PETERSON, J. I concur in the result reached by the majority. I write separately to disavow the majority’s suggestion in dictum that the Legislature, in enacting Civil Code1 section 4370 and predecessor statutes incorporated therein, authorized judges and commissioners in family law actions to award attorney fees and costs incurred in other independent actions which deal with issues “related” to issues arising in dissolution or annulment cases.
I would reach the holding of the majority because: (1) The “proceeding related thereto” language of section 4370 was intended to mean proceedings postjudgment and pendente lite growing out of the family law action itself; and (2) the sole bases for determining the liability of one party in a family law case to pay costs and fees therein to the other are the respective contemporaneous needs and financial condition of each party.
A. Relevant Legislative History
The majority correctly finds that the mere analysis of the “proceeding related thereto” language of section 4370 (and particularly the word “related”) results in conclusions of such generality that ascertaining the meaning of the phrase by that method is impossible.
However, my colleagues, with the majority of courts commenting on the language of section 4370, have failed to properly analyze the purpose and legislative history of this statute and its predecessors in interpreting the intent, purpose, and function of the “proceeding related thereto” language.
Further, the majority’s conclusion, that “The generality of the statutory language thus leaves a wide area for exercise of the trial court’s discretion in determining whether an [independent] action is ‘related’ to a [Family Law Act (Civ. Code, §§ 4000-5317) (FLA)] proceeding” (maj. opn., ante, p. 1496), assumes a legislative intent which never existed on passage of the statute in question, while ignoring cardinal rules of statutory construction which precedent commands we follow. This majority language now fastens an interpretation on the Legislature’s action, almost four decades after the language at issue was introduced into the Civil Code, which the Legislature has never subsequently evinced it so intended.
[15031]. Divining Legislative Intent
We have heretofore said: “In determining what the Legislature intended we are bound to consider not only the words used, but also other matters, ‘such as context, the object in view, the evils to be remedied, the history of the times and of legislation upon the same subject, public policy and contemporaneous construction. . . .’ [Citation.]” (American Tobacco Co. v. Superior Court (1989) 208 Cal.App.3d 480,486.) We are further obligated to consider, when determining legislative intent, the conditions which prompted the legislative enactment. (People v. Fair (1967) 254 Cal.App.2d 890, 893 [62 Cal.Rptr. 632].)
Where the State Bar of California sponsors and urges passage of legislation enacted into law, as it did here, the Bar’s report, discussion, and comments on its legislative proposal are valuable interpretive aids generating the reasonable assumption that the Legislature adopted the statute or amendment it enacts consistent with the expressed State Bar purpose. (Sales v. Stewart (1933) 134 Cal.App. 661, 664 [26 P.2d 44].) This principle is particularly applicable where, as here, Assembly Bill No. 2438 (Stats. 1953, ch. 620, § 1, p. 1864, hereafter A.B. 2438),2 by which the language we must consider became law, as introduced under the bar’s sponsorship, was passed by both houses and signed by Governor Warren without any amendment whatsoever. (A. B. 2438, Assem. Final Hist. (1953 Reg. Sess.) p. 763.)
2. The Prior Law
A brief examination of the law as it existed prior to 1953 is necessary to assist in identifying “the evils to be remedied” by A.B. 2438.
As amended in 1941, former section 137 provided, inter alia: “During the pendency of any such [divorce] action the court may, in its discretion, require the husband or wife ... to pay ... as attorney’s fees any money necessary for the prosecution of the action . . . .” (Stats. 1941, ch. 1038, § 1, pp. 2686-2687.)
