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Standard of Review-Burden-Must affirmatively demonstrate trial court abused its discretion in refusing to order attorney’s fees requested-Marr. of Falcone & Fyke

B.     Denial of Kathey’s Attorney’s Fees Motion

Kathey also argues that the trial court erred in denying her oral motions for attorney’s fees to allow her to hire counsel to represent her in connection with the contempt motion and the anticipated sanctions motion.  Kathey made the motions pursuant to Family Code section 2031, subdivision (b)(1), which allows that such a motion may be made orally, without notice, “[a]t the time of the hearing of the cause on the merits.”[2]  Kathey claims that the trial court erred in denying the motion because the court failed to take into consideration her need for the funds.  Richard argues that the two denials are not appealable orders, that Kathey’s oral motion was not made “[a]t the time of the hearing of the cause on the merits,” and that, in any event, Kathey failed to demonstrate that the trial court’s ruling was an abuse of discretion.  Assuming that the orders are appealable, we detect no error on this record. 

As Kathey repeatedly insists, her motions were for “need-based” attorney’s fees.  Since the trial court refused her request for a continuance, Kathey did not need the funds to hire an attorney to represent her at the hearing.  And, since no motion for sanctions had actually been filed, Kathey did not have an immediate need to hire counsel for those proceedings.  Furthermore, Family Code section 2032 requires the trial court to make its attorney’s fees orders based, among other things, upon the relative financial needs of the parties.  (Fam. Code, § 2032, subds. (a), (b).)  In order to make an award of attorney’s fees under Family Code section 2032 the trial court must have some evidence that the moving party needs the money.  “The burden of establishing such necessity is upon the applicant.”  (Straub v. Straub (1963) 213 Cal.App.2d 792, 799.)  Here, although there is some evidence pertaining to Richard’s income, there is no evidence in the portion of the record that was before the trial court at the time Kathey made the motions that shows the parties’ relative financial positions.  Indeed, on the record we have, had the court chosen to make the orders Kathey sought, they would have been subject to reversal for insufficiency of the evidence.  Thus, Kathey has failed to affirmatively demonstrate that the trial court abused its discretion in refusing to order the attorney’s fees she requested. 

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