Marriage of Gilbert and Magana CA1/1

Filed 10/20/15 Marriage of Gilbert and Magana CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

In re the Marriage of JOHN GILBERT and MARIA TERESA MAGANA.

JOHN GILBERT, A143313

Appellant, (San Mateo County v. Super. Ct. No. FAM0109022) MARIA TERESA MAGANA, Respondent.

At the end of extended proceedings regarding child support payments, respondent Maria Teresa Magana requested separate awards of attorney fees from her former husband, appellant John Gilbert, under Family Code sections 271 and 2030.1 In connection with the request under section 2030, Magana submitted evidence that during the latter stages of the proceeding, she was unemployed, while Gilbert was paid a significant salary. The family court granted the request for fees under section 2030, but it denied the request for section 271 sanctions. Finding the award supported by substantial evidence, we affirm. I. BACKGROUND The parties separated after 20 years of marriage in 2010, and their divorce became final in December 2011. In April 2014, Magana filed a motion seeking an award of

1 All statutory references are to the Family Code.

attorney fees under section 2030 in connection with proceedings concerning the modification of Gilbert’s child support obligations. At the time, Magana was recovering from two major surgeries and had been laid off from her job as a kindergarten teacher. Gilbert’s income in the prior year had been over $160,000. Based on this disparity, the motion sought $1,500 in connection with proceedings that had occurred to that point. At a hearing prior to the filing of the motion, in February 2014, the family court had suggested informally that Gilbert pay section 2030 attorney fees of $1,650 to Magana to avoid the need for a motion, but Gilbert had insisted Magana make a formal request. When the parties appeared for a hearing on the attorney fees motion and other matters in July 2014, Magana’s attorney, Michael Lowy, made an oral request for attorney fees under section 271, which permits the award of fees as a sanction against an uncooperative party. (Id., subd. (a).) As Lowy explained, “we’ve spent a lot of money unnecessarily because of the failure to . . . meet and confer [in] good faith.” The court declined to rule on the fee request and directed Lowy to submit a declaration regarding the allegedly uncooperative conduct and his billing rate and time expended. Lowy’s declaration, filed in July 2014, updated Magana’s income information, relevant to the request for fees under section 2030, and detailed the history of the proceedings. By that time, Magana had obtained a new teaching job, anticipating an annual salary of $109,000. Gilbert’s annual salary was $143,500, but he was also eligible for a discretionary bonus, which had been $22,000 in the prior calendar year. The declaration acknowledged that Magana was a one-seventh owner of family agricultural property in El Salvador, but it said she received no income from the property. According to Lowy, Magana had been forced to incur $20,000 in attorney fees in connection with the current child support proceedings. He believed Gilbert’s inattentive and uncooperative conduct while representing himself in the litigation had increased Magana’s expenses. The declaration concluded by requesting $6,118.75 in attorney fees actually incurred and an additional $2,500 in sanctions. Extensive documentation accompanied the declaration.