Opinion
NOT TO BE PUBLISHED
APPEAL from postjudgment orders of the Superior Court No. D00547 of Imperial County, Barrett Foerster, Judge, Poli Flores, Commissioner. Affirmed in part, reversed in part and remanded.
O'ROURKE, J.
In February 2004, in connection with the dissolution of their marriage, Teodula Lira and Joaquin Lira entered into a stipulated judgment in part dividing several parcels of real property. That judgment was incorporated into their final judgment of dissolution. Over four years later, Teodula obtained postjudgment orders (1) finding one of the parcels of property (the subject property) to be an "omitted asset" and ordering Joaquin to pay her one-half the property's value and (2) awarding her and their son, Jerry Lira, attorney fees. Joaquin appeals, contending (1) there was no partially omitted asset within the meaning of Family Code section 2556; (2) Teodula did not meet her burden of proving undue influence for purposes of applying section 2122; (3) the statute of limitations had run on the time for Teodula to file a motion for relief from a judgment; and (4) the family court exceeded its jurisdiction and abused its discretion in ordering Joaquin to pay attorney fees to Teodula and Jerry's attorneys. Teodula raises a host of procedural objections to Joaquin's ability to now challenge these matters on appeal.
All statutory references are to the Family Code unless otherwise indicated. As is customary in family law cases, we refer to the parties by their first names for clarity and intend no disrespect.
We reject Teodula's procedural objections, and conclude the family court erred as a matter of law in ruling the subject property an omitted asset. Accordingly, we reverse that portion of the postjudgment order as well as the postjudgment order awarding Teodula and Jerry attorney fees. We remand the matter for redetermination of Jerry's request for attorney fees against Teodula in connection with his partition cross-complaint.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2000, Teodula petitioned to dissolve her and Joaquin's marriage. Thereafter she filed schedules of assets and debts listing, among other assets, three properties: 1275 E. Highway 98, Calexico, California (consisting of two parcels, Nos. 059-200-42 and 059-200-43); 1297 E. Highway 98, Calexico, California (parcel No. 059-200-31); and 805 Maple Avenue, Holtville, California. She attached copies of the deeds of all three properties as well as "Property Profile[s]" from the County assessor's office. As to the property at 1297 E. Highway 98 (the subject property), the deed and profile showed the record title owners as Joaquin and their son Jerry. Teodula also recorded a lis pendens to which she attached the deed for the subject property, serving it on both Joaquin and Jerry.
Joaquin filed responsive schedules of assets and debts in connection with the dissolution proceeding. He listed and designated the subject property (and the other properties) as community property, and attached property tax bills for the subject property identifying the payors as Joaquin and Jerry. In September 2003, Joaquin listed the subject property as having a value of $236,750 and attached the deed to the subject property showing ownership held by "Joaquin Lopez Lira, a married man as his sole and separate property and Jerry C. Lira... all as joint tenants." Both Teodula and Joaquin were represented by counsel during the dissolution proceedings.
In late 2003 and early 2004, the parties entered into a stipulated judgment prepared by Teodula's attorney, a certified family law specialist. The judgment of dissolution incorporating the stipulation was entered in February 2004. Under the terms of the judgment, Teodula was awarded specified spousal support and 100 percent of Joaquin's pension. It provided for the following property division: Joaquin was awarded parcel No. 059-200-42 of 1275 E. Highway 98 valued at $318,000, and Teodula was awarded parcel No. 059-200-43 of 1275 E. Highway 98 valued at $129,000 as well as the subject property, which was valued at $236,750. The judgment also gave Joaquin a 60-day option to purchase parcel No. 059-200-43 of 1275 E. Highway 98 from Teodula for $129,000. The parties acknowledged that the division was unequal in Joaquin's favor and provided for a $20,000 equalizing payment to Teodula.
More fully, the judgment provides: "Jurisdiction to award spousal support to Joaquin is terminated. The parties acknowledge and stipulate that the court find [sic] that the division of property is unequal in favor of Joaquin in the amount of at least $40,000. This unequal division has the effect of shifting the balance of the hardships and increasing Teodula's need for support as well as Joaquin's ability to pay support. In consideration of the above, commencing the first of the month following entry of Judgment, Joaquin shall pay Teodula $200 per month as and for post-judgment spousal support, and the temporary order for $547 per month spousal support shall expire. On payment of a $20,000 tax-free equalizing payment care of Marcus Family Law Center, PLC, Client Trust Account, spousal support shall be reduced to zero, and jurisdiction to award Teodula further spousal support shall be terminated; this provision is conditional on Joaquin being current on his spousal support, and the division of property as set forth below being fully accomplished (e.g. full amount of bank account cash transferred; title to real property transferred; Teodula receiving the full amount of Joaquin's pension directly from the plan by court order)." (Capitalization omitted.)
