I concur in the majority opinion except for part 3. of the Discussion, from which I respectfully dissent.
Assuming that Family Code section 1101, subdivision (g), does provide for a mandatory award of attorney fees, the statute is not self-executing (and the majority does not hold that it is self-executing).1 If Edward did not ask the trial court for an award of attorney fees pursuant to that statute, then he cannot complain on appeal of the trial court’s failure to give him one. {In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 826 [79 Cal.Rptr.3d 588]; In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002 [64 Cal.Rptr.2d 383].) It is Edward’s burden, as appellant, to provide us with a record sufficient to demonstrate his entitlement to relief. (Rancho Santa Fe Assn. v. Dolan-King (2004) 115 Cal.App.4th 28, 46 [8 Cal.Rptr.3d 614].) Nothing in the record on appeal shows that Edward ever asked the trial court for an award of attorney fees pursuant to section 1101, subdivision (g). It is possible that he requested such an award orally at the hearing in July 2008, but he did not provide us with a transcript of that hearing. As appellant, Edward must bear the consequences of that failure. I therefore disagree with the majority’s decision not to treat the issue as forfeited. We should affirm the trial court’s decision not to award attorney fees in connection with Sandra’s breach of fiduciary duty.
I note in addition that section 1101, subdivision (g), is anomalous in several respects. First, I know of no other Family Code provision calling for a mandatory award of attorney fees. In general, attorney fee awards in marital dissolution actions are discretionary and based on need and ability to pay. (See §§ 2030-2032; In re Marriage of Duncan (2001) 90 Cal.App.4th 617, 629-630 [108 Cal.Rptr.2d 833].) Even fee awards imposed as sanctions are discretionary. (See § 271.) Second, as interpreted in the case law, subdivision (h) of section 1101 provides for a discretionary award of attorney fees based on conduct amounting to fraud, oppression, or malice, while subdivision (g) of *350section 1101 provides for a mandatory award of attorney fees based on conduct that might be wholly innocent. (See In re Marriage of Rossi (2001) 90 Cal.App.4th 34, 43 [108 Cal.Rptr.2d 270]; In re Marriage of Hokanson (1998) 68 Cal.App.4th 987, 993 [80 Cal.Rptr.2d 699].) Third, as a leading treatise observes, the statutorily imposed fiduciary duties in marital dissolution actions are extremely strict, making innocent violations easy to commit. (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2010) ¶ 8:618, p. 8-158.2 (rev. # 1, 2008).) A mandatory award of attorney fees, imposed regardless of the value of the asset at issue, is a harsh remedy for a violation that is merely technical and wholly innocent, as might often be the case, so it is unlikely the Legislature intended such a result.2
Because I conclude that Edward has forfeited the issue, in this case we need not decide whether, contrary to In re Marriage of Hokanson and In re Marriage of Rossi, subdivision (g) of section 1101 should be interpreted as providing for a discretionary rather than a mandatory award of attorney fees. But regardless of whether the statute as it stands is susceptible of such an interpretation, the Legislature might wish to consider amending the statute to make it unambiguously clear that the attorney fee award is discretionary, in conformity with the remainder of the Family Code and with what was likely the intent of the Legislature when it enacted the statute.
A petition for a rehearing was denied February 10, 2011, and on February 10, 2011, and February 24, 2011, the opinion was modified to read as printed above. Appellant’s petition for review by the Supreme Court was denied April 27, 2011, S191025.
All subsequent statutory references are to the Family Code.
I note, however, that before imposing a mandatory attorney fees award under subdivision (g) of section 1101, the trial court must “determine that the party has or is reasonably likely to have the ability to pay.” (§ 270.)