Filed 9/12/16 Marriage of Elizabeth and Gregory G. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re Marriage of ELIZABETH and 

GREGORY G.

 B259276

 (Los Angeles County

ELIZABETH G.,

Appellant,

v.

GREGORY G.,

Respondent.

 Super. Ct. No. BD442597)

APPEAL from an order of the Superior Court of Los Angeles County, 

Christine Byrd, Judge. Affirmed.

Honey Kessler Amado for Appellant.

Law Offices of Sandra Segal Polin, Sandra Segal Polin; Trope & 

DeCarolis, Patrick DeCarolis Jr. and Melissa R. Fresquez for Respondent.

____________________________________
2

INTRODUCTION

Family Code section 20301 allows a party to a marital dissolution action and 

related proceedings to request attorneys’ fees from the other party to ensure both parties 

have adequate funds to properly litigate the controversy. A party may make a request for 

attorneys’ fees under section 2030 at any time in the proceeding.

In a prior appeal, In re Marriage of Elizabeth and Gregory G. (Mar. 17, 2014, 

B236719) [nonpub. opn.], Elizabeth G. challenged a restraining order issued by the 

family court that enjoined her from having any contact with her former husband, Gregory 

G., and her son for five years.2 We reversed that order and remanded for further 

proceedings. Elizabeth subsequently filed in the family court a request under Family 

Code section 2030 for attorneys’ fees incurred in the appeal and for attorneys’ fees 

incurred in the family court after the appeal. The court denied the request for appellate 

fees as untimely because the court concluded “the appeal is finished, i.e., it is no longer 

pending.” The court denied Elizabeth’s request for attorneys’ fees for post-appeal 

proceedings in the family court because the court found Elizabeth was not entitled to an 

award of attorneys’ fees under section 2030.

Elizabeth appeals from that portion of the family court’s order denying her request 

for attorneys’ fees incurred in the prior appeal, arguing that the court erred in finding her 

request untimely. Although we agree with her that the request was not untimely, we 

affirm because she has failed to show any prejudice or a miscarriage of justice as a result 

of the court’s order.

 

1 Undesignated statutory references are to the Family Code.

2 As is customary in family law cases, we refer to the parties by their first names for 

convenience and clarity. (See In re Marriage of Herr (2009) 174 Cal.App.4th 1463, 

1466, fn. 1.)
3

FACTUAL AND PROCEDURAL BACKGROUND

Elizabeth and Gregory were married in March 2005. Their son was born in July 

2005, and Elizabeth and Gregory separated in March 2006.

3 In connection with various

post-judgment proceedings, the family court on August 26, 2011 issued a five-year 

restraining order against Elizabeth. Elizabeth appealed from that order, and on March 17, 

2014 we reversed and remanded to the family court. (In re Marriage of Elizabeth and 

Gregory G. (Mar. 17, 2014, B236719) [nonpub. opn.].) We awarded costs on appeal to 

Elizabeth. The remittitur issued on May 20, 2014. 

On June 2, 2014 Elizabeth filed a memorandum of costs on appeal in the family 

court. The court clerk approved those costs on June 18, 2014. 

On June 4, 2014 Elizabeth filed in the family court a request for an order pursuant 

to Family Code section 2030 awarding attorneys’ fees for appellate counsel and related 

costs, as well as attorneys’ fees and costs for post-appeal proceedings in the family court. 

On July 23, 2014 the family court denied Elizabeth’s request for attorneys’ fees for 

appellate counsel because the appeal was “no longer pending.” The court also denied her 

request for costs on appeal because the costs claimed “were already awarded.” In ruling 

on Elizabeth’s request for attorneys’ fees for post-appeal proceedings in the family court, 

the court applied the factors set forth in section 2030 and related provisions and 

concluded that an award of fees was not necessary to ensure Elizabeth and Gregory had 

access to legal representation. 

The court invited Elizabeth to file a motion for reconsideration of its order 

denying fees incurred in the appeal, stating, “I could be mistaken.” Following 

Elizabeth’s motion for reconsideration, however, the court again denied Elizabeth’s 

 

3 Because this matter involves a minor whose parents share the same last name, we 

refer to them using their first names and last initial to protect the minor’s identity. (See 

Cal. Rules of Court, rule 8.401(a)(2) [requiring first names and last initials to protect the 

identity of juveniles in juvenile court proceedings].)
4

request for fees for appellate counsel, concluding that the request filed on June 4, 2014 

was untimely. 