From the latter part of the 19th century to 1950, a line of cases held that an attorney fees application, made pursuant to section 137 after the subject legal services were rendered in a divorce action, should be rejected as untimely. (See, e.g., Kohn v. Kohn (1950) 95 Cal.App.2d 722, 723-724 [214 P.2d 80] [This court (Division Two) referred to “the settled rule that [under [1504]the law as it then stood] counsel fees may not be allowed where the motion therefor is not made until after the services have been performed.”]; accord, McClure v. Donovan (1948) 86 Cal.App.2d 747, 748 [195 P.2d 911] [“The court is not empowered [under then-existing law] to make an award to the wife except upon a finding of necessity [citation] and necessity does not exist when the services have already been rendered. [Citations.]”]; cf. Stampfli v. Stampfli (1921) 53 Cal.App. 126, 132 [199 P. 829] [Attorney fees are granted solely to provide a wife with the services of counsel in the future.]; Lacey v. Lacey (1895) 108 Cal. 45, 46 [40 P. 1056] [“The allowance [of attorney fees] was for past services, and, under the circumstances, was clearly not ‘necessary to enable the wife .... to prosecute .... the action’; and ... it is erroneous.”].)
These cases had for decades placed litigants in divorce cases, and particularly their lawyers, in an obvious and disturbing dilemma. If a client/spouse with no funds needed immediate legal services to forestall the other spouse, for example, from disposing of community property or to obtain a temporary restraining order to preclude injury to the client or the client’s children, neither the lawyer nor the client could receive payment for those services from the adverse spouse (usually the husband) unless an order for payment of future services and costs was first obtained, or a stipulation was entered for the court’s consideration of such fees and costs at trial. If, in the superior interests of the client, emergency conditions dictated the professional performance of such services in advance of securing either an order against the adverse spouse to pay for the same, or the appropriate stipulation, the rule of Kohn and McClure applied. No “necessity” existed for payment for past performed attorney services, regardless of the ability of the other spouse to pay. The inequity and unfairness of this archaic rule were obvious to all.3
3. The Legislative Proposals of the State Bar
Legislative change was the obvious method of rectifying this rule; and the State Bar first undertook this task in 1951 by proposing the addition of a new section 137.5, to read as here pertinent: “Upon application, the court may in [1505]its discretion at any time thereafter increase the original award, if any, for costs and attorney’s fees in such amount as may be necessary and reasonable for the prosecution or defense of the action . . . and in determining the amount of such increased costs and attorney’s fees, the Court may consider costs theretofore expended and legal services theretofore performed . . . (Com. Reps., Administration of Justice (1951) 26 State Bar J. 187, § 6, p. 193, italics added.) The bar characterized this proposed legislation as providing “that award for attorneys’ fees or costs may include fees for services rendered or costs incurred prior [to], as well as subsequent to, order of court therefor.” (Id., § (C), p. 188, italics added.)
The Legislature, however, in the 1951 session simply rewrote section 137, transferring its provisions for costs and attorney fees to a new statute, section 137.3, the predecessor of section 4370. The bar’s proposal, that new section 137.3 provide for the award of fees for services rendered and costs expended in domestic relations cases prior to application therefor, was not explicitly set forth in the 1951 enactment of section 137.3. The statute as finally adopted read: “During the pendency of any action for divorce or for separate maintenance . . . , the court may order the husband or wife ... to pay such amount as may be reasonably necessary for the cost of maintaining or defending the action and for attorney’s fees.” (Stats. 1951, ch. 1700, § 4, p. 3911.)4
The State Bar returned to the Legislature in 1953 on this subject as part of its affirmative legislation program for that year, sponsoring amendments to section 137.3 which it characterized as its “final text of a bill on past services in domestic relations matters,” which became A.B. 2438. (Com. Reps., Administration of Justice (1953) 28 State Bar J. 256, § (B), p. 269, italics added.)
A.B. 2438, inter alia, added this language to section 137.3 (now § 4370): “During the pendency of any action for annulment . . . and of any action for divorce or for separate maintenance, or for the support ... of children, upon an order to show cause or motion, and if such relief is requested in the complaint . . . , the court may order [payment as] . . . reasonably necessary ... for [costs] . . . and for attorney’s fees[] . . . and before entry of judgment . . . may augment or modify the original award, if any, for costs and attorney’s fees as may be reasonably necessary for the prosecution [1506]or defense of the action or any proceeding relating thereto. In respect to services rendered after the entry of judgment .... the court may award such costs and attorney’s fees as may be reasonably necessary to maintain or defend any subsequent proceeding therein . . . .” (Stats. 1953, ch. 620, § 1, p. 1864, italics added.)