In July and August 2007, Teodula filed two proceedings: a motion to quiet title in family court against Joaquin and Jerry along with a request to join Jerry in the family law proceeding, and a verified quiet title complaint in Imperial County Superior Court against Jerry to have him removed from title to the subject property. In a declaration accompanying the motion, Teodula asserted that in 1990, when the property was purchased and granted to Joaquin and Jerry as joint tenants, she thought she had signed papers putting her name on title; that she never consented to transfer her interest in the subject property to Joaquin or consented to Jerry being on title, and at the time she and Joaquin entered into the stipulated judgment of dissolution she understood she was being awarded the entire interest in the subject property. She claimed that in 2006, when she tried to sell the property, she first learned that Jerry was on title. In August 2007, the family court granted Teodula's joinder request and reserved the remaining relief.
In October 2007, Jerry, represented by counsel, moved to quash service of the summons and complaint for lack of subject matter jurisdiction and improper service. The court denied the motion, but granted Teodula leave to amend her complaint to name Joaquin as a defendant. After unsuccessfully moving to strike certain portions of the first amended complaint and recover his attorney fees, Jerry filed an answer and verified cross-complaint against Teodula to quiet title one-half of the subject property to him and partition the fee simple estate to award him a 50 percent interest as a tenant in common.
The matter proceeded in the form of "evidentiary hearings" before a family court commissioner. Jerry's counsel pointed out at the outset (and in a trial brief) that Teodula was attempting to change the marital property division that had been reached in 2002, and that the family court was without jurisdiction to modify a final judgment. Joaquin, who was 80 years old at the time, was present without counsel, and with an interpreter's assistance, he agreed to testify about the property transaction. He testified that he believed the property division was "done." He stated, "Nobody told me that I had to sign papers to her. We just divorce and they were, Okay, it's done. Divorce is done and everything is set. You're going to take one property and she's going to take two properties, and I said okay." He testified that when he purchased the property, they "depend[ed] on the title company and [Teodula] agreed that she wasn't going to be the owner of it." He did not understand why Teodula's attorney, who was also representing her in the quiet title action, did not tell him there was an issue concerning the property; as far as he knew he was "free." Nevertheless, he testified he and Teodula did not decide what to divide, the attorneys did, and they permitted him to keep the property on which he was living and give the other two to Teodula. Joaquin agreed that Teodula received two pieces of property in the divorce; that it was "her property because that's why she wanted to stay there."
Those hearings took place on March 25, 2008, April 1, 2008, May 15, 2008, and June 26, 2008.
On July 22, 2008, the court commissioner issued its order and judgment. It found the February 2004 judgment created a tenancy in common between Teodula and Jerry; that Teodula thought she was receiving full ownership of the property; that Joaquin operated under a legally flawed assumption that he had implied authority to transfer Teodula's portion of the property to Jerry in 1990 and thought he could transfer the entire amount back to Teodula as part of their divorce judgment. It ordered a partition of the subject property, which it declared was held as a tenancy in common by Teodula and Jerry, each with a 50 percent interest. The court stated: "Further, the court will hereby appoint a referee to divide said property under Code of Civil Procedure section 873.010." It further ruled the February 2004 judgment failed to resolve Joaquin and Teodula's interests in the subject property; that "Joaquin breached the basic principals [sic] of his fiduciary marital duty by keeping his spouse ignorant of his business dealings with community assets" and there was no evidence that Joaquin had Teodula's approval for the 1990 conveyance. Finding Joaquin agreed in the divorce judgment to give Teodula property that was not his to give and also breached a contractual obligation to Jerry, the court ordered Joaquin to bear the costs of an appraisal and pay Teodula one-half the current appraised value of the subject property. On the same day, the court clerk mailed a file-stamped copy of the order to Joaquin at the 1275 E. Hwy, Calexico, California address.