Elizabeth filed a timely notice of appeal on September 30, 2014. Elizabeth

appeals only from that part of the family court’s order denying her request for appellate 

attorneys’ fees. She argues that her request was timely and that the family court’s order 

should be reversed and remanded for the court to determine whether she is entitled to 

such fees under section 2030. Gregory argues that the family court correctly concluded 

that Elizabeth’s request for appellate fees was untimely and that, even if the request were 

timely, any error was harmless because the court’s analysis under section 2030 in 

connection with Elizabeth’s request for attorneys’ fees for post-appeal proceedings 

applies equally to her request for appellate fees. We agree with Gregory’s second 

argument.

DISCUSSION

A. Governing Law and Standard of Review

“The purpose of an attorney fees award in a marital dissolution proceeding is to 

provide, as necessary, one of the parties with funds adequate to properly litigate the 

matter.” (In re Marriage of Bendetti (2013) 214 Cal.App.4th 863, 868.) Sections 2030 

and 2032 govern awards of attorneys’ fees in marital dissolution actions. Section 2030, 

subdivision (a)(1), states in pertinent part: “In a proceeding for dissolution of marriage, 

. . . and in any proceeding subsequent to entry of a related judgment, the court shall 

ensure that each party has access to legal representation, including access early in the 

proceedings, to preserve each party’s rights by ordering, if necessary based on the income 

and needs assessments, one party, . . . to pay to the other party, or to the other party’s 

attorney, whatever amount is reasonably necessary for attorney’s fees and for the cost of 

maintaining or defending the proceeding during the pendency of the proceeding.”

When a party requests attorneys’ fees under section 2030, the family court must 

make findings on (1) whether an award of attorneys’ fees is appropriate, (2) whether 
5

there is a disparity in access to funds to retain counsel, and (3) whether one party is able 

to pay for legal representation of both parties. (§ 2030, subd. (a)(2).) “If the findings 

demonstrate disparity in access and ability to pay, the court shall make an order awarding 

attorney’s fees and costs.” (§ 2030, subd. (a)(2).) 

Section 2032, subdivision (a), further provides that the family court may make an 

award of attorneys’ fees under section 2030 “where the making of the award, and the 

amount of the award, are just and reasonable under the relative circumstances of the 

respective parties.” The factors considered in determining what is “just and reasonable 

under the relative circumstances” include, to the extent relevant, the factors enumerated 

in section 4320 for determining spousal support. (§ 2032, subd. (b).) “The party seeking 

an award of need-based attorney fees has the burden of establishing need.” (In re

Marriage of Bendetti, supra, 214 Cal.App.4th at p. 868.) 

The court may award attorneys’ fees for services rendered “before or after the 

commencement of the [marriage dissolution] proceeding.” (§ 2030, subd. (b).) The court 

may also “augment or modify” an award for attorneys’ fees “as may be reasonably 

necessary for the prosecution or defense of the proceeding, or any proceeding related 

thereto, including after any appeal has been concluded.” (§ 2030, subd. (c).)

“‘On appeal, we review an attorney fee award under section 2030 for an abuse of 

discretion.’” (In re Marriage of Smith (2015) 242 Cal.App.4th 529, 532; see In re 

Marriage of Sorge (2012) 202 Cal.App.4th 626, 662.) To the extent the family court’s 

decision reflects an interpretation of a statute, however, it presents a question of law we 

review de novo. (In re Marriage of Dellaria (2009) 172 Cal.App.4th 196, 201; see In re 

Marriage of Smith, supra, at p. 532 [“we consider de novo any questions of law raised on 

appeal, but will uphold any findings of fact supported by substantial evidence”].) We 

will not reverse absent a showing that any error was prejudicial and that a different result 

probably would have occurred in the absence of the error. (In re E.M. (2014) 228 

Cal.App.4th 828, 852; In re Marriage of Steiner and Hosseini (2004) 117 Cal.App.4th 

519, 528-530.) “[T]here must be some reasonably specific articulated showing of a 
6

miscarriage of justice” to warrant reversal. (In re Marriage of Steiner and Hosseini, 

supra, 117 Cal.App.4th at p. 530, fn. 3].) 

B. The Family Court Erred in Ruling That Elizabeth’s Request for Appellate 

Attorneys’ Fees Was Untimely, but the Error Did Not Prejudice Elizabeth

1. Elizabeth’s Request for Appellate Attorneys’ Fees Was Timely

Elizabeth argues that her request for appellate attorneys’ fees under section 2030 

was timely because she filed it “during the pendency of the proceeding.” (See § 2030, 

subd. (a).) In particular, she contends that the “proceeding” includes her appeal from the 

family court’s order granting Gregory a restraining order, and that the applicable 

California Rules of Court authorize a party to request attorneys’ fees on appeal in family 

law matters within 40 days after the issuance of the remittitur by the Court of Appeal. 

Elizabeth argues that, because she filed her request within that time period, her request 

was timely.