The bar announced to its membership that A.B. 2438 would authorize “an award for past services [in domestic relations matters] and costs, including services rendered and costs incurred prior to the filing of the complaint.” (Com. Reps., Administration of Justice (1953) 28 State Bar J. 256, § (B), p. 269.) By way of further explanation of that bill, the bar said: (1) The award could be augmented or modified; (2) fees and costs had to be requested in the appropriate pleading as a condition to order to show cause or motion for such fees and costs; (3) allowances for costs and services prior to judgment must be finalized by that time; (4) allowances for costs and services subsequent to judgment (i.e., “in connection with an appeal, or in later enforcement proceedings”) would be made on order to show cause or motion; (5) the basis for allowance of fees and costs remained measured by reasonable necessity; and (6) the amendments continued to leave awards of fees and costs to the discretion of the trial court—not compelling the court to do so, but empowering it to so act. (Ibid.)
The State Bar, having sponsored A.B. 2438, which passed both houses without a single amendment, confirmed the purpose of its sponsorship in a communication, through its secretary and counsel, to Governor Warren dated April 28, 1953, as follows: “[A.B. 2438], which has passed both houses of the Legislature and will be before you for consideration, was introduced at the request of the State Bar of California as a part of its affirmative legislative program, HD The bill would amend Section 137.3 of the Civil Code (enacted in 1951, covering matters formerly in Section 137). HD At present, orders for attorneys’ fees and costs in domestic relations cases are made on applications in advance covering future services. The primary purpose of this bill is to empower the court to make appropriate orders without being restricted to a fixed rule as to time when the application must be made. Under the bill, if the pleading requests the relief then an application must be made upon order to show cause or motion. The court could base its award upon services rendered or incurred prior as well as subsequent to the application. The Court could upon like application augment or modify the original award, if any. Similar provisions are made for allowances for services rendered in proceedings after judgment and such allowances would require an application on order to show cause or motion. HD ... HD The amendments will eliminate the necessity for speculation in advance, or the necessity of following the present practice of stipulating that the amounts be fixed at the [1507]time of trial. Sometimes necessary steps are not taken or are overlooked and, under the present provisions, the court must then deny awards on what amount to purely technical grounds. It is believed the new procedure will tend to decrease the volume of orders to show cause which is now substantial and which require[s] considerable time of the courts, parties and counsel. HO The bill makes the same procedure applicable to situations in annulment cases where allowances are now authorized by Section 87 of the same code.” (Italics added.)
4. The Purpose of the Legislation
In summary, the State Bar sponsored legislation, passed by both legislative houses and signed by Governor Warren, was never presented or represented as concerning services rendered and costs expended on matters which did not grow out of the domestic relations case itself. It corrected the “evils” and hardship of arbitrarily tying payment of legitimate attorney fees and costs to the time of application therefor, thereby precluding the inability of indigent domestic case litigants to obtain payment for necessary past professional services of counsel prior to an order therefor, without a stipulation waiving the prior order. Further, A.B. 2438, in eliminating the antiquated procedure of requiring either a voluntary stipulation for the court’s future consideration of payment for past legal services rendered and costs expended, or a prior order for payment therefor, was proposed to decrease the volume of orders to show cause necessitated when adverse counsel refused to so stipulate. The proliferation of multiple orders to show cause for payment of attorney fees and costs generated by the law followed prior to A.B. 2438 obviously wasted considerable time of the courts, parties, and counsel during the pendency of domestic relations litigation.
An additional obvious purpose of A.B. 2438 was to remove fixed time restrictions controlling attorney fees and costs allowances in all “domestic relations cases” by creating a statute of uniform application to annulments, divorce, and separate maintenance; and to the support, maintenance, or education of children.