On September 11, 2008, the commissioner ordered Joaquin to pay attorney fees of $10,000 to Teodula and $10,000 to Jerry, and ordered counsel to choose a receiver to submit to the court. That order was entered on October 16, 2008, as an order after hearing. Thereafter, on October 3, 2008, and by findings and order after hearing entered on October 27, 2007, the court found the subject property's appraised value to be $135,000 and ordered Joaquin to pay Teodula $67,500, as well as one-half of a $250 fee to evaluate the property's partition. The court appointed Cecilia Griffiths to investigate the feasibility of partitioning the property. On November 10, 2008, Joaquin filed a notice of appeal of the October 16, 2008 findings and order after hearing, as well as the October 27, 2008 order "and from all interim rulings."
DISCUSSION
I. Contentions
Joaquin begins with the broad contention that the family court in this matter had no jurisdiction to modify a final judgment regarding his and Teodula's property division; that Teodula's relief was limited to direct attack under Code of Civil Procedure section 473 before the judgment became final, and after the judgment was final, her remedy was to prove fraud, undue influence or breach of fiduciary duty. He argues the court misconstrued the case as one involving an issue of partially omitted assets under section 2556 and made irreconcilable findings as to that principle; that there was no partially omitted asset because the parties divided their entire community property interest, and their mistakes as to the property's valuation did not create an omitted asset. According to Joaquin, following entry of the final judgment Teodula should have pursued relief under section 2122, and analyzing the matter under those principles, she did not meet her burden of proof, nor could she show material harm because the marital property was equally divided under that statute. Joaquin further argues Teodula did not seek appropriate relief under section 2122 in a timely manner; that the statutes of limitation for actions asserting mistake, duress or fraud bar her action.
II. Teodula's Procedural Challenges
Preliminarily, we address Teodula's numerous procedural challenges to the appellate issues raised by Joaquin, including to the sufficiency and timeliness of Joaquin's notice of appeal. Specifically, Teodula contends we may not review the matter because Joaquin's notice of appeal does not identify the July 22, 2008 order and is untimely. She also asks us to deny Joaquin's request for judicial notice of the underlying superior court file, from which Joaquin sought to show the absence of a proof of service or summons conferring jurisdiction over him. Pointing out Joaquin was not represented by counsel and did not file any papers in the family court, she contends that every one of Joaquin's issues is a new theory not properly raised for the first time on appeal. In that vein, Teodula argues Joaquin cannot raise any statute of limitations issue because he did not assert the defense below. Finally, as to the October 27, 2008 order identified in Joaquin's notice of appeal, Teodula argues Joaquin did not raise any appellate arguments as to that order, and thus waived any challenge to it.
A. Timeliness and Content of Joaquin's Notice of Appeal
Teodula's challenge to the timeliness of Joaquin's notice of appeal is without merit. The July 22, 2008 post-judgment order "plainly contemplate[ed] further judicial proceedings...." (See Corona v. Corona (2009) 172 Cal.App.4th 1205, 1218.) Specifically, the court ordered the appointment of a referee and an appraisal, presumably to reach a decision as to the subject property's value. Thus, the July 22, 2008 order was a nonappealable interlocutory order. (See id. at pp. 1217-1219.) It was not until October 3, 2008, that the court actually appointed the referee, Cecilia Griffiths, and ordered Joaquin to pay Teodula $67,500, which was one-half the appraised value of the property. That order was encompassed within the October 27, 2008 findings and order after hearing, which finally determined the property's value. That order is expressly identified in Joaquin's notice of appeal, which was timely filed on November 1, 2008. Accordingly, this court has jurisdiction to review the interim July 22, 2008 order in Joaquin's appeal from the trial court's October 27, 2008 final postjudgment order.
B. Joaquin's Request for Judicial Notice
Joaquin has asked under Evidence Code section 452, subdivision (d) that we take judicial notice of the entire superior court file in the matter to demonstrate the absence of any proof of service or return of summons on him in case No. D-0547 and the related consolidated quiet title action. Teodula argues his request is an "implied" attack on jurisdiction and an attempt to circumvent the requirements for designating the record on appeal or augmenting the record. She points out the numerous methods by which he could have placed the superior court file in the record, but did not. She asserts Joaquin was personally served with all pertinent documents before the hearing and subpoenaed as a witness, but does not point to any such documents, stating it is not her burden to dispute Joaquin's assertions. Finally, she argues none of Joaquin's arguments matter because he appeared for the first hearing to contest the motion on its merits and thus waived any defect or irregularity in notice.