Section 2030 applies to requests for attorneys’ fees “in a proceeding for 

dissolution of marriage.” (§ 2030, subd. (a).) The proceeding in which the family court 

issued a restraining order against Elizabeth was part of the marital dissolution 

“proceeding” between Elizabeth and Gregory. Indeed, the judgment of dissolution and 

the order granting the restraining order had the same case number.4 Thus, the question is 

 

4 Section 2030 also applies to a “proceeding subsequent to entry of a related 

judgment” (§ 2030, subd. (a)), which includes proceedings culminating in postjudgment 

orders such as orders modifying custody. (See Alan S., Jr. v. Superior Court (2009) 172 

Cal.App.4th 238, 251 (Alan S.) [“[s]ection 2030 applies to orders pending post-judgment 

matters, such as change-of-custody proceedings, just as much as it applies to litigation 

leading up to the initial trial of the family law case”].) The restraining order proceedings 

in this case, at a minimum, are similarly “related” to the judgment dissolving Elizabeth 

and Gregory’s marriage. (See Alan S., supra, at p. 251; Askew v. Askew (1994) 22 

Cal.App.4th 942, 964 [actions are “related” if they involve common questions of law or 

fact]; 11 Witkin, Summary of Cal. Law (10th ed. 2005) Husband and Wife, § 180, p. 246 

[“[t]he matters involved in the subsequent proceeding can be related to the prior 
7

whether Elizabeth filed her request for attorneys’ fees while the proceeding was 

“pending” under section 2030, subdivision (a). (See also § 2030, subd. (b) [attorneys’

fees and costs under section 2030 may be awarded for legal services rendered before or 

after the commencement of the proceeding].)5 

The proceeding on the restraining order was necessarily still “pending” at the time 

Elizabeth filed her request for appellate fees because her appeal did not end the 

proceeding. Indeed, in the prior appeal this court remanded the matter to the family 

court, which held additional hearings on the scope and duration of the order well beyond 

the date on which Elizabeth filed her request for attorneys’ fees, and the record of this 

contentious divorce case suggests the proceeding may still be pending. In any event, at 

the time Elizabeth filed her request for attorneys’ fees, the proceeding on the restraining 

order had not been finally determined and was still pending. (See Code Civ. Proc., §

 

proceeding in any manner”].) Thus, even if the restraining order proceedings were not 

part of the marital dissolution proceeding, section 2030 would still provide a basis for 

Elizabeth’s request for attorneys’ fees.

5 Elizabeth cites several authorities for the proposition that section 2030 authorizes 

family courts to award attorneys’ fees on appeal and that a successful appellant may file a 

request for appellate attorneys’ fees after the appeal has concluded. The cases cited by 

Elizabeth, however, assume without analysis that the party in that case had filed or could 

file a timely request for appellate attorneys’ fees. (See, e.g., In re Marriage of Jovel

(1996) 49 Cal.App.4th 575, 586; In re Marriage of Paulin (1996) 46 Cal.App.4th 1378, 

1385; In re Marriage of Colvin (1992) 2 Cal.App.4th 1570, 1582-1583.) And section 

2030, subdivision (c), relied on by Elizabeth for the proposition that a party may make a 

request for fees “after any appeal has been concluded,” does not apply here because that 

provision only applies where, unlike this case, there is an “original award for attorney’s 

fees” that the party is seeking to augment or modify. (See § 2030, subd. (c) [“[t]he court 

shall augment or modify the original award for attorney’s fees and costs as may be 

reasonably necessary for the prosecution or defense of the proceeding, or any proceeding 

related thereto, including after any appeal has been concluded”].) Nevertheless, that 

section 2030 authorizes a party to seek appellate attorneys’ fees is not controversial. (See

Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2016) ¶ 14:5, p. 

14-2 and ¶ 16:421, p. 16-139; 11 Witkin, Summary of Cal. Law, supra, § 179, pp. 245-

246.) 
8

1049 [“[a]n action is deemed to be pending from the time of its commencement until its 

final determination upon appeal, or until the time for appeal has passed”].) 

Elizabeth timely filed her request for appellate attorneys’ fees in the pending 

proceeding. The California Rules of Court governing motions for attorneys’ fees on 

appeal apply to cases arising under the Family Code. (See In re Marriage of Freeman

(2005) 132 Cal.App.4th 1, 9 [predecessors of California Rules of Court, rules 3.1702 and 

8.278(c)(1) applied to “all applications for attorney fees incurred on post-judgment 

appeals,” and the rules “make[ ] no exception for family law cases”].) California Rules 

of Court, rule 3.1702 provides that “[a] notice of motion to claim attorney’s fees on 

appeal . . . under a statute or contract requiring the court to determine entitlement to the 

fees, the amount of the fees, or both, must be served and filed within the time for serving 

and filing the memorandum of costs under rule 8.278(c)(1).” Rule 8.278(c)(1) in turn 

states, “Within 40 days after issuance of the remittitur, a party claiming costs awarded by 

a reviewing court must serve and file in the superior court a verified memorandum of 

costs.” Therefore, parties to a family law action have 40 days following the date the 

Court of Appeal issues the remittitur to request attorneys’ fees on appeal. (In re 

Marriage of Freeman, supra, 132 Cal.App.4th at p. 9; see Hogoboom & King, Cal. 