Further, at the time A.B. 2438 was considered and passed by the Legislature, the legal principle had been well established since 1872 that attorney fees were to be paid if specifically provided for by statute or by agreement of the parties. (Code Civ. Proc., § 1021 as amended by Stats. 1933, ch. 744, § 180, p. 1899.) “Except where attorney’s fees are specifically allowed by statute, or by contract of the parties, they are not recoverable by a successful litigant as costs or otherwise.” (Murphy v. Murphy (1925) 71 Cal.App. 389, 392 [235 P. 653].)
[1508]The State Bar’s presentation and analyses of A.B. 2438 to its membership and to Governor Warren were utterly devoid of any expressed intention that the bill’s “any proceeding related thereto” language would permit courts in domestic relations cases to award attorney fees in independent actions, coincidentally dealing with issues which might relate to issues arising in dissolution or annulment cases. My research has revealed no case prior to A.B. 2438 that even considered the question of awarding fees and costs, which were generated in independent actions, in domestic relations cases. The bar, in its analysis to Governor Warren, only discussed the word “proceeding” in the context of “proceedings after judgment” in the domestic relations action itself, i.e., as growing out of that action.
A. B. 2438, thus, simply altered the California practice of many decades which required advance application or stipulation for future attorney fees in domestic relations cases, or a stipulation obviating the same, to preclude rejection of fee applications for attorney services theretofore performed. It never purported to say what the majority now says it said.
B. The Flaws in the Majority’s Analysis
Practical considerations and simple common sense, thus, require the rejection of the majority’s threadbare claim that “The generality of the statutory [related thereto] language thus leaves a wide area for exercise of the trial court’s discretion in determining whether an [independent] action is ‘related’ to a FLA proceeding.” (Maj. opn., ante, p. 1496.) The erroneous implication this analysis conveys is that the language of A.B. 2438 as incorporated into section 4370 allows family law courts, with or without proper joinder or an order of consolidation, (as the trial court in this case wrongly concluded it was allowed) to award to a spouse in a family law action the attorney fees incurred in a totally independent and separate action which somehow “relate[s]” to the domestic relationship or property or children of the parties.5 Such actions are potentially legion.
All claims and lawsuits by third parties involving recovery of damages from one or both spouses “relate[]” to their separate and community property, potentially the source of satisfying an adverse judgment with a concomitant loss of financial assets on which support orders may be based. All criminal and juvenile and civil actions involving the parties’ minor children or the guardianship of their person or estate or their personal injury recoveries “relate[]” to the custody and support of those children, matters always [1509]at issue in the family law action. All suits filed independently of the family law action by either spouse against the other or filed by them or third parties in rem, concerning any property interest of either spouse, “relate[]” to their domestic relationship, financial condition, and property interests.
The majority further rationalizes its holding as follows: “For example, by authorizing fees in cases related to FLA actions as well as in those directly under the FLA, section 4370 enables a trial court to ensure that an appropriate degree of financial parity between the parties is not lost by a party’s litigation of matters which could have been part of the FLA action in an independent suit.” (Maj. opn., ante, p. 1497, italics added.)
This reasoning would, of course, allow judges and commissioners in family law cases to award fees incurred by a spouse in separate litigation in which the very court hearing that separate litigation is powerless to award those fees—because no statute or agreement gives it that authority. For example, a husband incurring fees in separately and successfully codefending with his estranged wife an uninsured case against both parties for tortious damage where no fees are allowable to him could potentially use the family law action to collect those fees from the wife, on the majority rationale that he thereby preserved the community from being eroded by a potential judgment creditor and such action is, thus, “related” to the family law action in which the protected community property is to be divided.6
The time-consuming conditions and enormous workloads facing family law judges and commissioners today, accelerated by increasingly intricate requirements of the FLA and a concomitant acceleration of the number of those family law litigants who appear in propria persona, are widely known. The ramifications of the potential additional workload the majority dictum would thrust on already overburdened family law judges and commissioners, by means of the rationalization it utilizes in interpreting section 4370, are more than mind boggling and are extremely forbidding. Family law courts should not be required, on the majority’s analysis of the “proceeding related thereto” language of section 4370, to adjudicate such extraneous considerations; they should simply continue to exercise their discretion as to awards of attorney fees and costs controlled by established legal principle (Bluhm v. Bluhm (1954) 129 Cal.App.2d 546, 550 [277 P.2d 421]) in considering only the respective contemporary needs and income and assets of the parties (In re Marriage of Sullivan (1984) 37 Cal.3d 762-768 [209 Cal.Rptr. 354, 691 [1510]P.2d 1020]). The State Bar did not propose, and the Legislature did not enact, A.B. 2438 for the purposes suggested by the majority. The purpose of A.B. 2438 was quite different from the one the majority ascribes to it, and “it is a well-established legal principle that the purpose of a statute is a guiding star in defining the language it employs . . . .” (Sierra Club v. City of Hayward (1981) 28 Cal.3d 840, 860 [171 Cal.Rptr. 619, 623 P.2d 180], fn. 12.)
