 for Gerrit’s attorney fees in the juvenile
court proceedings and various medical and psychological costs
incurred in connection with those proceedings. The parties were
ordered to participate in extended mediation/evaluation counseling
with Dr. Ruth Roth regarding custody and visitation, the cost of
which would be borne by Ward. The allocation of medical expenses
incurred by both parties on behalf of Gerrit was reserved for
further hearing. [* page 622]

When Ward failed to pay child support timely, Hayes filed an order
to show cause re contempt. That hearing was scheduled for August
21, but was taken off calendar when Ward avoided service. On
August 10, Ward’s counsel forwarded the July child support.
However, on September 11, faced with a reduction of nearly 50
percent of her disability income, new evidence regarding Ward’s
accurate income and his failure to pay support, Hayes filed
another order to show cause to modify child support accompanied by
requests for security for support, attorney fees and reimbursement
of medical expenses. Hayes encountered numerous delays regarding
these requests, including several court appearances that were
continued; a recalcitrant Ward who refused at his deposition to
answer any questions pertaining to his financial status before
June 30; difficulty in serving and apparent avoidance of service
by Ward; his failure to pay August child support until November
22, when he belatedly sent medical information required by the
June 30th order to be produced in 10 days; an October 11 hearing
regarding Hayes’s request for service on Ward’s counsel; Ward’s
request for a continuance of his deposition which was granted; and
Ward’s refusal to continue Hayes’s judgment debtor examination,
which was taken off calendar when Hayes’s counsel appeared and
informed the court she had filed a bankruptcy petition.

On January 26, 1990, the trial court increased child support to
$650 per month, beginning December 1, 1989, based on a finding
Hayes’s and Ward’s respective incomes were $500 and approximately
$3,200. Ward was further ordered to pay arrearages in child
support within 90 days from the date of the order; to obtain and
maintain a life insurance policy on his life at a face value
amount of $70,000, naming Gerrit as primary irrevocable
beneficiary; to pay for all his orthodontic care; and to pay SDVLP
$3,000 as attorney fees and costs, payable at a rate of $100 per
month commencing March 1, 1990, and payable on the first of each
month thereafter until paid in full. The order specifically
provided that if any payments become in arrears, the entire sum in
attorney fees and costs is immediately due and payable. FN2 On
March 22, the court modified its order on Ward’s motion for
reconsideration to require him to pay Hayes $600 per month for
child support, commencing December 1, 1989, and payable for eight
months, then increasing to $650 per month on August 1, 1990. [*
page 623]

Legal Service Organizations Providing Pro Bono Representation Are
Entitled to Receive Attorney Fee Awards

SDVLP, a nonprofit organization providing indigents legal services
without a fee, represented Hayes in these domestic disputes.
SDVLP is funded from federal and state grants, charitable
organizations, independent fund raising and court-awarded attorney
fees. Contrary to Ward’s assertion SDVLP is not entitled to
receive court-awarded attorney fees because representation is
provided to their clientele free of charge, federal and state
precedent establishes legal service organizations, such as SDVLP,
are entitled to receive attorney fee awards.

Under Civil Code FN3 section 4370, “[t]he purpose of the award is
to provide one of the parties, if necessary, with an amount
adequate to properly litigate the controversy.” (In re Marriage of
Sullivan (1984) 37 Cal.3d 762, 768 [209 Cal.Rptr. 354, 691 P.2d
1020]; In re Marriage of Aufmuth (1979) 89 Cal.App.3d 446, 466
[152 Cal.Rptr. 668], disapproved on other grounds in In re
Marriage of Lucas (1980) 27 Cal.3d 808, 815 [166 Cal.Rptr. 853,
614 P.2d 285]; In re Marriage of Janssen (1975) 48 Cal.App.3d 425,
428 [121 Cal.Rptr. 701]; In re Marriage of Mulhern (1973) 29
Cal.App.3d 988, 996 [106 Cal.Rptr. 78].) Necessarily intertwined
within this statutory design is the legislative intent of
promoting access to the courts and providing adequate legal
representation for those in need, primary cornerstones to the
concept of fundamental fairness under the law. (In re Marriage of
Swink (Colo.Ct.App. 1991) 807 P.2d 1245, 1247.) Indeed, within
the family law context, “ready and available access to legal
representation … [promotes] the amicable settlement of
dissolution and custody disputes, discourage[s] unfair settlements
prompted by unequal bargaining power of the litigants, and
afford[s] a necessary benefit to the litigants, their children,
and to society.” (Ibid.; see Benavides v. Benavides (1987) 11
Conn.App. 150 [526 A.2d 536, 538]; In re Marriage of Gaddis
(Mo.Ct.App. 1982) 632 S.W.2d 326, 328-329; Ferrigno v. Ferrigno
(1971) 115 N.J.Super. 283 [279 A.2d 141, 142].)