When a request for judicial notice is properly made of a matter enumerated under Evidence Code section 452, as here, and the party requesting notice has given sufficient notice and information about its propriety, judicial notice of the matter is mandatory. (Evid. Code, § 452; Assem. Com. on Judiciary com., 29B pt. 1 West's Ann. Evid. Code (1995 ed.) foll. § 452, p. 448.) Because Teodula was given sufficient notice of Joaquin's request and Joaquin seeks to prove the absence of any return of summons or proper notice otherwise of the evidentiary hearings in this matter, we grant Joaquin's request that we take judicial notice of the entire superior court file in this matter. (Evid. Code, §§ 452, subd. (d)(1), 459; see Carl v. Superior Court (2007) 157 Cal.App.4th 73, 75.)
Doing so, we note that Joaquin was not personally served with any papers until March 9, 2008, approximately two weeks before the first evidentiary hearing in the matter, when he was served at an address at Parkside Drive in Mecca, California, with numerous pleadings, proofs of service and orders, including the motion to quiet title and request for joinder as well as the complaint for quiet title. Our review of the court file, however, does not change the outcome of this appeal in view of our holding, which does not turn on questions concerning the court's jurisdiction over Joaquin.
C. New Theories on Appeal/Statute of Limitations
We are not persuaded by Teodula's arguments regarding Joaquin's assertions of new theories on appeal, including the applicability of the statute of limitations of section 2122. The gist of Joaquin's contention on appeal is that Teodula's attack on their property division is barred as a matter of law because she did not utilize the proper procedure within the specified limitations periods. The question of whether a statute of limitations applies to a particular matter is ordinarily a question of law. (See People ex rel. Dept. of Conservation v. Triplett (1996) 48 Cal.App.4th 233, 246; Kaatz v. City of Seaside (2006) 143 Cal.App.4th 13, 28; see also International Engine Parts, Inc. v. Feddersen & Co. (1995) 9 Cal.4th 606, 611 [application of statute of limitations to undisputed facts is question of law].) To determine the statute of limitations that applies to a cause of action it is necessary to identify the cause's nature or " 'gravamen' "; it is the " ' "nature of the right sued upon and not the form of action nor the relief demanded [that] determines the applicability of the statute of limitations under our code." ' " (Triplett, 48 Cal.App.4th at pp. 246-247, quoting Hensler v. City of Glendale (1994) 8 Cal.4th 1, 22-23; see McLeod v. Vista Unified School Dist. (2008) 158 Cal.App.4th 1156, 1165.)
We may consider Joaquin's contention at this stage because it is well settled that "a litigant may raise for the first time on appeal a pure question of law [that] is presented on undisputed facts." (Hale v. Morgan (1978) 22 Cal.3d 388, 394; see also Stone Street Capital, LLC v. California State Lottery Commission (2008) 165 Cal.App.4th 109, 123, fn. 10.) There is no factual dispute as to the contents of the parties' MSA and its property disposition, nor is there any dispute about the nature of the relief Teodula sought in her quiet title action. Under the circumstances, Joaquin may raise the legal questions of whether Teodula was required to utilize a particular procedure to attack the property disposition and the applicable limitations period in order to do so.
III. The Trial Court Erred By Finding the Subject Property to be an Omitted Asset
Joaquin challenges the family court's finding that the subject property was an omitted asset under section 2556. He argues that their stipulated judgment only awarded Teodula his community interest in the subject property, which he held in joint tenancy with his son, and she received 100 percent of the community's interest. Joaquin relies on In re Marriage of Simunza (2004) 121 Cal.App.4th 1513 as support for the proposition that Jerry's interest was not an omitted asset under section 2556. He argues that Teodula was required to pursue her claim under section 2122 because the judgment was final. We agree.
Section 2556 provides: "In a proceeding for dissolution of marriage... the court has continuing jurisdiction to award community estate assets or community estate liabilities to the parties that have not been previously adjudicated by a judgment in the proceeding. A party may file a postjudgment motion or order to show cause in the proceeding in order to obtain adjudication of any community estate asset or liability omitted or not adjudicated by the judgment. In these cases, the court shall equally divide the omitted or unadjudicated community estate asset or liability, unless the court finds upon good cause shown that the interests of justice require an unequal division of the asset or liability."