C. Relevant Case Law
The better reasoned cases have, albeit without analysis of statutory history, rejected any proposal to utilize the language of section 4370 as a basis of conferring upon family law judges and commissioners the power to make awards of attorney fees in family law actions for services in cases where the court hearing them was prohibited from doing so. The cases construing section 4370 and former sections 137 and 137.3 do not support the analysis and reasoning of the majority.
For instance, In re Marriage of Newport (1984) 154 Cal.App.3d 915, 920 [201 Cal.Rptr. 647] correctly defines the parameters of section 4370 when it cites In re Marriage of Coleman (1972) 26 Cal.App.3d 56, 60 [102 Cal.Rptr. 629]: “The phrase ‘during the pendency,’ used in section 137 and its successors, sections 137.3 and 4370,[7] has since been expanded to include ‘many [of the] diverse proceedings growing out of the divorce action and arising after the entry of the final decree.’ ”
This principle, that attorney fees are to be allowed in those proceedings which “grow[] out of’ the divorce proceeding, stems from the decision in Lerner v. Superior Court (1952) 38 Cal.2d 676 [242 P.2d 321], Lerner found that a writ of prohibition arising out of a custody dispute, which in turn grew out of the terms of a final divorce decree entered two years previously, was a proper subject for an attorney fee award as a proceeding growing out of the underlying divorce action. (Pp. 685-687.) Observing that then-section 137.3 (prior to its amendment) was a recodification of the first sentence of former section 137, the Supreme Court said: “It was settled under section 137 that the phrase therein, ‘when an action for divorce is pending,’ embraced many diverse proceedings growing out of the divorce action and arising after entry of the final decree.” (Id. at p. 685, italics added.) The court cited as illustrative cases those dealing with modification of the allowance for child support, [1511]modification of alimony, proceedings to enforce distribution of community property, motions to set aside the final decree, construction of the property settlement agreement, mandamus to compel entry of a judgment for delinquent alimony. (Ibid.) Lemer found no bar under section 137.3 to an award of attorney fees to wife, who was compelled to seek a writ of prohibition to prevent improper modification of a custody award in the divorce action, i.e., in proceedings which grew out of the divorce action.
Where the action does not grow out of the divorce, fees under section 137.3 are properly denied. Thus, in Hendrix v. Hendrix (1955) 130 Cal.App.2d 379 [279 P.2d 58], the court rejected a broader interpretation of the attorney fees provision. In Hendrix, the parties had been divorced in Washington State; and there was no California dissolution proceeding. When a later dispute was pursued in the California courts concerning the wife’s alleged kidnapping of some of the children, the trial court denied a motion for attorney fees in such an action: “It is not one of the actions specified in sections 137.3 and 137.5 of the Civil Code in which attorney’s fees are allowed. Since there is no statutory provision for the allowance of attorney’s fees in the present action, the mode of compensation is left to the agreement, express or implied, of the parties.” (Id. at p. 383.)