Ward asserts Hayes has failed to show the need for an award in
order to finance her litigation, given that she was not required
to pay her counsel for representation or costs incurred on her
behalf. Ward’s argument misses the mark. The concept of awarding
“reasonably necessary” fees is designed to insure each party has
equal access to legal representation in order to preserve all of
his or her rights. (In re Marriage of Green (1989) 213 Cal.App.3d
14, 27 [261 Cal.Rptr. 294]; In re Marriage of Barnert (1978) 85
Cal.App.3d 413, 428 [149 Cal.Rptr. 616].) Consequently, the fatal
flaw in [* page 624] Ward’s reasoning is that that degree of need
which left Hayes at the doorstep of SDVLP does not disappear by
the mere fact she is provided pro bono representation by the
partially publicly funded legal entity, but rather transcends to
the need of that entity for an appropriate fee award so that it
can make available similar legal services to other needy litigants
in domestic affair matters. (See In re Marriage of Swink, supra,
807 P.2d at p. 1248.)

Given “the economic realities of legal representation in these
days and the maturing recognition of the morality and the social
utility of legal assistance for those financially unable to retain
counsel” (In re Marriage of Gaddis, supra, 632 S.W.2d at p. 328),
the cited public policy considerations underlying the award of
fees justify such shifting without regard to whether the party
originally assumed the financial burden of representation and thus
whether the services are provided by a publicly funded legal
services organization or a privately funded law firm. In fact, an
award of fees to a nonprofit legal services organization providing
pro bono representation promotes the enforcement of legal
obligations as much as an award to privately obtained counsel.
Finite financial and manpower resources force such legal services
organizations to ration their limited resources. Thus, by
recovering fees, they are able to expand their indigent services.
(See Shadis v. Beal (3d Cir. 1982) 685 F.2d 824, 830; Dennis v.
Chang (9th Cir. 1980) 611 F.2d 1302, 1306.) FN4 Consequently, the
award of attorney fees to legal services organizations not only
promotes the continuation of work on a particular client’s case,
but also permits the use of those funds with other resources to
provide legal representation for other indigents. Indeed, given
their existence, regardless whether publicly funded, their
clients, no less than those of private counsel, “should be
entitled to the leverage and protection which legislatures and
courts provide through the award of attorney’s fees in certain
kinds of cases. In order to have the same force behind a threat
to take legal action, a legal aid client should stand on the same
basis as does a client with a private attorney.” (Note, supra, 87
Harv.L.Rev. at p. 425.)

Specifically, within the family law context, indigents are often
represented by legal services counsel.

“It would be unreasonable to allow a losing party in a family
relations matter to reap the benefits of free representation to
the other party. A party [* page 625] should not be encouraged to
litigate under the assumption that no counsel fee will be awarded
in favor of the indigent party represented by public legal
services; … ‘Put in another way, the public should be relieved
from the financial burden of obtaining an indigent plaintiff’s
divorce or successfully defending against a husband’s complaint,
to the extent that the husband is able to pay all or part of her
attorney’s fees. The taxpayer has an interest in recovering where
possible a portion of the costs in these situations.’ [Citation.]

“An award of counsel fees that does not discriminate against
nonprofit legal service entities will encourage nonprofit counsel
to expend its resources in the representation of those clients who
are unable to afford private counsel in disputed child custody and
child support enforcement litigation. The purposes of such acts
as the Uniform Child Custody Jurisdiction Act … are advanced and
are made more available to the poor where there is an expectancy
that the nonprofit legal services will recoup at least part of its
resources through an award of counsel fees to its client.
Furthermore, a realization that the opposing party, although poor,
has access to an attorney and that an attorney’s fee may be
awarded deters noncompliance with the law and encourages
settlements.” (Benavides v. Benavides, supra, 526 A.2d at p. 538,
quoting Ferrigno v. Ferrigno, supra, 279 A.2d at p. 142.)