California has a strong public policy favoring the finality of judgments in cases where relief under Code of Civil Procedure section 473 is no longer available. (See In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051, 1071, see e.g. In re Marriage of Kieturakis (2006) 138 Cal.App.4th 56, 89-90.) The California Supreme Court has stated, with respect to property division, that "[a]n interlocutory decree which does not expressly reserve jurisdiction to divide property at a later date (see [former] Civ. Code, § 4800 [now generally § 2550)]), but instead renders a present division of property, if not challenged by appeal becomes a final and conclusive adjudication of the property rights of the parties." (In re Marriage of Brown (1976) 15 Cal.3d 838, 851.) If a property settlement is incorporated in the divorce decree, the settlement is merged with the decree and becomes the final judicial determination of the property rights of the parties. (Giovannoni v. Giovannoni (1981) 122 Cal.App.3d 666, 669, citing Kulchar v. Kulchar (1969) 1 Cal.3d 467, 470-471.)
"Marital property rights and obligations adjudicated by a final judgment cannot be upset by subsequent efforts to 'modify' the judgment. [¶] The sole remedy with respect to a judgment adjudicating a property division is a timely set-aside motion under [Code of Civil Procedure section] 473[, subdivision] (b)..., a timely appeal or, after the time for [Code of Civil Procedure section] 473[, subdivision] (b) relief expires, a [Family Code section] 2120 et seq. set-aside proceeding on statutorily-prescribed grounds and within statutorily-prescribed time limits.... " (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2009) ¶ 17:340, p. 17-83; see also In re Marriage of Heggie (2002) 99 Cal.App.4th 28, 32-33; In re Marriage of Rosevear (1998) 65 Cal.App.4th 673, 684.)
However, a court may divide a community property asset not mentioned in the judgment under section 2556. Under that section, "the court has continuing jurisdiction to award community estate assets or community estate liabilities to the parties that have not been previously adjudicated by a judgment in the proceeding." (§ 2556.) One of the required showings under section 2556 is that the community asset was not "previously adjudicated... in the proceeding." (§ 2556.) For this purpose, "[t]he crucial question is whether the benefits were actually litigated and divided in the previous proceeding." (Miller v. Miller (1981) 117 Cal.App.3d 366, 371.)
Here, the parties specifically identified the asset — the subject property — in both of their schedules of assets and identified it as community property. The property was purportedly awarded to Teodula in the final judgment of dissolution. Under these circumstances, In re Marriage of Melton (1994) 28 Cal.App.4th 931 is not controlling. In Melton, the parties relied on a pension benefits plan administrator's calculation of the husband's future retirement benefit to determine the amount the wife would be entitled to receive when the husband reached retirement age. In making his calculation, the plan administrator assumed the husband would retire at a certain age, in a specified job classification, and with no changes in the benefit plan. When the husband ultimately began receiving retirement benefits at an older age with a different job classification and under an amended retirement plan, the appellate court held the increased benefits he received could be divided between the parties as a partially omitted asset. (Id. at p. 939.) The facts of Melton, involving benefits under a pension plan, are simply not comparable to the facts here, where the parties explicitly disposed of the asset in their settlement agreement.
The deed shows that in 1991, title to the property was granted to "Joaquin Lopez Lira, a married man as his sole and separate property and Jerry C. Lira, a single man, all as joint tenants."!(AA 24)! We need not discuss the effect of the deed on the community status of the property because we conclude that, whatever its status, the subject property was in fact litigated and divided by the parties in their stipulated marital dissolution judgment and thus cannot be an omitted asset within the meaning of section 2556.
Further, because the parties divided their property interests by a marital settlement agreement incorporated into the stipulated judgment, the court did not need to concern itself with whether the property division was equal. (Fam. Code, § 2550 [equal division of community property is required "[e]xcept upon the written agreement of the parties, or on oral stipulation of the parties in open court"]; Mejia v. Reed (2003) 31 Cal.4th 657, 666 ["Whenever... the parties agree upon the property division, no law requires them to divide the property equally, and the court does not scrutinize the [marital settlement agreement] to ensure that it sets out an equal division"].) On the face of the record before us, there is no basis by which the family court could have concluded that the subject property at 1297 E. Highway 98 was an omitted asset that was not adjudicated in the final judgment of dissolution. (Accord, In re Marriage of Hixson (2003) 111 Cal.App.4th 1116, 1124-1125 [exhibits to stipulated judgment showed parties had identified and divided their stock holdings, including particular shares at issue, and thus the family court did not abuse its discretion in denying discovery under the provisions of section 2556].)
