Smith v. Superior Court

[514]Opinion

WHITE, P. J. This petition challenges a trial court decision requiring the City and County of San Francisco to pay a father’s attorney’s fees and costs as respondent to an appeal brought by the city and county to enforce child support payments. On the basis of the decisions in County of Los Angeles v. Superior Court (1980) 102 Cal.App.3d 926 [162 Cal.Rptr. 636] and In re Marriage of Reyes (1979) 97 Cal.App.3d 876 [159 Cal.Rptr. 84], we have concluded that the court was without authority to issue such an order. We issue writ of mandate to require the order be set aside.

The proceedings below consisted of an action brought by the district attorney, on behalf of the custodial parent, a welfare recipient, to enforce a child support order from a 1963 dissolution (Civ. Code, § 4702). The district attorney obtained a small judgment but was barred from recovering most of the $17,000 in claimed arrearages because of laches and an oral agreement between the parties. He appealed the judgment.

Thereafter, real party in interest, the father, moved for an order providing him with attorney’s fees and costs related to the appeal. On October 24, 1980, the trial court issued an order requiring the city and county to pay $3,000 on account for real party’s attorney and to pay all costs “according to proof” and enjoining prosecution of the appeal until payment of attorney’s fees and costs for appeal. This petition followed, and we stayed the effect of the order, permitting the appeal to proceed.

Petitioner contends there was no statutory or case law authority for the court’s award against the city and county. The court purported to find authority in Civil Code section 4370 and in principles of fairness and equity, but acknowledged that the appellate court was likely to say that the statute did not apply.

Civil Code section 4370 provides that during proceedings connected with dissolution and child custody and support “the court may order the husband or wife, or father or mother, as the case may be, to pay such amount as may be reasonably necessary for the cost of maintaining or defending the proceeding and for attorneys’ fees, ...” It further authorizes such fees to be paid for proceedings after entry of judgment. The trial court’s theory of fairness was that since the city and county stood in the mother’s shoes in bringing the support enforcement action it should stand in her shoes for application of section 4370 as well.