Marriage of Gallego CA4/1

Filed 7/20/21 Marriage of Gallego CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re the Marriage of GALLEGO
D077846
MARIA TERESA SALINAS
FERNANDEZ,
(Super. Ct. No. EFL18390)
Respondent,

v.

FRANCISCO GALLEGO GARCIA,

Appellant.

APPEAL from an order of the Superior Court of Imperial County, Juan
Ulloa, Judge. Affirmed.
Sondra S. Sutherland for Appellant.
No appearance for Respondent.
 INTRODUCTION
This appeal arises out of a marital dissolution proceeding that has been

pending for over five years. Francisco Gallego Garcia (Francisco)1 appeals
from the family court’s order denying his motion, under Code of Civil

Procedure section 473, subdivision (b),2 to set aside orders issued on July 17,
2019 that he pay child support and attorney fees to his ex-wife, Maria Teresa

Salinas Fernandez (Maria).3
Francisco contends the family court abused its discretion by treating the
motion as an appeal and denying it without weighing the evidence or applying
section 473, subdivision (b), to the evidence presented. He asserts the court’s
reasons for denying the motion do not represent a reasoned decision on the
merits. In the alternative, he contends the attorney fees order should be set
aside on the ground that the court violated his right to procedural due process.
Because the record does not support Francisco’s contentions, we affirm the
order denying his set-aside motion.

1 We use first names for ease of reference and clarity.

2 All statutory references are to the Code of Civil Procedure unless
indicated otherwise.

3 This appeal is limited to the denial of the set-aside motion pursuant to
section 473, subdivision (b). The propriety of the July 17, 2019 child support
and attorney fees orders are not before us. Maria did not file a respondent’s
brief and the Attorney General filed a letter stating that he would not be filing
a respondent’s brief because the issues raised by Francisco do not impact the
statewide child support program. Accordingly, we “decide the appeal on the
record, the opening brief, and any oral argument by the appellant.” (Cal. Rules
of Court, rule 8.220(a)(2).) The failure to file a respondent’s brief is not treated
as a default or a concession that the trial court erred; instead, we must
examine the record and points raised in the opening brief to determine if
reversible error occurred. (Hogue v. Hogue (2017) 16 Cal.App.5th 833, 835, fn.
1.)

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 FACTUAL AND PROCEDURAL BACKGROUND
I.
The Dissolution
Francisco and Maria had been married for almost 26 years when Maria
filed for divorce in February 2016. They had four children, ages 6, 13, 16, and
18. Maria, who became pregnant with the couple’s first child when she was 16
years old, did not complete high school and did not work during the marriage.
Francisco supported the family with rental properties he owned and managed
in Mexico and a party rental service he ran.
In March 2016, Maria filed a request for order (RFO) seeking orders on
child support, spousal support, and attorney fees. Specifically, she sought
guideline child support for the parties’ three minor children. She also sought
temporary spousal support and need-based attorney fees pursuant to Family
Code section 2030. In her supporting income and expense declaration (IED),
Maria indicated she was unemployed and estimated, based on her personal
knowledge, that Francisco earned a gross monthly income of $6,000. She
stated the parties’ combined household monthly living expenses were $4,992.
Maria also filed the parties’ joint income tax returns for 2013 and 2014, which
showed a total household income of $46,151 (or $3,846 monthly) in 2013 and
$54,670 (or $4556 monthly) in 2014.
Francisco filed a responsive declaration to Maria’s RFO and an IED in
April 2016. He identified his occupation as “business owner/rental property”
and stated that he earned a gross monthly income of $1,666, and the parties’
household monthly living expenses were $4,176.
At the hearing on Maria’s RFO in April 2016, the family court
determined that Francisco’s gross monthly income was $5,000 and Maria’s was
zero. The court ordered Francisco to pay Maria monthly guideline child