A few years later, the Second District also rejected a broad interpretation of the “relating thereto” language in Gottlieb v. Gottlieb (1957) 155 Cal.App.2d 715 [318 P.2d 763]. There, the former wife had caused the sheriff to execute against and acquire possession of her former husband’s car, alleging he was delinquent in making support payments under the dissolution decree. The husband brought an action for abuse of process, claiming he had been current on payments and his former wife acted maliciously. The trial court denied the former wife’s application for an award of attorney fees under the “relating thereto” language of then-section 137.3. The Second District affirmed: “The action for malicious abuse of process is in tort—the alleged tort of the former wife. . . . Manifestly, the action for malicious abuse of process is not related to nor does it grow out of the divorce action. It is based solely on the alleged tortious conduct of the former wife.” (Id. at p. 719, italics added.)
In Brink v. Brink (1984) 155 Cal.App.3d 218, 222 [202 Cal.Rptr. 57], this district (Div. Five) pointed out that section 4351 of the FLA (of which § 4370 is a part) confers jurisdiction under section 4800 to divide community property in “ ‘proceedings under this part’ (that is, in proceedings under [1512]the [FLA]),” and that wife’s independent equitable action to set aside the judgment of dissolution was not a FLA proceeding.8
The Brink court affirmed the trial court’s denial of the attorney fees wife sought in her lawsuit, claiming authority therefor under section 4370: “[T]he trial court lacked any authority to award attorneys’ fees, since the action was not pursued under the [FLA] and no other statute or contractual agreement provided for recovery of attorneys’ fees.” (155 Cal.App.3d at p. 223.)9
[1513]D. Section 4370 Does Not Allow an Award of Fees in Independent Actions
Finally, it should be noted that section 4370 of the same FLA, aside from other considerations of legislative history, includes the language “[d]uring the pendency of any proceeding under this part [the FLA] . . . .” The reasonable and analogous implication is that the “proceeding related thereto” language of section 4370 means related proceedings under the FLA, not those of some independent action.
The Legislature has certainly shown itself willing to amend section 4370 in light of experience. (See In re Marriage of Reyes (1979) 97 Cal.App.3d 876, 879 [159 Cal.Rptr. 84] [An award of fees under a prior version of section 4370 may be made only against marital partners.]; In re Marriage of Siller, supra, 187 Cal.App.3d at pp. 44-47 [Under the 1981 amendment to section 4370, an award of fees may be made against certain third parties. The family law court acquired subject matter jurisdiction over those third parties (a partnership and corporation in which husband held interests) by wife’s complaint in joinder alleging they held and claimed property in which she had a community property interest.10].) However, if section 4370 is to be amended to accomplish the exceptional result envisioned by the majority, “it is the task of the Legislature and not the courts to create that exception.” (Droeger v. Friedman, Sloan & Ross (1991) 54 Cal.3d 26, 41 [283 Cal.Rptr. 584, 812 P.2d 931] [analyzing the legislative history of analogous attorney fees provisions of the FLA].)
The Legislature has not provided, by amendment or otherwise, for the award in family law cases of fees and costs which a party thereto incurs in [1514]independent unconsolidated actions, coincidentally dealing with issues relating to or duplicating issues in the family law action.
Until the Legislature so acts, I would reverse the judgment on the sole ground that the juvenile proceedings in which wife seeks attorney fees did not grow out of the family law action and, hence, are neither a “proceeding related []to” a pending family law action nor a “subsequent proceeding” (following entry of judgment) therein within the meaning of section 4370. The lower court was, accordingly, without jurisdiction in the family law action to award wife fees she expended for legal services in those juvenile proceedings.11
Respondent’s petition for review by the Supreme Court was denied March 26, 1992.
Unless otherwise indicated, all subsequent statutory references are to the Civil Code.
This legislation in 1953 amended then-section 137.3, which was first added to the Civil Code in 1951. (Stats. 1951, ch. 1700, § 4, p. 3911.) A.B. 2438, inter alia, added the “proceeding related thereto” language to section 137.3, now incorporated in section 4370.