Joaquin's testimony indicated that he believed at the time of the divorce that he was giving Teodula the entire interest in the subject property because "she wanted to stay there." It may be that the parties mistakenly believed that Teodula was to receive an entire undivided interest in the subject property (as opposed to merely Joaquin's one-half interest shared with Jerry in joint tenancy), but during the proceedings and at the time of the stipulated judgment's entry, both Joaquin and Teodula were in possession of their own asset statements attaching the deeds showing that title was held by both Joaquin and Jerry as joint tenants. And Joaquin is correct that if Teodula felt there was a mistake or fraud in connection with the property division, her exclusive remedy was to set aside the January 15, 2004 judgment in a proceeding timely brought under section 2122. (§ 2122, subds. (a) & (e); see In re Marriage of Kieturakis, supra, 138 Cal.App.4th at p. 87 [section 2122 specifies " 'the exclusive grounds' " to set aside a judgment after the six-month deadline under Code of Civil Procedure section 473 has passed, italics added], quoting In re Marriage of Rosevear, supra, 65 Cal.App.4th at p. 684; In re Marriage of Brewer and Federici (2001) 93 Cal.App.4th 1334, 1344) We agree that Teodula, who was represented by counsel (as was Joaquin), should have discovered Jerry's ownership interest in the subject property by the time the January 15, 2004 judgment was entered based on her possession of the deed reflecting title to the property vesting to Joaquin and Jerry. Teodula, however, did not file her proceeding until July 11, 2007, three and a half years after entry of the judgment. Her proceeding is barred under the limitations provisions of section 2122 (footnote 7, ante).
Section 2122 provides: "The grounds and time limits for a motion to set aside a judgment, or any part or parts thereof, are governed by this section and shall be one of the following: [¶] (a) Actual fraud where the defrauded party was kept in ignorance or in some other manner was fraudulently prevented from fully participating in the proceeding. An action or motion based on fraud shall be brought within one year after the date on which the complaining party either did discover, or should have discovered, the fraud. [¶] (b) Perjury. An action or motion based on perjury in the preliminary or final declaration of disclosure, the waiver of the final declaration of disclosure, or in the current income and expense statement shall be brought within one year after the date on which the complaining party either did discover, or should have discovered, the perjury. [¶] (c) Duress. An action or motion based upon duress shall be brought within two years after the date of entry of judgment. [¶] (d) Mental incapacity. An action or motion based on mental incapacity shall be brought within two years after the date of entry of judgment. [¶] (e) As to stipulated or uncontested judgments or that part of a judgment stipulated to by the parties, mistake, either mutual or unilateral, whether mistake of law or mistake of fact. An action or motion based on mistake shall be brought within one year after the date of entry of judgment. [¶] (f) Failure to comply with the disclosure requirements of Chapter 9 (commencing with Section 2100). An action or motion based on failure to comply with the disclosure requirements shall be brought within one year after the date on which the complaining party either discovered, or should have discovered, the failure to comply."
IV. Attorney Fee Awards
A. Background
After the family court issued its order and judgment on the subject property, it set an August 22, 2008 hearing at Teodula's request on the question of attorney fees. On that date, the court found Joaquin had not been given notice of the hearing and rescheduled the matter, ordering the clerk to give notice to Joaquin at his Mecca, California address. Three days before the rescheduled hearing, Teodula filed an "addendum" to an income and expense declaration she had filed in April 2008, in which she had previously estimated Joaquin's social security and pension income to be $20,000 per year ($1,666.66 monthly). In Teodula's addendum, she estimated Joaquin's income to be $3,333.33 per month apart from his social security income, asserting Joaquin had unspecified property in Riverside County and basing her knowledge from their marriage and "his ability to buy, sell, and rent property, as well as his ability to manage investments... "
In that April 2008 income and expense declaration, Teodula claimed $1124.66 in average monthly income and $863.33 in expenses for herself.
