Attorney Fees in Marital Proceedings in California
In general, " ' "California's public policy in favor of expeditious and final resolution of marital dissolution actions is best accomplished by providing . . . , consistent with the financial circumstances of the parties, a parity between spouses in their ability to obtain effective legal representation." '
'A motion for attorney fees and costs in a dissolution proceeding is left to the sound discretion of the trial court. In the absence of a clear showing of abuse, its determination will not be disturbed on appeal. "The 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. . . ." ' " (In re Marriage of O'Connor (1997) 59 Cal.App.4th 877, 881.)
The purpose behind Family Code section 2030 "is to ensure that the overall cost of litigating a proceeding for the dissolution of marriage . . . is apportioned equitably depending on what is 'just and reasonable under the relative circumstances of the respective parties.' ." (Perry, supra, 61 Cal.App.4th at pp. 310-311.)
Although the trial court enjoys broad discretion in awarding attorney fees in marital proceedings, the exercise of that discretion is guided by statute (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 314 (Cheriton), and the record must reflect that the court " 'actually exercised that discretion, and considered the statutory facts in exercising that discretion.' " (Id. at p.315.)
"Financial resources are only one factor for the court to consider in determining how to apportion the overall cost of the litigation equitably among the parties under their relative circumstances." ( 2032, subd. (b).)
With regard to attorney fees being charged against a third party who is not the spouse of another party, the matter turns upon, among other things, personal jurisdiction and a statutory basis for joinder of the third party in the family law action. Generally, "the statutory basis for joinder to a family law action is a third party's claim or control over some 'interest' in the family law proceeding. " (Schnabel v. Superior Court (1994) 30 Cal.App.4th 758, 762.)
Specifically, the California Rules of Court, rules 5.150 through 5.162 (all further rule references are to the California Rules of Court), provide the requirements and procedures for joining third parties to a dissolution action. Rule 5.150 provides, in relevant part, that "a person who claims or controls an interest subject to disposition in the proceeding may be joined as a party to the proceeding . . . ." Rule 5.154 provides that the petitioner or the respondent, in addition to a third party "who has or claims custody or physical control of any of the minor children subject to the action, or visitation rights with respect to such children" may apply to the court for an order joining the third party person who makes such claims regarding the children or "who has in his or her possession or control or claims to own any property subject to the jurisdiction of the court in the proceeding." (Rule 5.154, subds. (a) & (b).)
Rule 5.158, subdivision (a) makes it mandatory to join a third party to the proceeding where "the court discovers that party has physical custody or claims custody or visitation rights with respect to any minor child of the marriage." Subdivision (b) of rule 5.158 provides in part that joinder is permissive and at the court's discretion "if the court finds that it would be appropriate to determine the particular issue in the proceeding and that the person to be joined as a party is either indispensable to a determination of that issue or necessary to the enforcement of any judgment rendered on that issue."
With regard to third parties who are grandparents, the California Supreme Court has noted, "their rights to court-ordered visitation with their grandchildren are purely statutory. Three California statutes expressly address grandparent visitation: . . . section 3102, which permits visitation by a deceased parent's children, siblings, parents, and grandparents if such visitation would be in the best interests of the child; section 3103, which permits a court in specified proceedings involving the custody of a child to grant grandparent visitation; and section 3104, which permits grandparents to petition for visitation if the grandchild's parents are not married or if certain other conditions are met." (In re Marriage of Harris (2004) 34 Cal.4th 210, 219-220 (Harris).)
This later statute governs a grandparent's petitioned joinder in a proceeding to obtain custody or visitation after entry of judgment dissolving the marriage where one parent has been awarded sole custody of the children. (Id. at pp. 222-223.)
In such case, "the court may grant reasonable visitation if the court 'finds that there is a preexisting relationship between the grandparents and the grandchildren that has engendered a bond such that visitation is in the best interest of the children' and 'balances the interest of the children in having visitation with the grandparents against the right of the parents to exercise their parental authority.' " (Id. at pp. 220-221.)
Section 3104 also provides a rebuttable presumption that grandparent visitation is not in the child's best interest, if the parents agree that the grandparents should not be granted visitation. ( 3104, subd. (e).)
However, " 'the facts and circumstances of the parties in each family law case are different, which is why they are equitable proceedings in which the court must have the ability to exercise discretion to achieve fairness and equity.' " (In re Marriage of Jovel (1996) 49 Cal.App.4th 575, 587.)