This blog will refer to In Re Marriage of Tharp and the decision of the Court of Appeals of California, Fifth District regarding the appeal filed by the Wife (Mary Beth) which was granted on several points in a decision certified for publication. A published version of this decision may be found here. This is a decision that is must reading for California Certified Family Law Specialist attorneys and students of California Family Law as it provides a model as to how family law cases should be handled at the trial level.
The decision publication that I reviewed was 41 pages. This posting will discuss an isolated issue and hopefully future posting will describe other important points raised in the Appellate case. Briefly, the parties were married for more than ten years ("long term marriage"); they have three minor children; the Husband is a self employed businessman with substantial earnings (not fully described in the decision but reportedly over $100,000 or $150,000 and possibly much more).
The Wife immediately, upon the filing of the divorce petition by Husband, initiated discovery requests requiring Husband to supply documents and information as to income, expenses, property and debt. Wife also filed a request for attorney's fees as she had little or no income and Husband was in control of the marital income. When Husband did not respond to the discovery requests, Wife filed motions to compel discovery by the Husband and repeated her requests for attorney's fees. The trial court initially granted some of Wife's discovery motions; however the award for fees was quite small--in an amount that later was referred to by Wife's attorney as inadequate to allow Wife the same legal representation as Husband enjoyed.
Recently my office has prevailed on motions to compel in two different cases; however no fees were awarded for the work in causing the other party to be ordered to produce discovery that he/she previously failed to produce. So, without saying anything as to the identity of these cases, or the specifics of these cases, I’m just saying that, in my experience, an award of attorney’s fees that does not reimburse your client for the cost of the motion to compel, is a fee order that discourages discovery in Family Law cases. There are many examples in the San Diego Superior Court were substantial fee orders are made. The Tharp decision points out that Family Code section 271, and other sections providing for fees, should be used in appropriate circumstances.
There is generally a recognized policy by the courts to move divorces along towards resolution. Proper attorney’s fee orders and sanction fee orders, in response to motions to compel discovery, are tools that, when properly used, will move a family law case towards conclusion. The Tharp decision should be read as it applies to attorney’s fees to “even the playing field” in divorces; the finding that a family law case is “complex” and the consequences of such a finding; the fiduciary duty to disclose all income and property; the use of sanctions to direct a case towards the disclosure of income and assets and to discourage wrongful, delay tactics; and many other issues that are surprisingly common in California divorce cases. Future postings are planned to discuss other issues in this case.
The California divorce lawyers of the Law Office of Thomas M. Huguenor enjoyed receiving and reviewing this published decision.