Practice Guide: Family Law (The Rutter Group 2016) ¶ 16:415, p. 16-137 [“[a] notice of 

motion claiming appellate attorney fees for services rendered after rendition of the 

judgment ordinarily must be served and filed within the time for serving and filing the 

memorandum of costs under [California Rules of Court, rule] 8.278(c)(1)”].) Because 

Elizabeth filed her request for appellate attorneys’ fees within the 40-day period 

authorized by California Rules of Court, rule 8.278(c)(1), her request was timely.

2. Elizabeth Has Not Shown That the Family Court’s Order 

Prejudiced Her

Elizabeth, however, has not articulated any prejudice or miscarriage of justice 

caused by the family court’s erroneous ruling that her request for appellate fees was 

untimely. (See In re E.M., supra, 228 Cal.App.4th at p. 852; In re Marriage of Steiner 
9

and Hosseini, supra, 117 Cal.App.4th at p. 530, fn. 3.) Elizabeth has not appealed from 

the portion of the order denying her motion for post-appeal attorneys’ fees incurred in the 

family court. In that portion of its order, which Elizabeth does not challenge, the family 

court applied the factors set forth in sections 2030 and 2032 and denied the request. The 

court first found there was no disparity in access to funds to retain counsel because both 

parties were able to retain counsel for the post-appeal proceedings in the family court, 

and Elizabeth had already paid $12,500 to her new counsel to represent her in those 

proceedings. The court next considered each party’s ability to pay for legal 

representation for the other. The court found that “[b]oth parties have very limited 

income based on their Income & Expense Declarations,” and that “neither party has the 

ability to pay for his/her own representation, much less the representation of both 

parties.” Finally, the court “considered whether the making of the award requested 

would be appropriate, just and reasonable under the relative circumstances of the 

respective parties, financial resources being only one factor,” and concluded that the 

evidence did not warrant making such an award. 

Elizabeth has not shown or even argued in her briefs that, had the court

determined her request for appellate attorneys’ fees was timely, the court would have 

reached a different conclusion under sections 2030 and 2032.

6 Indeed, Elizabeth 

 

6 In his respondent’s brief, Gregory argued that even if Elizabeth’s request was 

timely, the family court’s order denying the request was harmless because “the court did 

a full analysis of the factors that must be considered in determining a fee award pursuant 

to . . . section 2030, a ‘needs-based statute’ as Elizabeth acknowledges, and the court 

denied Elizabeth’s request for fees” in connection with her motion for post-appeal fees in 

the family court. (Emphasis and citation omitted.) Gregory again argued that “the court 

did an in-depth analysis of the factors set forth in . . . section 2030” before denying 

Elizabeth’s request for post-appeal fees in the family court, and that because the “same 

analysis applies to Elizabeth’s request for appellate fees, there is absolutely no 

probability that Elizabeth could have obtained a more favorable result” on her request for 

appellate fees. Elizabeth, although she recognized “the trial court found that there was no 

disparity in income between Elizabeth and Gregory and that neither party had the ability 

to pay for the legal representation of both parties,” did not respond to Gregory’s harmless 

error argument, other than to assert that this court should still “decide the issue of the 
10

submitted the same evidence in support of her request for post-appeal fees in the family 

court and her request for appellate fees, including her income, assets, and debts, as well 

as Gregory’s assets and obligations. Elizabeth has not shown or argued how the factors 

set forth in sections 2030 and 2032 could lead to any different result for the two requests 

for attorneys’ fees, given that the court would have been analyzing the same lack of 

disparity of access to funds, inability to pay, and relative circumstances for the same time 

period. Therefore, she has not shown any prejudice or a miscarriage of justice from the 

family court’s denial of an award of her appellate attorneys’ fees under section 2030.

DISPOSITION

The order is affirmed. The parties are to bear their costs on appeal. 

SEGAL, J.

We concur:

PERLUSS, P. J.

ZELON, J.

 

timeliness of the request for fees on appeal because it is an issue of public importance.” 

Nor did Elizabeth argue in her reply brief that the result may have been different because 

she requested $170,000 in family court fees and only $82,500 in appellate fees.