Marriage of Bailey and Nation CA2/8

Filed 10/28/13 Marriage of Bailey and Nation CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

In re Marriage of ADRIAN BAILEY and B242417 REBECCA NATION. (Los Angeles County Super. Ct. No. SD 025781)

ADRIAN BAILEY,

Respondent,

v.

REBECCA NATION,

Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, David J. Cowan, Commissioner. Reversed.

Friedman & Friedman, Ira M. Friedman, David Friedman and Gail S. Green for Appellant.

Adrian Bailey, in pro. per., for Respondent.

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In a prior appeal, we reversed a trial court order requiring Rebecca Nation to pay her ex-husband Adrian Bailey‟s attorney fees. We found no evidence that Nation had the ability to pay Bailey‟s fees even though there was evidence Nation‟s mother had such ability. While the prior appeal was pending, the trial court ordered Nation to pay additional fees to Bailey‟s attorney. We now reverse the second order for the same reason as the first: there was no evidence that Nation had the ability to pay Bailey‟s attorney fees. FACTS AND PROCEDURE Nation and Bailey, who divorced in 2007, have one child. (In re Marriage of Bailey & Nation (Jan. 14, 2013, B236851) [nonpub. opn.] (Bailey I).) In September 2011, the trial court ordered Nation to pay $10,000 in attorney fees to Bailey. We reversed that order in an opinion filed January 14, 2013. (Bailey I, supra, B236851.) We explained that there was no evidence Nation had the ability to pay the attorney fee award and “Nation‟s mother could not be ordered under [Family Code] section 2030 to finance her ex-son-in-law‟s litigation.” (Ibid.) While Bailey I was pending, on March 15, 2012, the trial court ordered Nation to pay Bailey‟s attorney $10,000 to assist with the appeal in Bailey I. The trial court found that “there is a disparity in access to funds to retain counsel, and that the Respondent [Nation] has access to funds, based upon the amount of attorney‟s fees that have been paid by her, or paid on her behalf, in the past.” The court further indicated it would not permit discovery by either party until Nation paid Bailey‟s attorney. The court recognized that this second order was based on the same reasoning as its first (the one then pending on appeal) and recognized that reversal of the first order would require reversal of the second. DISCUSSION In the prior appeal, we determined that “[Family Code] section 2030 requires not only a disparity in access to funds, but also evidence that one party is able to pay for legal representation of both parties. Section 2030, subdivision (b) provides: „the court shall make findings on whether an award of attorney‟s fees and costs under this section is