Attorney fees in annulment of void (present §§ 4400-4401) and voidable (present §§ 4425-4429) marriages, now governed by section 4456, were dealt with by former section 87 which, as pertinent, read: “The court shall have power to grant attorneys fees ... as provided by Section 137” in annulment actions to the party innocent of fraud or wrongdoing generating grounds for annulment. (Stats. 1947, ch. 951, § 1, p. 2220.) Present section 4456 relating to payment of attorney fees and costs in annulment actions allows them “in accordance with Section 4370 ...”
Since former section 137, in force at the time Kohn, supra, and like cases were decided, then applied to both divorce and annulment cases, the same principle extended to annulment actions, i.e., no attorney fees award would be granted if requested after completion of the legal services for which compensation was sought.
The 1951 version of section 137.3 generated authority focusing on its “[d]uring the pendency of any action” language. For example, a divorce action was found to be “pending” where the trial court was to determine whether payments, ordered to be made following agreement of the parties and entry of a judgment of divorce, were alimony and subject to modification; hence, the court could award wife attorney fees. (Dexter v. Dexter (1954) 42 Cal.2d 36, 44 [265 P.2d 873].)
See In re Marriage of Siller (1986) 187 Cal.App.3d 36, 45-47 [231 Cal.Rptr. 757], discussed infra.
A flood of litigation is conceivable on such issues as whether section 5122 (married persons are not liable for the damage caused by the other spouse unless liable if the marriage did not exist) is a bar to seeking fees in the example above posed.
The phrase “[djuring the pendency of any action,” with which A.B. 2438 began former section 137.3, now reads in section 4370: “[djuring the pendency of any proceeding under this part [the FLA] . . . .” This change in language does not change the analysis of these cases—that “pendency” includes proceedings growing out of the family law action.
Section 137.3 became section 4370 by means of the 1970 enactment of the FLA. (Stats. 1970, ch. 311, § 1, p. 705.) This recodification was not intended to effect any substantive change to the pre-1970 line of cases which defined “proceeding^] relating thereto” in this context: “This act does not constitute a change in, but is declaratory of, the existing law.” (Id., § 15, p. 706.)
In Green v. Uccelli (1989) 207 Cal.App.3d 1112, 1122-1123 [255 Cal.Rptr. 315], the same court held that the wife’s attorney could not be sued in a separate action for malicious prosecution, after the attorney sought and then withdrew an order to show cause re contempt in the dissolution action. Husband’s remedy was to seek attorney fees in the dissolution action under section 4370.5. The trial court could award attorney fees under sections 4370 and 4370.5. A later case, In re Marriage of Green (1989) 213 Cal.App.3d 14, 28, footnote 8 [255 Cal.Rptr. 315], suggested in dicta that the lawsuit in issue in Green v. Uccelli, and other lawsuits, might justify an award of fees under section 4370 since they were “related in some fashion to the dissolution proceeding.” Thus, a suggestion was simply made in dicta that if an issue was or should have been litigated in the dissolution proceeding, an award of fees under section 4370 might be proper.
To the same effect is Guardianship of Paduano (1989) 215 Cal.App.3d 346, 351-352 [263 Cal.Rptr. 589], which affirmed an award of fees under section 4370 where a guardianship proceeding was consolidated with a FLA dissolution proceeding, since the issue in the consolidated proceedings was the same: Who should receive physical custody of the minors. Since the proceedings had been properly consolidated, section 4370 applied; and the same issues would have been litigated in any event in the dissolution action. Here, by contrast, the dependency action was never consolidated with any pending dissolution proceeding; further, the issues litigated in the dependency action brought by the county concerned whether both parents were unfit due to child abuse, not the simple question of physical custody which had already been decided in prior dissolution proceedings. We, therefore, need not and do not decide whether the dicta in Marriage of Green and Paduano was well considered.