Granted, the genesis of this rule of treating publicly-funded
legal services organizations and privately funded firms alike in
awarding attorney fees arises from awards made pursuant to the
Civil Rights Attorney’s Fees Awards Act of 1976, 42 United States
Code, section 1988, various nonfamily contexts involving the
private attorney general theory, and in other statutory
nonmatrimonial contexts (see generally those examples set forth in
Spoto v. McCarroll (1991) 250 N.J.Super. 66 [593 A.2d 375,
377-378]; Benavides v. Benavides, supra, 526 A.2d at pp. 537-538;
Thompson v. Thompson (Mont. 1981) 630 P.2d 243, 244). However,
the vast majority of other jurisdictions whose courts have
addressed this issue have concluded “the award of counsel fees to
the prevailing party is proper even when that party is represented
without fee by a nonprofit legal services organization.”
(Benavides v. Benavides, supra, 526 A.2d at p. 537; accord, Spoto
v. McCarroll, supra, 593 A.2d at pp. 378-379; Martin v. Tate (D.C.
1985) 492 A.2d 270, 274; In re Marriage of Brockett (1984) 130
Ill.App.3d 499 [474 N.E.2d 754, 756]; In re Marriage of Gaddis,
supra, 632 S.W.2d at pp. 328-329; Butler v. Butler
(Fla.Dist.Ct.App. 1979) 376 So.2d 287, 287; Love v. Love [* page
626] (Fla.Dist.Ct.App. 1979) 370 So.2d 1231, 1231; Ferrigno v.
Ferrigno, supra, 279 A.2d at p. 142; but see contra Thompson v.
Thompson, supra, 630 P.2d at p. 244; In re Marriage of Magnuson
(1987) 156 Ill.App.3d 691 [510 N.E.2d 437, 443-444].) We agree
with the majority of jurisdictions finding there exists no reason
to distinguish between publicly funded legal services
organizations and privately funded legal entities in awarding
attorney fees in matrimonial matters. In fact, the rationale
underlying the award of fees in civil rights matters “of providing
a means to pursue civil rights enforcement litigation, while not
directly applicable in the matrimonial context, provides support
for an award in this case. That is, it indirectly provides a
means for litigants to actively pursue their rights in matters of
custody and support, just as an award pursuant to the Civil Rights
Act encourages individuals to pursue enforcement of their civil
rights. The award of fees to legal services offices promotes this
goal as much as an award to privately retained counsel. Moreover,
it enhances the capabilities of legal services organizations,
which have very limited resources to begin with, in representing
indigent litigants in these endeavors.” (Spoto v. McCarroll,
supra, 593 A.2d at p. 379.)

SDVLP persuasively argues the federal and state governments have
made the establishment and collection of child support orders a
priority, recognizing the failure of absent parents to support
children constitutes one of the major causes of poverty in
America. The primary representation SDVLP provides for indigent
parents in family law proceedings involves issues of child
custody, visitation and support. By representing these parents in
these matters, SDVLP confers not only a benefit on the particular
family unit represented, but also society in general by promoting
the protection and support of minor children. Presumably,
obtaining and enforcing appropriate child support awards may well
provide the financial differential to enable a custodial parent
and child to cast aside reliance on public assistance.

In summary, statutory fee awards to entities like SDVLP promote
the underlying public policy of increasing the availability of
legal services to parties who might not otherwise be able to
obtain counsel.

It guarantees fair enforcement of the law, while replenishing
exhausted funds enabling continued representation of the indigent
in greater numbers. Moreover, awarding attorney fees to legal
services organizations avoids a potential windfall for those
parties in family law matters against whom fees would be ordered
if the other party had private counsel based upon the provisions
of sections 4370, 4370.5 and 4370.6. There appears to be no
rational reason for advancing differential treatment, because such
treatment would only benefit the more affluent parent and impose
greater hardship upon the indigent. [* page 627]

Finally, neither sections 4370 FN5 and 4370.5 FN6 nor case
precedent require a party to establish any underlying private
obligation to pay attorney fees in order to obtain an award for
such fees. (Cf. Benavides v. Benavides, supra, 526 A.2d at p.
538; In re Marriage of Brockett, supra, 474 N.E.2d at p. 756.)
Indeed, the sections make no distinction between parties who are
represented by private counsel for a fee or those qualified by
reason of indigency for representation by a legal services
organizations or a pro bono attorney without a fee.

