Unreported / Non-Citable
Background
Humberto Velasco and Stephanie Vasquez are the parents of a daughter who was four years old when Velasco filed a custody petition in September 2020. In March 2021, the family court granted Vasquez’s motion to quash service for lack of jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act because she and the child had lived in Arizona for more than six months before the petition. The court denied Vasquez’s associated request for fees and costs under Family Code sections 271 and 7605. This court reversed that denial in July 2023 and remanded for required findings, but Vasquez later dismissed that fee request because she believed Velasco could not pay.
In March 2024, Vasquez filed two motions to compel discovery responses and sought fees under Civil Discovery Act provisions. Velasco filed a notice of nonappearance for the May 2024 hearing. The family court granted the motions, awarded Vasquez $9,744 in attorney fees, and set a November 24, 2024 payment deadline. Velasco neither paid nor appealed that award. Instead, he sought modification in October 2024, citing his finances, his understanding of former counsel’s advice about appearing, and his objections to the fees. Vasquez opposed modification and submitted a limited-scope representation notice showing that counsel had been retained to file opposition documents, not to attend the hearing.
At a January 2025 hearing, Velasco testified that he lacked sufficient income to pay. After considering the parties’ pleadings and declarations, the family court denied modification, noted that Velasco had had ample time to arrange a payment plan, and ordered payment within 30 days, with 10 percent legal interest thereafter. It denied Vasquez’s request for additional Family Code section 271 sanctions. Velasco appealed after the minute order; because a signed order followed, the appellate court treated the appeal as timely filed after entry of that order.
The Court’s Holding
The Court of Appeal affirmed. It first rejected Velasco’s contention that the family court improperly granted fees for Vasquez’s discovery motions after denying fees connected with her earlier motion to quash. The argument was forfeited because he supplied no legal authority and had not raised it in the family court. It also failed on the merits: the March 2021 ruling concerned fees on the motion to quash, whereas the May 2024 ruling granted a new, unrelated request for fees incurred in bringing motions to compel discovery responses. The later ruling therefore did not reverse the earlier fee determination.
Velasco’s related claim that the family court departed from a prior ruling without explanation or evidentiary support was likewise forfeited for lack of legal authority and failed because no such departure occurred. His apparent argument that evidence of limited financial means required modification was also forfeited because he cited no authority supporting modification of an existing fee award based on inability to pay. More fundamentally, he identified no authority requiring the family court to consider ability to pay before initially imposing attorney fees as a sanction for discovery abuses under the Civil Discovery Act.
The court explained that a lower court’s judgment or order is presumed correct, that presumptions favor the order on matters as to which the record is silent, and that error must be affirmatively shown. Velasco supplied no basis to conclude that the family court erred in denying modification. He also abandoned other arguments made in his modification request by omitting them from the appeal. The disposition affirmed the order and awarded Vasquez her costs on appeal; it did not disturb the family court’s denial of her request for additional sanctions.
Key Takeaways
- A party challenging an attorney fee award on appeal must support the challenge with legal authority and preserve the argument in the trial court.
- Fees incurred for later discovery motions were a new and unrelated request, not a reversal of the earlier denial of fees associated with the motion to quash.
- Velasco identified no authority requiring consideration of his ability to pay before the family court imposed discovery sanctions or permitting later modification on that ground.
- The appellate court applied the presumption that the challenged order was correct and required Velasco to affirmatively demonstrate error.
- The order denying modification was affirmed, Vasquez received costs on appeal, and arguments not renewed on appeal were treated as abandoned.
Why It Matters
The decision illustrates how forfeiture and the presumption of correctness can defeat an appeal from the denial of a requested modification of discovery-related attorney fees. It also distinguishes a new fee request arising from later discovery disputes from an earlier fee ruling involving a different motion, rather than treating the later award as an unexplained reversal.
The opinion is designated not to be published in the official reports and is subject to California Rules of Court, rule 8.1115. Its analysis addresses the arguments presented in this appeal and does not establish a general rule that financial circumstances are always irrelevant to attorney fee decisions.