In a dispute over who must pay attorney’s fees during divorce proceedings, what matters is not what the parties earn, but what they are capable of earning.

When Jennie (Hearn) Hooker filed for a divorce, she asked the court to make her husband Rockford Hearn pay $45,000 toward her attorney’s fees. The couple was embroiled in a dispute over the dissolution of their marriage and her financial assets from a trust and 401(k). At the trial court level, Jennie asked for and received an order that said Rockford must pay her $15,000. He appealed.

(The parties will here be referred to by their first names of “Jennie” and “Rockford” or “Rocky” as the opinion did, in order to avoid confusion).

Rocky contested both the dissolution of the marriage and the order to pay part of Jennie’s attorney’s fees that were earned during the trial and subsequent appeals. Jennie claimed she could not pay because she had been unemployed since the COVID pandemic and had used up all her unemployment benefits. Her other assets, including a trust, were also depleted. She told the court she needed $8,600 a month to take care of her home and two children.

Rocky, a lawyer, was representing himself during the divorce proceedings. As such, he did not have to pay for attorneys as Jennie did. Shortly before a hearing on their case, he told the court that he was unemployed and thus could not pay any of Jennie’s attorney’s fees. He also said that Jennie had over $1 million in assets and trust income, so she could pay for her attorney herself. Jennie disputed that Rocky was actually unemployed. She said her assets were “illiquid,” stemming primarily from her home. Rocky was ordered to show proof that he was no longer employed and not receiving severance pay.

After several negotiations about Jennie’s fee requests, she asked the court to issue a fee order based not on Rocky’s current income, but on his earning capacity. He argued this would be contrary to the law. He also asked for additional financial information from Jennie. At the next hearing, the court said the fee matters should be settled under the provisions of Family Code Sections 2030 to 2032. These Code sections say that each party in a divorce shall have access to legal representation, and payment of attorney’s fees shall be “based on the respective incomes and needs of the parties and any factors affecting the parties’ respective abilities to pay.”

Applying the Code, the court reviewed the evidence and found that although Jennie did have equity in her home, she had no liquid assets and did have expenses of about $8,600 per month as she claimed. The court also found that Rocky was a member of the California Bar in good standing, but was currently unemployed. Also, he failed to discuss his employment prospects, and he was the one who kept filing appeals in which he represented himself, while Jennie had to pay for her attorney.

The court ordered Rocky to pay Jennie $25,000 at the rate of $2,000 per month. Rocky then filed a motion to “vacate, reconsider, modify and/or provide other relief from” the court’s last order. A unanimous opinion written by Justice Douglas P. Miller of Division Two of California’s First Appellate District rejected Rockford’s motion and affirmed the order of Marin County Superior Court Judge Verna Adams.

Miller began his opinion by citing the “disentitlement doctrine,” which gives an appellate court the

“…inherent power . . . to dismiss an appeal by a party that refuses to comply with a lower court order.” Despite Rockford’s admission that he never paid Jennie anything, the District Court failed to find that he “willfully obstructed or failed to comply” with the trial court’s payment order.

Rocky argued that his request for an evidentiary hearing and an opportunity to cross-examine Jennie was wrongfully denied. But the appellate opinion concluded that the trial judge did not err when she denied the evidentiary hearing because the matters had been “exhaustively briefed” and she was familiar with the case and its issues. Miller concluded that “Rocky fail to show that he was prejudiced by the denial of his request for an evidentiary hearing.”

Rocky then argued that the trial court abused its discretion by failing to follow Family Code 2030 and that the award to Jennie had to be reversed because there was no evidence he could pay her fees. The Court of Appeal was not persuaded because Rocky was a member in good standing of the California Bar who was representing himself during all the appeals while Jennie had to pay for lawyers. Miller wrote that the trial court had made “all the findings required by statute,” and Rocky’s inability to pay was “not supported by evidence.” In fact, Miller wrote, “his calculation of his disposable income bears no resemblance to the formula set out in section 4059 .”

The opinion concluded, “In sum, Rocky has not shown that the trial court failed to make the required findings to support its award of fees. Nor has he shown that the fee award is not supported by substantial evidence.” Rocky “downplay his earning capacity” and “his evidence from his qualifications and history of employment…support a reasonable expectation that he will again be gainfully employed as an attorney.”

Rocky will have to pay since the court believes that he can and should.