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support of $1,841 for the three minor children and monthly temporary spousal
support of $730, effective April 1, 2016. The court also ordered Francisco to
contribute $2,000 to Maria’s attorney fees.
In June 2016, the court issued custody and visitation orders and
modified monthly guideline child support to $1,766 to reflect a change in
timeshare.
In August 2016, Francisco filed an updated IED, stating his gross
monthly income had increased to $3,390 because he had “two new rental
incomes as of June 2016.”
Trial on the dissolution began in November 2016 and was conducted over
five days. On January 6, 2017, the family court terminated marital status and
made orders for the division of property, child custody and visitation, guideline
child support, spousal support, and attorney fees. The court once again
determined Francisco’s gross monthly income was $5,000 and Maria’s was
zero. It found the marital standard of living was “[m]edium to high” and that
the parties “spent double” their current income and had amassed more than
$80,014 in credit card and other unsecured debt. The court set monthly

guideline child support for the parties’ three minor children at $2,0794 and
spousal support at $622, effective February 1, 2017. Lastly, the court ordered
Francisco to pay $8,000 towards Maria’s attorney fees. A judgment of
dissolution incorporating these orders was entered March 20, 2017.
On July 18, 2018, Francisco filed an RFO to modify the orders for
parenting time, child and spousal support, asserting (among other reasons)
that his income had “substantially declined” because he “lost rental clients”

4 In March 2017, the eldest child subject to child support turned 18 and
guideline child support was reduced to $1,627 per month for the remaining two
minor children.

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“[d]ue to the Mexican peso devaluation’s [sic].” He filed an IED declaring an
average gross monthly income of $3,552.
On July 24, 2018, Maria filed a separate RFO requesting a move-away
order to relocate the two minor children to San Diego County, an upward
modification of guideline child support, and a $5,000 award of attorney fees.
On August 2, 2018, Maria responded to Francisco’s July 18 RFO with a
supporting declaration and IED. In her IED, Maria estimated Francisco’s
gross monthly income was $7,500, based on the trial court’s determination of
his income at trial in November 2016 “plus the monthly average of the $30,000
he had in cash.” In her supporting declaration, Maria alleged that:
“F[rancisco] has claimed a low income since the proceedings in this case began,
and he has previously been found by [the trial court] to have lied about his
income. F[rancisco] does not explain why his income is lower now.
F[rancisco’s] Income and Expense Declaration states that due to the ‘Mexican
peso devaluation, he has lost rental clients.’ . . . [T]his is untrue. . . . [A]ll the
rental properties owned by F[rancisco] and [his brother] are currently rented . .
. [and he] has other rental properties with other individuals in which he is also
co-proprietor, and for which he has never disclosed income.” Maria requested
$37,874.55 in attorney fees.
The hearings on both RFOs were continued several times, and the
parties continued to file additional information regarding their respective
incomes and expenses. In January 2019, Francisco updated his IED to show
$3,263 in average monthly rental income. Maria also filed an updated IED
estimating Francisco’s average gross monthly income to be $7,500. She further
stated that as of November 30, 2018, she had paid $52,570.80 in attorney fees
out of the sale proceeds for the family residence.

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 The court held a series of hearings on the RFOs in April, May and June
2019. During a hearing in May 2019, the court made an interim monthly
support modification based on a finding that Francisco earned $10,000 in
monthly income, stating that Francisco would have the opportunity to
challenge that finding at the next hearing. The court also ordered that
Francisco pay an additional $15,000 to cover Maria’s attorney fees and stated
that a final determination regarding attorney fees would be made at the next
hearing.
At the June 2019 hearing, over Francisco’s objection that the matter had
not been fully heard, the court indicated its readiness to make findings
regarding Francisco’s income and an additional attorney fees award. The court
found that Francisco failed to overcome its determination that he had at least
$10,000 in monthly income. After finding that Francisco caused the majority
of litigation costs based on his inability or failure to present evidence without
being compelled, the court ordered Francisco to pay another $55,000 to cover
Maria’s attorney fees. Francisco appealed from the family court’s July 17,

2019, child support and attorney fees orders, but later abandoned the appeal.5
II.
The Set-Aside Motion
In November 2019, Francisco filed a substitution of attorney. In
December 2019, Francisco’s new attorney filed an RFO to set aside or modify