At the hearing, at which Joaquin appeared without counsel, Teodula requested that the court award her $15,692.11 in attorney fees. Joaquin advised the court that he did not understand why he was present, unsuccessfully attempted to provide the court with papers, and stated he needed to have someone explain everything to him. The court initially indicated it would reserve the issue, but Teodula's counsel sought an "interim" ruling on fees. The discussion continued, and Jerry's counsel requested approximately $20,943.74 in attorney fees under both his partition cross-complaint and the Family Code, arguing that Teodula had the most ability to pay with the most excess income each month and most assets of all the parties. Jerry's counsel maintained that Teodula's addendum as to Joaquin's income was entirely inconsistent with her prior income and expense declaration. She pointed out Teodula had initiated the proceedings and had known Jerry was a joint tenant in the subject property from 2000 when she filed the papers showing his interest and further accepted that situation when she entered into the original judgment in 2004.
Noting that Joaquin had not filed any current financial statement or income and expense declaration, the court ordered him to pay $10,000 each to Teodula and Jerry. It found Joaquin had the ability to pay those fees under section 2030, and stated it looked at Teodula and Jerry's respective incomes.
B. Standards Applicable to Attorney Fee Awards Generally
Each party to a lawsuit must pay its own attorney fees unless a contract or statute provides otherwise. (Code Civ. Proc.,§ 1021; Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 128; Finney v. Gomez (2003) 111 Cal.App.4th 527, 545.) The question of whether the criteria for an award of attorney fees and costs have been satisfied is typically a question of law involving statutory construction, but under some circumstances may also be a mixed question of law and fact. (See Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175.) We review an award of attorney fees and costs for abuse of discretion; under that standard we do not disturb the trial court's decision unless there is no substantial evidence to support its findings or when there has been a miscarriage of justice. (Finney, at p. 545.)
C. Attorney Fees in Connection with Jerry's Partition Cross-Complaint
Jerry prevailed on his partition action against Teodula, but obtained an award of attorney fees from Joaquin, who was not a party to the partition cross-complaint. To the extent Jerry was entitled to an award of attorney fees or costs in connection with his partition cross-complaint (see Code Civ. Proc. §§ 874.010, 840.040), the trial court had no jurisdiction to award such fees against Joaquin. The order requiring Joaquin to pay Jerry's attorney fees is thus void. (See In re Marriage of Jackson (2006) 136 Cal.App.4th 980, 988.) We remand the matter for the trial court to determine Jerry's claim for attorney fees against Teodula in connection with his partition cross-complaint. In doing so, we express no opinion on Jerry's entitlement to such fees or costs, which requires a mixed factual and legal determination as to whether Jerry's fees were incurred or paid for the parties' "common benefit."
Section 874.010 subdivisions (a) and (b) state that in partition actions the court may award "reasonable attorney's fees incurred or paid by a party for the common benefit" and "the fee and expenses of the referee." Section 874.040 provides: "Except as otherwise provided in this article, the court shall apportion the costs of partition among the parties in proportion to their interests or make such other apportionment as may be equitable." The costs of partition include "disbursements or expenses determined by the court to have been incurred or paid for the common benefit." (§ 874.010, subd. (e), italics added.) These sections "lead[ ] to the conclusion that costs should be awarded in proportion to the litigant's interest in the property." (Stutz v. Davis (1981) 122 Cal.App.3d 1, 4.) " '[T]he purpose of the statute is to divide the cost of the legal services among the parties benefited by the result of the proceeding.' " (Ibid; see also Finney v. Gomez, supra, 111 Cal.App.4th at p. 545.)
D. Attorney Fees Incurred in Quiet Title Action Under Section 2030
Joaquin contends the family court had no jurisdiction to order him to pay attorney fees to either Teodula or Jerry in connection with Teodula's quiet title action because (1) he was never properly served with process and (2) there is no statutory authority for the award. Joaquin correctly points out that an attorney fee award must be based on a statutory or contractual provision, and no such authority exists in the quiet title statutes for Teodula to recover her fees for prosecuting the quiet title matter or Jerry to recover his attorney fees for defending that matter.
Teodula does not challenge Joaquin's contention that her quiet title action lacked a statutory basis for an attorney fee award. She responds that sections 1101, subdivision (g) and 271 authorize the award in view of the trial court's findings regarding Joaquin's breach of fiduciary duty. She further argues that her quiet title action was substantially related to the family court matter, and section 2030 authorizes an award of attorney fees not only in family court proceedings, but also in related independent proceedings such as her quiet title matter, which was assertedly "one of a number of theories" on which she requested her underlying relief.