Paduano, in allowing fees in the family law case arising out of the consolidated guardianship proceeding concerning child custody (an action not brought under the FLA), on the rationale the issues were interlinked in the consolidated cases, seems difficult to rationalize in light of the statutory history of section 4370, Brink, supra, and the cases restricting attorney fees to proceedings “growing out of’ the family law action. Like other cases considering section 4370, Paduano has not analyzed the legislative history and intent concerning the “proceeding related thereto” language of that section and its predecessor statutes. Paduano appears to adopt the coincidental linkage of issues of child custody, existing in a separate guardianship action and a family law action, as a rationale for allowing fees under section 4370 against the unsuccessful petitioner in the guardianship, rather than analyzing whether fees were allowable because the guardianship action was joined with the family law action as in In re Marriage of Siller, supra, 187 Cal.App.3d at pages 45-47, or “[grew] out of’ the family law action. It seems obvious the aunt’s guardianship petition did not grow out of the family law action. She, like the county in our case, sought by an independent action to obtain custody of the child from both its parents, parties to the family law action. Neither parent [1513]could have recovered fees from the petitioner in the guardianship action. It is difficult to see how fees could nonetheless be awarded under section 4370 in the family law case, with which the guardianship was consolidated for trial, simply because each case coincidentally dealt with the issue of custody of a child. Neither Paduano nor the case at bench presents the situation where the exact issue to be litigated between the parties in a family law action is the subject of an independent consolidated action between those same parties. (See Crook v. Crook (1960) 184 Cal.App.2d 745, 747, 749 [7 Cal.Rptr. 892].) In such cases, attorney fees are properly awarded in the consolidated action because the independent action simply mirrors, as between the same parties, the same issue and claim for relief they will try in their family law action. Paduano, however, rationalizes its holding on an alternative theory: The family law court has continuing exclusive jurisdiction over custody awards of minors and, thus, may award fees in a consolidated proceeding where third parties seek letters of guardianship and custody of the minor whose custody is at issue in the family law action.
This case is predicated on the amendment in 1981 of section 4370 by the following emphasized language: “During the pendency of any proceeding under this part, the court may order any party, except a governmental entity, to pay . . . attorney’s fees . . . .” (Stats. 1981, ch. 715, § 1, p. 2816.)
In trying to hastily sweep under the rug all the relevant evidence as to the purpose of the statute (maj. opn., ante, p. 1494, fn. 4), the majority opinion misses the main point: There is absolutely no evidence the Legislature even contemplated, much less endorsed, the bizarre gloss which the majority opinion foists upon a statute which was narrowly crafted to achieve a particular purpose stated by the State Bar—which sponsored the legislation and shepherded it through to the Governor’s desk. Moreover, despite the majority opinion’s strange reliance on two unsigned student notes criticizing Sales v. Stewart, supra, 134 Cal.App. 661, that case has never been criticized or overruled by any court; and its holding that the purpose of a statute is the key to its interpretation is obviously correct. (Id. at p. 664.) “[T]he objective sought to be achieved by a statute as well as the evil to be prevented is of prime consideration in its interpretation.” (Western Oil & Gas Assn. v. Monterey Bay Unified Air Pollution Control Dist. (1989) 49 Cal.3d 408, 426 [261 Cal.Rptr. 384, 777 P.2d 157], internal quotation marks omitted; accord, In re Marriage of Morrison (1978) 20 Cal.3d 437, 447, fn. 6 [143 Cal.Rptr. 139, 573 P.2d 41] [explicitly relying upon a letter of transmittal to the Governor in interpreting another amendment to the FLA]; Roland Co. v. Walling (1946) 326 U.S. 657, 671 [90 L.Ed. 383, 391, 66 S.Ct. 413] [“[T]he Bill did not depart substantially from its original purpose. This purpose remains the key to the meaning of the words . . . .”]; 2A Sutherland on Statutory Construction (4th ed. 1984) Extrinsic Aids—Legislative History, § 48.11, pp. 322-323 [“Statements by other unofficial [sponsoring] groups and individuals occasionally have been admitted as interpretive aids. [Citing numerous cases including Sales v. Stewart, supra.] The statements are valuable only if the group or individual has sponsored the legislation and led it through the legislative process.”].) Indeed, Presiding Justice Kline recently relied, correctly, on such aids in ascertaining the purpose of a statute. (American Tobacco Co. v. Superior Court, supra, 208 Cal.App,3d at pp. 485-486.) We should do the same here.