The Trial Court Did Not Abuse Its Discretion in Awarding SDVLP the
Challenged Fees

Section 4370 authorizes the court in its discretion to award
attorney fees and costs reasonably necessary to maintain or defend
any dissolution or related proceeding. As already indicated,
“[t]he purpose of the award is to provide one of the parties, if
necessary, with an amount adequate to properly litigate the
controversy.” (In re Marriage of Sullivan, supra, 37 Cal.3d at p.
768.) Section 4370.5 was enacted in 1985 to supplement the general
authorization for fee awards under section 4370 by originally
specifying two primary factors for consideration in making such an
award of (1) need, so as to enable each party to have sufficient
financial resources to adequately present his/her case, and (2)
the conduct of the parties, within the context of furthering or
frustrating the policy of the law promoting settlement of
litigation. (In re Marriage of Hublou (1991) 231 Cal.App.3d 956,
962 [282 Cal.Rptr. 695].) Among the various factors to be
considered by a court [* page 628] affixing reasonable attorney
fees are ” ‘the nature of the litigation, its difficulty, the
amount involved, the skill required and the skill employed in
handling the litigation, the attention given, the success of the
attorney’s efforts, his learning, his age, and his experience in
the particular type of work demanded [citation]; the intricacies
and importance of the litigation, the labor and the necessity for
skilled legal training and ability in trying the cause, and the
time consumed. [Citations.]’ ” (In re Marriage of Cueva (1978)
86 Cal.App.3d 290, 296 [149 Cal.Rptr. 918], quoting Berry v.
Chaplin (1946) 74 Cal.App.2d 652, 679 [169 P.2d 442].) Finally,
the court has broad discretion in awarding attorney fees and costs
in dissolution proceedings. Its determination will not be
disturbed on appeal absent a clear showing of an abuse of
discretion. (In re Marriage of Sullivan, supra, 37 Cal.3d at p.
768; In re Marriage of Czapar (1991) 232 Cal.App.3d 1308, 1318
[284 Cal.Rptr. 41].) ” ‘[T]he trial court’s order will be
overturned only if, considering all the evidence viewed most
favorably in support of its order, no judge could reasonably make
the order made. [Citations.]’ ” (In re Marriage of Sullivan,
supra, 37 Cal.3d at p. 769, quoting In re Marriage of Cueva,
supra, 86 Cal.App.3d at p. 296.)

Here, the record amply supports the trial court’s exercise of
discretion in awarding SDVLP $3,000 in attorney fees. The trial
judge, a former experienced family law practitioner, reviewed the
entire record before awarding $3,000 in fees and costs. At the
time of the January 26, 1991, hearing, Hayes’s counsel estimated
approximately 32 hours had been dedicated to this case. Her
declaration supporting the request for attorney fees summarizes
the substantial work done on behalf of Hayes, much of which was
required only by Ward’s less than cooperative conduct. In
addition to the fees, the cost for attempted services on Ward was
$136.50, the transcript cost was $50.40, and the deposition cost
of Ward was $237.50. When confronted with the extent and nature
of the services rendered, the trial court may rely on its own
experience and knowledge in evaluating their reasonable value.
(In re Marriage of Cueva, supra, 86 Cal.App.3d at p. 300.) On
this record, Ward has failed to establish a clear abuse of
discretion in making this eminently reasonable award. FN7

Finally, Ward’s assertions the award is disproportionate because
SDVLP only obtained a $65 increase in support provided in the
stipulated support order and the motion for security for child
support was denied in its entirety, are misleading and erroneous.
Preliminarily, the fee award encompassed [* page 629] extensive
SDVLP representation services from March 1989. Secondly, not only
did Hayes’s counsel obtain the original, stipulated child support
order, but also security for the child support by the court’s
order that Ward provide and maintain life insurance – an existing
order ignored by Ward. In addition, SDVLP also obtained orders
increasing child support to $650 on August 1, 1990, requiring
payment of child support arrearages and establishing Ward’s
obligation to pay for medical insurance and uncovered medical,
dental, orthodontic and psychological expenses. FN8

Supported by the same rationale underlying the award for attorney
fees to SDVLP at the trial level, SDVLP is entitled to reasonable
attorney fees incurred in defending Ward’s appeal challenging
Hayes’s entitlement to attorney fees payable to it. Under these
circumstances, an award of fees on appeal is warranted if (1)
Hayes can show a need for the award; (2) Ward has the ability to
pay; and, (3) the appellate response was made in good faith and
reasonable in character. (In re Marriage of Joseph (1990) 217
Cal.App.3d 1277, 1290-1291 [266 Cal.Rptr. 548]; see also, In re
Marriage of Martin (1991) 229 Cal.App.3d 1196, 1201 [280 Cal.Rptr.
565].) SDVLP was justified on behalf of Hayes in defending against
Ward’s appeal and, in fact, has prevailed. Ward has never
asserted inability to pay and Hayes’s need which led her to the
free services of SDVLP presumably remains unchanged. However,
although this court has the power to render such an award, the
trial court can better evaluate these latter factors in
determining an appropriate amount to be awarded SDVLP for fees on
appeal. (In re Marriage of Martin, supra, 229 Cal.App.3d at p.
1201; In re Marriage of Joseph, supra, 217 Cal.App.3d at p. 1291;
In re Marriage of Davis (1983) 141 Cal.App.3d 71, 78 [190
Cal.Rptr. 104].)