Having reversed the family court's order finding the subject property an omitted asset, Teodula has no basis for an award of attorney fees under either section 1101, subdivision (g), providing remedies for breach of a spouse's fiduciary duty, or section 271, which is an attorney fee award in the nature of a sanction. (In re Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1477.) Our holding is based in part on grounds that Teodula as a matter of law should have known of Jerry's interest in the property based on the deeds attached to her dissolution papers and Joaquin's disclosures, as well as the fact that Teodula is time-barred from setting aside the dissolution judgment on grounds of fraud, perjury, mistake or duress.
Nor can we affirm the attorney fee award as a needs-based award under section 2030. Sections 2030 and 2032 permit the trial court to order one party to pay some or all of the other party's attorney fees, based on their respective needs and abilities to pay. While no particular language is required in the court's order awarding attorney fees under sections 2030 and 2032, the record, including the order itself, must reflect an exercise of discretion and a consideration of the statutory factors in the exercise of that discretion. (In re Marriage of Lynn (2002) 101 Cal.App.4th 120, 133-134; In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 315; In re Marriage of Keech (1999) 75 Cal.App.4th 860, 866.)
Section 2030 reads in part: "(a) (1) In a proceeding for dissolution of marriage, nullity of marriage, or legal separation of the parties, and in any proceeding subsequent to entry of a related judgment, the court shall ensure that each party has access to legal representation to preserve each party's rights by ordering, if necessary based on the income and needs assessments, one party, except a governmental entity, to pay to the other party, or to the other party's attorney, whatever amount is reasonably necessary for attorney's fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding. [¶] (2) Whether one party shall be ordered to pay attorney's fees and costs for another party, and what amount shall be paid, shall be determined based upon, (A) the respective incomes and needs of the parties, and (B) any factors affecting the parties' respective abilities to pay...." (Italics added.)
A need-based award is "predicated on what is 'just and reasonable' given the 'relative circumstances' of the parties, and what amount was 'reasonably necessary' to adequately maintain or defend the action." (In re Marriage of Braud (1996) 45 Cal.App.4th 797, 827.) "It is well established in California that, although the trial court has considerable discretion in fashioning a need-based fee award (citation), the record must reflect that the trial court actually exercised that discretion, and considered the statutory factors in exercising that discretion." (Ibid.)
Here, the court made a single finding: that Joaquin had the "ability to pay" a fee award. There were no underlying factual findings as to Teodula's ability to pay, her income, or her and Joaquin's respective needs, as is required for purposes of a needs-based award. (§§ 270, 2030, subd. (a)(2)(A).) Nor does the order show that the court considered any of the factors set forth in section 4320, including Joaquin's earning capacity or standard of living. The record does not reflect that the court actually exercised its discretion and considered all of the statutory factors in exercising its discretion to award needs-based attorney fees. (In re Marriage of Braud, supra, 45 Cal.App.4th at p. 827.) Even if there were such findings, our reversal of the order finding the subject property (or Jerry's interest therein) to be an omitted asset significantly changes the circumstances as to what is a "just and reasonable" amount. (§ 2032, subds. (a) & (b).) In any event, on this record, the order requiring Joaquin to pay $10,000 in attorney fees to Teodula cannot be affirmed as a needs-based award under section 2030. We therefore reverse that attorney fee award.
To determine the amount of attorney fees that is "just and reasonable" under section 2032, courts consider " ' "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." ' " (In re Marriage of Keech, supra, 75 Cal.App.4th at p. 870.)
DISPOSITION
The orders are reversed and the matter remanded for redetermination of Jerry Lira's request for attorney fees against Teodula Lira in connection with his partition cross-complaint. Joaquin Lira shall recover his costs on appeal.
WE CONCUR McCONNELL, P. J., IRION, J.
Section 2032 offers trial courts additional guidance in making the attorney fee award: "(a) The court may make an award of attorney's fees and costs under Section 2030 or 2031 where the making of the award, and the amount of the award, are 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 present the party's case adequately, taking into consideration, to the extent relevant, the circumstances of the respective parties described in Section 4320 [listing various circumstances that the court "shall consider" in awarding spousal support]. The fact that the party requesting an award of attorney's fees and costs has resources from which the party could pay the party's own attorney's 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." (Italics added.)