the orders under section 473, subdivision (b).6 Francisco submitted a

5 We refer to the child support and attorney fees orders issued on July 17,
2019 as “the orders.”

6 Francisco’s RFO also cited Family Code section 2122 as grounds for
relief. Family Code section 2122 provides the grounds and timing for a motion
to set aside a judgment on certain enumerated grounds, including fraud,
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declaration and report by a forensic accountant showing that his income
averaged $3,304 per month in 2018 and $3,217 per month through September
30, 2019. In a sworn declaration, Francisco stated that the court issued the
orders against him through his mistake, inadvertence, surprise or excusable
neglect, and that the orders unexpectedly harmed him through no fault of his
own.
Francisco explained the court’s finding that he earned $10,000 per
month “caught [him] off guard and surprised” him. Francisco did not
understand the court could assume income from his banking activity and had
he known this, he would have hired a forensic accountant to aid the court in
accurately determining his income available for support, as he has now done.
Francisco expressed his surprise with the court’s award of over $90,000 in
attorney fees because Maria had only requested $5,000 in her July 24, 2018
RFO. He also claimed a lack of due process, “specifically, notice of the
proposed action and a full and fair opportunity to be heard before being
deprived of my inheritance money.” (Underscore in original.) He requested
that his support and attorney fees obligations be based on a correct calculation
of his income.
Appearing as a self-represented litigant on the set-aside motion, Maria
filed a responsive declaration. She stated that the court gave Francisco an
opportunity to file a brief regarding his income and ability to pay attorney fees.
She also questioned the documents that the forensic account relied upon in
determining Francisco’s monthly income. In a reply declaration, Francisco

perjury, duress, and mental incapacity. Francisco, however, does not contend
on appeal that the family court erred by denying relief under this statute, so
we need not address the issue further.

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reiterated his shock at the court’s finding that he had $10,000 in monthly
income.
At the hearing on Francisco’s set-aside motion in February 2020,
Francisco’s attorney argued mistake, inadvertence, surprise or excusable
neglect, and asserted that Francisco lacked notice that the court might find
Francisco earned $10,000 per month, or that he might owe over $90,000 in
attorney fees. The court regarded Francisco’s motion as “akin to a new trial, a
reconsideration, and a relitigating of an appeal that was withdrawn.” The
court observed its limited ability to “review[ ] matters that [were] already
decided.” The court also stated that it is not inclined to “set aside, reopen or
reconsider matters that were determined after contested [proceedings]” noting
that Francisco had an attorney, the court heard the evidence and the time for
appeal had passed. The court specifically noted: “[T]here are contested issues
of fact [regarding Maria’s efforts to find work] which are blended into a lot of
matters that the court cannot revisit because they are settled, including, for
example, the determination of income, the determination of reasonable
attorney fees and responsibility for that. Those are trial matters. Those are
judgment matters, and the appeals period has run.”
Francisco asserted that the court may be confusing an appeal raising
judicial error with a set-aside motion based on his mistake or excusable
neglect, stating that he failed to get a report from a forensic accountant earlier
based on his mistaken belief that the court would find his monthly income to
be $5,000 or less. The court stated it would not “revisit” past findings and
denied Francisco’s “request to set aside.” On June 1, 2020, the court entered
its findings and orders after hearing (FOAH) denying Francisco’s set-aside
motion. Francisco timely appealed from the June 1, 2020 FOAH.

8
 DISCUSSION
I.
No Abuse of Discretion in Denial of the Set-Aside Motion
A. Legal Principles
Section 473, subdivision (b), permits the trial court to grant relief from a
judgment, order or other proceeding taken against a party by “mistake,
inadvertence, surprise, or excusable neglect.” The party seeking relief must
show, by a preponderance of the evidence, that due to a mistake of fact or law
by the party or the party’s attorney, “ ‘or through some inadvertence, surprise
or neglect which may properly be considered excusable, the judgment or order
from which [the party] seeks relief should be reversed.’ ” (Kendall v. Barker
(1988) 197 Cal.App.3d 619, 623−624.) “[I]f a party shows that a judgment [or
order] has been taken against [the party] through [the party’s] mistake,
inadvertence, surprise or excusable neglect the court may grant relief. Or it
may not. It has discretion. But if a party fails to show that a judgment has
been taken against [the party] through [the party’s] mistake, inadvertence,
surprise or excusable neglect the court may not grant relief. It has no
discretion.” (Iott v. Franklin (1988) 206 Cal.App.3d 521, 528.)
“The standard for appellate review of an order denying a motion to set
aside under section 473 is quite limited. A ruling on such a motion rests
within the sound discretion of the trial court, and will not be disturbed on
appeal in the absence of a clear showing of abuse of discretion, resulting in
injury sufficiently grave as to amount to a manifest miscarriage of justice.
Where a trial court has discretionary power to decide an issue, an appellate
court is not authorized to substitute its judgment of the correct result for the
decision of the trial court.” (In re Marriage of Eben-King & King (2000) 80
Cal.App.4th 92, 118, fn. omitted.) “Moreover, all presumptions will be made in

