SUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF SANTA CLARA ) ) ) ) ) ) ) ) ) ) ) )

In re the Marriage of: JANET VERSON, Petitioner, and JACK VERSON, Respondent.

Case No.: 105-FL-126612 ORDER DENYING SECTION 271 SANCTIONS Department 76

The parties reached an agreement in terms of their divorce settlement on March 18, 2008. The settlement hearing addressed the issue of spousal support, and the parties indicated they had reached a stipulation on March 3, 2008 that both the ongoing monthly amount and the Smith-Ostler amount would be calculated by the Dissomaster. Testimony of particular importance from the settlement came from Ms. Stephenson, who said, Support shall be as set forth in that agreement, meaning it says the Smith-Osler will include any and all income over the base income for husband set for in that stipulation. And other income shall include, but not be limited to, contributions to any tax deferred savings plan made on behalf of husband, made by his employer on behalf of husband. (Exhibit A, p. 5, lines 1-11; emphasis added). Under Family Code Section 2030, the court shall ensure that each party has access to legal representation to preserve each partys rights by ordering, if necessary based on the income and needs assessments, one party . . . to pay to the other party, or to

the other partys attorney, whatever amount is reasonably necessary for attorneys fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding. The Court must base an award on (1) the respective incomes and needs of the parties, and (2) any factors affecting the parties respective abilities to pay. Family Code section 2032 allows the court to make an attorneys fees award where the making of the award, and the amount of the award, are just and reasonable under the relative circumstances of the respective parties. The court is also required to take into consideration, to the extent relevant, the circumstances of the respective parties described in section 4320. In the recent case of Alan S., Jr. v. Superior Court (2009) 174 Cal.App.4th 238, 254, the Court of Appeal emphasized that a pendente lite fee award should be the product of a nuanced process in which the trial court should try to get the big picture of the case. A disparity in monthly income is not in itself a sufficient reason to require section 2030 award. The Court emphasized the need to consider the statutory factors in using its discretion to award attorneys fees. The request for attorneys fees stems from the dissolution of a fourteen year marriage that produced two minor children. Both parties blame the other for the need to incur attorneys fees. Petitioner claims that Respondent unnecessarily initiated formal discovery; Respondent claims Petitioner unreasonably controlled visitation. These sentiments aside, the pertinent facts follow. Respondent earns $9,333 per month (a base salary of $112,000 per year not including bonus income) while Petitioner earns $3,563 per month and does not receive bonus income. The Court divided remaining community property in its March 30, 2009 order, granting Petitioner the family home and one of the three vehicles, while Respondent was given the remaining two vehicles. In addition,

Respondent has $100,000 in liquid assets compared to Petitioners $21,000 in liquid assets. The parties are in disagreement over the disbursement of funds from their joint bank account to Petitioners family. Respondent accuses Petitioner of giving approximately $90,000 of community property money to her mother and sister. Petitioner claims that this money was not community property, but money that her mother entrusted to her so she could help her mother buy and sell a condo in Hawaii. Regardless, the money is not money Petitioner has at hand. The most relevant statutory factors are the following: The ability of the Respondent to pay attorneys fees. Respondents monthly net income, even after taking into account his support obligations, is sufficient to pay for an attorney for both himself and Petitioner, assuming that the fees are reasonable and that payments are made over time. Although Petitioner would have more spendable income than Respondent after receipt of child and spousal support, Petitioner bears more expense burdens than does Respondent. Obligations and assets of each party. Petitioner bears more substantial obligations than Respondent, including payments related to the family home (which Respondent stopped paying in light of the March 30, 2009 order), the vehicle she received as her share of community property, and other childcare expenses. Respondent, other than child and spousal support, must pay rent, but lacks the additional high expenses. As noted above, Respondent has more liquid assets than Petitioner. The balance of the hardships to each party. Respondent will undoubtedly suffer some hardship by having to pay Petitioners attorneys fees, but

Petitioner is at a fundamental financial disadvantage in this proceeding because of Respondents greater earning capacity and lesser financial obligations. After considering the respective incomes and needs of the parties, the factors affecting the parties respective abilities to pay, and the relevant statutory factors, the Court finds that an award of attorneys fees in the amount of $7,500 is just and reasonable. Dated: June 15, 2009

Hon. Aaron Persky Judge of the Superior Court