Torres v. Cox CA6

Filed 5/20/15 Torres v. Cox CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

MATTHEW TORRES, H040679 (Santa Clara County Appellant, Super. Ct. No. 113CP020578)

v.

CYNTHIA COX,

Respondent.

In this child custody dispute, appellant Matthew Torres (father) appeals the trial court’s order awarding $10,000 in attorney fees to Cynthia Cox (mother) under Family Code section 7605.1 We reverse and remand. I. BACKGROUND Mother and father are embroiled in a custody battle over their daughter. In August 2013, mother moved the court to order father to pay her $25,000 under section 7605 to cover past and future attorney fees. In a supporting declaration, mother declared father makes $95,000 a year while she has no income. Mother also submitted the declaration of her attorney declaring mother had incurred over $8,000 in attorney fees to date. Mother’s attorney further declared that she anticipated “several thousands of dollars in additional fees will be incurred.” That declaration was not made under penalty of perjury and did not state the place of execution as required by Code of Civil Procedure section 2015.5.

1 Unspecified statutory references are to the Family Code.

In response, father argued he lacked the ability to pay for attorneys for both himself and mother. He submitted an income and expense declaration and paystubs showing his monthly expenses, including child support, exceed his monthly income by nearly $1,500. Father’s monthly expenses included $60 for eating out; $60 for entertainment, gifts, and vacation; $105 for cable; and $600 to repay a loan from his parents. Father’s income and expense declaration indicated he owed over $30,000 in attorney fees and had assets totaling $1,700. At an October 23, 2013 hearing, mother’s attorney was permitted to cross-examine father. He testified that his parents would not permit him to defer his monthly loan repayments to them because they are retired. Mother testified that father told her he could defer repaying the loan. At the end of the hearing the court noted mother had “no realistic access to any assets or funds” and father was “looking at a negative each month.” The court found that, “[a]s a relative matter, [father has] a superior access to funds in the form of income and such.” Accordingly, the court orally ordered father to pay mother $10,000 in attorney fees at a rate of $500 per month and directed mother’s attorney to prepare a written order. An unsigned minute order dated October 23, 2013, memorializes the order. A written order, dated October 25, 2013, was filed on December 19, 2013. On that written order, boxes are checked indicating the court found (1) a disparity between the parties in the ability to pay for legal representation, (2) “[t]he party requested to pay attorney’s fees and costs has or is reasonably likely to have the ability to pay for legal representation for both parties,” and (3) “[t]he requested attorney’s fees and costs are reasonable and necessary.”