Family law practitioners should read this opinion with the following in mind: “[F]amily law court is a court of equity . . . .” (E.g., In re Marriage of Boswell (2014) 225 Cal.App.4th 1172, 1174.)
Appellate attack upon a discretionary trial court ruling is an “uphill battle.” (Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1448.) Mark Bittenson (husband) appeals a pretrial discretionary order limiting his $250,000 pendente lite lien for attorney fees in 2 a marital dissolution action. (Fam. Code, § 2034, subd. (a).)
Family Coxde Section 2034, subdivision (c) provides that the trial court has “jurisdiction to resolve any dispute” arising from the FLARPLs. (Italics added.) “[T]his broad catchall provision gives the court jurisdiction to resolve disputes over the propriety of existing FLARPLs, whenever they may arise. The plain language of the subdivision does not impose any timing requirement or otherwise limit the court’s ability to revisit the propriety of a FLARPL. Moreover, as this subdivision is separate from other parts of the statutory scheme relating to the ex parte objection process (§ 2033, subd. (c)), it contemplates disputes apart from the ex parte objection process. . . and . . . contemplates disputes when the FLARPL is already in ‘existence.’” (Turkanis & Price, supra, 213 Cal.App.4th at pp. 350-351.) That would include disputes after the FLARPL is recorded. A trial court may revisit the propriety of the lien at any time and, in an appropriate case, expunge or limit the lien. (Hogoboom & King, Cal. Practice Guide: Family Law, supra, ¶ 1:302, p. 1-115.)
Husband’s trial attorney recorded three Family Law Attorney’s Real Property Liens (FLARPLs) on the family residence before it was sold. (§ 2033, subd. (a).) The trial court reduced the lien because the parties were contesting the date of marital separation and the full $250,000 lien amount could impair the overall equal division of community assets and debts. The California Court of Appeal affirmed and concluded that section 2034, subdivision (c) permits a family law court to reduce or limit a FLARPL after the lien is recorded.
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* Disclaimer – Robert Rodriguez is licensed to practice only in the State of California & this analysis is applied only under State of California law. Robert D. Rodriguez is also admitted to practice in the U.S. District Courts, Central, Northern & Eastern Districts of California. Robert Rodriguez has practiced in the State of California Court of Appeal.
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