The order is affirmed. Upon a costs memorandum or motion being
filed by SDVLP, the trial court shall determine what award SDVLP
is entitled to for [* page 630] reasonable attorney fees incurred
on appeal. SDVLP will recover costs on appeal.

Huffman, J., and Froehlich, J., concurred. [* page 631]

FOOTNOTE 1. In March 1986, juvenile court proceedings were filed
concerning Gerrit, who had been in the custody of Ward. Gerrit
was removed from Ward’s custody, placed in foster care for several
months, and placed with Hayes in July 1986, in whose care and
custody he has been ever since.

In federal court, Ward also sued Hayes, as well as the department
of social services and various other officers and persons
connected with the juvenile court proceedings which had resulted
in his losing custody of Gerrit. SDVLP provided pro bono
representation during the federal lawsuit which was later
dismissed by Ward.

FOOTNOTE 2. The order also provided that each party shall pay
one-half of psychiatric and/or psychological expenses incurred on
behalf of Gerrit; Ward to pay all medical expenses incurred on
behalf of Gerrit not covered by insurance, including deductibles
and copayments, within 30 days of presentation by Hayes or the
health care provider; Hayes inform Ward of any medical expenses so
incurred unless the expenses are incurred in emergency situations;
Ward’s obligation to pay Hayes for certain psychological expenses
be off-set by the obligations she owed him regarding the prior
court order pertaining to legal fees for Gerrit in juvenile court.

FOOTNOTE 3. All statutory references are to the Civil Code unless
otherwise specified.

FOOTNOTE 4. “Fee incentives to legal aid offices are essential to
enable legal services organizations to provide more than
individual, routine legal services for poor litigants. To a great
extent, legal services organizations must allocate limited
resources among various possible clients. Of necessity, the
potential for fee recovery will be one of the factors considered
in the allocation and use of resources for the maximum benefit of
the poor.” (Shadis v. Beal, supra, 685 F.2d at pp. 830-831; see
Note, Awards of Attorney’s Fees to Legal Aid Offices (1973) 87
Harv.L.Rev. 411, 414.)

FOOTNOTE 5. Section 4370 generally provides in subdivision (a)
that the court within its discretion may order any party, except a
governmental entity, to pay such amounts as “may be reasonably
necessary for the cost of maintaining or defending the proceeding
and for attorney’s fees.” Subdivision (c) currently provides:
“Notwithstanding any other provision of law, absent good cause to
the contrary, the court, upon (1) determining an ability to pay
and (2) consideration of the respective incomes and needs of the
parties in order to ensure that each party has access to legal
representation to preserve all of his or her rights, shall award
reasonable attorney’s fees to a custodial … in any action to
enforce an existing order for child support.”

FOOTNOTE 6. Section 4370.5 currently and pertinently provides:

“(a) The court may make an award of attorneys’ fees and costs
under this chapter where the making of an award, and the amount of
the award, is just and reasonable under the relative circumstances
of the respective parties.

“(b) In determining what is just and reasonable under the relative
circumstances, 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 adequately present his or
her case, taking into consideration to the extent relevant to the
circumstances of the respective parties described in subdivision
(a) of Section 4801. The fact that the party requesting an award
of attorneys’ fees and costs has the resources from which he or
she could pay his or her own attorneys’ fees and costs is not
itself a bar to an order that the other party pay part, or all of
the fees and costs requested. Financial resources are only one
factor for the court to consider in determining how to apportion
the overall cost of the litigation equitably between the parties
under their relative circumstances.”

FOOTNOTE 7. We note former section 4370, subdivision (c)
authorized an award of attorney fees for child support enforcement
based solely on the other party’s ability to pay. Here, Ward
never argued he did not have the ability to pay reasonable
attorney fees. Rather, his counsel argued she was not entitled to
fees because she was not responsible for them.

FOOTNOTE 8. Moreover, a fees award to a legal services
organization should be determined at the reasonable market rate.
(Serrano v. Unruh (1982) 32 Cal.3d 621, 642-643 [186 Cal.Rptr.
754, 652 P.2d 985].) “The prevailing federal view is that
statutorily authorized fees are computed on the basis of the
reasonable market value of the services rendered, without regard
to the fact that counsel are employed by an organization funded by
public or foundational monies. Whether it goes to private or
‘public’ counsel, an award serves to prevent worthy claimants from
being silenced or stifled because of a lack of legal resources.”
(Id. at p. 643, fn. & citation omitted.)