Unreported / Non-Citable
Background
Sara W. (Wife) petitioned for a domestic violence restraining order (DVRO) against her ex-husband, Michael W. (Husband), on December 8, 2023, alleging his December 2023 Facebook posts harassed her and citing an August 17, 2022 physical altercation. The posts revealed her affair, called her a narcissist, accused her of neglecting their child, threatened to "unleash the storm and dive into tearing [Wife] apart," and disclosed portions of a confidential Child Protective Services report. The court granted a temporary DVRO barring Husband from posting about Wife under any of her names and restricting his travel with their minor child outside the nine Bay Area counties without permission.
After five half-day hearings in 2024, the superior court issued a final statement of decision on November 27, 2024, denying the DVRO. It found insufficient evidence that Husband disturbed Wife's peace or engaged in coercive control, credited her testimony that she was "distraught and upset" about the posts, but held the posts did not constitute abuse. It found Husband violated the temporary order's travel restrictions, though not to the level of abuse under the DVPA. The court dissolved the temporary order yet restrained Husband from leaving the Bay Area with the child and prohibited him from referencing Wife's name in any form in future social media or public posts.
Husband sought attorney's fees as the prevailing respondent under Family Code section 6344, subdivision (b). At a May 5, 2025 hearing addressing only that provision—after denying both parties' section 271 sanctions requests and stating it was not addressing need-based fees—the court found "insufficient evidence to rise to the level of preponderance of the evidence" that the petition was frivolous or solely intended to abuse, intimidate, or cause unnecessary delay. It nevertheless awarded Husband $20,000, citing no authority apart from section 6344. Wife appealed.
The Court’s Holding
The Court of Appeal reversed. Section 6344, subdivision (a) mandates fees for a prevailing petitioner, but subdivision (b) permits fees for a prevailing respondent "only if" the respondent proves by a preponderance of the evidence that the petition was frivolous or solely intended to abuse, intimidate, or cause unnecessary delay. The phrase "only if" introduces a necessary condition, the court explained, citing California v. Hodari D. (1991) 499 U.S. 621, 628. Because the superior court unambiguously found that Husband failed to prove that condition, it lacked authority to award him fees.
The court rejected Husband's claim that the findings were contradictory. A finding of "a lot of abuse, intimidation, and unnecessary delay" is not a finding that the petition was "solely intended" to achieve those ends, and the trial court immediately added: "whether it is to the level of preponderance of the evidence, I can't find that. I don't find that."
Substantial evidence supported the trial court's finding: it acknowledged the August 2022 violence and Wife's bruising, credited her testimony about the posts, granted the temporary order, ordered Husband to remove her name from his posts, and reaffirmed the travel restrictions. With no other statutory basis and under the American rule that litigants bear their own fees absent statute or agreement, the $20,000 award was an abuse of discretion. The disposition reverses the fee order and directs the parties to bear their own costs on appeal.
Key Takeaways
- Family Code section 6344, subdivision (b) allows fees for a prevailing DVRO respondent only if the respondent proves by a preponderance of the evidence that the petition was frivolous or solely intended to abuse, intimidate, or cause unnecessary delay.
- The phrase "only if" in a statute states a necessary condition that must be satisfied before the court has authority to act.
- Finding that a petition involved "abuse, intimidation, and unnecessary delay" is not the same as finding it was "solely intended" to accomplish those ends.
- Under the American rule, litigants ordinarily pay their own attorney's fees unless a statute or agreement provides otherwise, including in family law cases.
- A trial court abuses its discretion when it awards fees without statutory authority after expressly finding the statutory criteria were not met.
Why It Matters
The decision reinforces that trial courts must identify a statutory or contractual basis for any attorney's fee award in family law cases. When a statute conditions fee authority on specific findings, as section 6344, subdivision (b) does, a court cannot award fees after expressly finding those conditions unsatisfied.
The opinion also preserves access to the courts for DVRO petitioners by distinguishing a petition that involved some abusive or dilatory conduct from one "solely intended" to abuse, intimidate, or delay, protecting petitioners with mixed motives from fee liability.