California Court of Appeals, Second District, Sixth Division
In re the Marriage of MARK and TERRI BITTENSON.
v.
TERRI BITTENSON, Respondent. MARK BITTENSON, Appellant,
Superior Court County of Ventura No. D360477. Joann Johnson,
Judge.
Debra
A. Opri, for Appellant.
Law
Offices of Jeffrey D. Johnsen and Jeffrey D. Johnsen for
Respondent.
YEGAN,
ACTING P. J.
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 a marital dissolution action. (Fam. Code, § 2034,
subd. (a).)[1] 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. We affirm and
conclude that section 2034, subdivision (c) permits a family
law court to reduce or limit a FLARPL after the lien is
recorded.
Procedural
History
In
2013, husband filed a petition to dissolve his 26-year
marriage with Terri Bittenson (wife). During the dissolution
proceeding, she moved out of the family residence so it could
be sold by a receiver. In 2017, husband's trial attorney
recorded three FLARPLs totaling $250, 000[2] as security for the
payment of his on-going attorney fees. Wife filed objections
claiming that the FLARPL notices were defective, that the
$250, 000 lien amount exceeded husband's community
property share of the escrow proceeds, and that some of the
FLARPL funds were being used to pay husband's defense
costs in a civil action filed by wife. Husband's
opposition papers stated that the net escrow proceeds was
$622, 000 and that the $250, 000 lien did not encumber
wife's community half interest ($311, 000) of the sale
proceeds. Husband's trial attorney acknowledged that she
was representing husband in a domestic violence action filed
by wife (Terri Bittenson v. Mark Bittenson (Super.
Ct. Ventura County, 2015, No. 56-2015-00475085-CU-PO-VTA))
and had already billed $207, 000 in attorney fees “for
family law issues.” Counsel stated that husband would
incur thousands of dollars in additional fees on
“additional litigation concerning these FLARPLs, ...
having to respond to what can only be a moot argument as my
office has now released it's liens, as a condition to
being paid.”
Relying
on section 2034, the trial court found there was good cause
to limit the FLARPLs to protect wife's community interest
in the escrow proceeds. The trial court ordered husband's
trial attorney to deposit $100, 000 of the funds into a
blocked account and released the remaining $150, 000 in
satisfaction of the FLARPLs.
FLARPLs
- What's in a Name?
“Shakespeare
asked, ‘What's in a name?'” (Corona
Fruits & Veggies, Inc. v. Frozsun Foods,
Inc. (2006) 143 Cal.App.4th 319, 321.) We supply an
answer only for FLARPLs which have been characterized as a
“risky” way to pay one's attorney's fees.
(Turkanis & Price, supra, 213
Cal.App.4th at p. 352.) The name should have a qualifier
appended: “conditional” FLARPL.” A family
law treatise warns family law practitioners to “Use
Secured Liens Sparingly:[¶] ... [T]he
‘security' provided by recording the [FLARPL] can
be illusory. For example, the liened property's value may
decline substantially due to market fluctuations, or the
facts of the case may ‘eat up' [the] client's
interest therein. Moreover, a court may revisit the propriety
of the lien at any time and, in an appropriate case,
order the lien expunged....” (See Hogoboom & King,
Cal. Practice Guide: Family Law (The Rutter Group 2019)
¶ 1:302, p. 1-115.)
We
review for abuse of discretion. (In re Marriage of
Turkanis & Price (2013) 213 Cal.App.4th 332, 345
(Turkanis & Price).) Pursuant to section 2033,
either party may encumber his or her interest in community
real property to pay reasonable attorney's fees for
purposes of retaining or maintaining legal counsel in a
proceeding for dissolution of marriage, for nullity of
marriage, or for legal separation of the parties. (§
2033, subd. (a).) The encumbrance is known as a FLAPRL and
“attaches only to the encumbering party's interest
in the community real property.” (Ibid.)
“Section 2033 sets forth notice requirements and the
procedure for obtaining a FLARPL. To be valid, a notice of
lien must be served personally or on the other party's
attorney of record at least 15 days before recordation. The
notice must include a description of the real property, the
party's belief as to fair market value, the amount of the
attorney fees and other information. (§ 2033, subd.
(b).) Further, the statute sets forth the procedure for an
objection by the unencumbering spouse. (§ 2033, subd.
(c).)” (In re Marriage of Ramirez (2011) 198
Cal.App.4th 336, 343.)
The
trial court found that the section 2033 notice defects were
moot because the FLARPLs were recorded before wife filed her
objections. Section 2033 provides that the nonencumbering
spouse may file ex parte objections to the lien prior to
its recording. (§ 2033, subd. (c).) That ship has
sailed. After the FLARPL is recorded, section 2034
subdivision (c) vests the family law court with the
“‘jurisdiction to resolve any dispute
arising from the existence of a [FLARPL].'
[Citation.]” (Turkanis & Price,
supra, 213 Cal.App.4th at p. 350 [trial court may
expunge a FLARPL after it is recorded].)Section 2034,
subdivision (a) provides in pertinent part: “On
application of either party, the court may deny the [FLARPL]
lien described in Section 2033 based on a finding that the
encumbrance would likely result in an unequal division of
property because it would impair the encumbering party's
ability to meet his or her fair share of the community
obligations or would otherwise be unjust under the
circumstances of the case. The court may also for good
cause limit the amount of the [FLARPL] lien.” (Italics
added.)
Husband
argues there is no evidence that the $250, 000 lien will
result in an unequal division of property or impair
husband's ability to meet his fair share of the community
obligations. Husband further complains that wife's
objections only address the third FLARPL for $50, 000. Wife,
however, requested that the trial court consider all three
FLARPLs and called it a “robbery of the community
assets.” The trial court was asked to limit the $250,
000 lien because husband and wife were contesting the marital
separation date which substantially ...