In re Marriage of Pollard

California Court of Appeal · Family Law

Family Lawattorney's feesvisitation modificationability to payCivil Code section 4370attorney's feesneedability to pay

Facts

After dissolution, custody of the parties' minor child was awarded to the mother, and the father, who was on welfare and a student, was ordered to pay child support; no spousal support was awarded. The father later sought modification of visitation in propria persona, alleging that the mother and her mother limited him to one hour of visitation per month under restrictive conditions. The mother retained counsel, responded to the request, and asked for attorney's fees and costs. Although visitation was amicably resolved in conciliation court, the superior court ordered the father to pay $200 toward the mother's attorney's fees whenever his income exceeded $500 per month; at the time, his income was $220 per month and both parties were on welfare.

Issue

May a court, under Civil Code section 4370, order one party in a postjudgment visitation modification proceeding to pay the other party's attorney's fees when both parties are on welfare and the record shows no reasonable expectation that the paying party's impecunious condition will improve? Does a purely prospective payment order cure the absence of present ability to pay?

Rule

Under Civil Code section 4370, a court may award reasonably necessary attorney's fees in postjudgment proceedings involving child custody, visitation, or support, even where no spousal support was awarded. But the court must consider both the requesting party's need and the other party's ability to pay; where both parties are legitimately destitute and the record does not establish a reasonable expectation that the obligor's financial condition will improve, imposing attorney's fees on that party is an abuse of discretion, even if payment is deferred prospectively.

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After a dissolution in Sacramento, custody of Mia and Jordan's son remained with Mia. Jordan, acting without counsel, filed a postjudgment motion to expand visitation; Mia hired counsel and requested attorney's fees. The record shows both parents receive public assistance, Jordan earns $260 per month from a work-study program, and nothing in the record suggests his finances are likely to improve soon.

Should the court order Jordan to pay Mia's attorney's fees under the governing rule?

Explanation. Attorney's fees may be awarded in postjudgment custody, visitation, or support matters even if no spousal support was awarded, but the court must consider both the requesting party's need and the other party's ability to pay. Where both parties are legitimately impecunious and the record shows no reasonable expectation that the proposed obligor's finances will improve, imposing fees is an abuse of discretion. (Derived from In re Marriage of Pollard (n.d.).)