9
favor of the correctness of the order, and the burden of showing abuse is on the
appellant.” (Lint v. Chisholm (1981) 121 Cal.App.3d 615, 620.)
B. No Showing That the Family Court Failed to Exercise or Abused Its
Discretion
Francisco argues the family court failed to exercise its discretion under
section 473, subdivision (b), constituting an abuse of discretion and reversible
error. He concedes the court listened to his attorney’s arguments and reviewed
the declarations on the record, but claims that the court treated the motion as
an appeal, that it failed to weigh the evidence and arguments asserted as
grounds for relief, and it failed to apply that evidence to section 473,
subdivision (b). He contends the court’s refusal to set aside the orders
prejudiced him by causing substantial injury. The record, however, does not
support Francisco’s assertions.
1. Francisco’s Income
In his declaration supporting the motion, Francisco asserted the court’s
finding that he earned $10,000 per month surprised him because he “had no
reason to believe the court would suddenly find” he earned that amount out of
confusion regarding his income and did not understand that the court could
assume income from his bank deposits. Francisco stated he would have hired a
forensic accountant to aid the court had he received notice that the court
contemplated finding that he had $10,000 in monthly income. Francisco
repeats this argument on appeal, claiming that the history of the litigation,
Maria’s contentions, and his experience dealing with the family law judge did
not place him on notice that the court might find that he earned $10,000 a
month. He contends that the court’s shift from finding that he made $5,000 a
month to twice that amount came as a complete surprise and he could not have
anticipated that the court would make such a finding based solely on his
banking activity.

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 “The term ‘surprise,’ as used in section 473, refers to ‘ “some condition or
situation in which a party . . . is unexpectedly placed to his injury, without any
default or negligence of his own, which ordinary prudence could not have
guarded against.” ’ ” (State Farm Fire & Casualty Co. v. Pietak (2001) 90
Cal.App.4th 600, 611.) Regarding inadvertence or neglect, “ ‘[t]o warrant relief
under section 473 a litigant’s neglect must have been such as might have been
the act of a reasonably prudent person under the same circumstances. The
inadvertence contemplated by the statute does not mean mere inadvertence in
the abstract. If it is wholly inexcusable it does not justify relief.’ ” (Hearn v.
Howard (2009) 177 Cal.App.4th 1193, 1206.)
The record does not support Francisco’s purported surprise regarding the
court’s income finding, or excusable neglect in failing to hire a forensic
accountant. In the March 2017 dissolution judgment, the court found
Francisco’s monthly income to be $5,000. In August 2018 and January 2019,
Maria’s IEDs estimated Francisco’s gross monthly income at $7,500, consisting
of the $5,000 that Francisco earned each month, plus a monthly average of
$30,000 that Francisco had in cash.
A February 2019 declaration from Maria’s attorney stated that in 2018,
one of Francisco’s bank accounts averaged $25,796.80 in monthly deposits. In
December 2018, this account received a $78,830.50 deposit. Maria’s attorney
noted that these large deposits contradicted Francisco’s assertions regarding
vacant rental properties and a struggling business. A March 2019 declaration
from Maria’s attorney reported that a statement for one of Francisco’s bank
account showed that in April 2018 Francisco deposited $16,530, of which
approximately $13,000 had been deposited in cash. Based on this new
information, Francisco’s monthly deposits from January 2018 to June 2018,
averaged $9,002.16.

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 In a May 2019 declaration regarding his finances, Francisco stated that
he would be inheriting an investment account worth $352,855 but claimed that
litigation held up the inheritance. Francisco asserted that his bank deposits
either were accounted for elsewhere, or did not reflect gross rental property
income because he sometimes took out money for non-business purposes and
then returned the money to the account.
At the May 9, 2019 hearing, Maria’s attorney stated that Francisco was
supposed to file a brief on May 3, explaining “the deposits that [they] had
found.” Counsel argued: “We had done our own analysis, but Francisco has
his own explanation for what his income should be for the court’s
determination. [¶] But there’s no effective way to get that out in testimony in
any reasonable amount of time, so the order last time, by stipulation, was that
he would have some sort of statement as to what his position was regarding
what we agree are his substantial deposits. . . . [¶] So that was due on the
3rd, and we don’t have it yet. [¶] . . . [¶] My client’s position is how much more
of an opportunity do we need to give him to explain this. [¶] From his
perspective, these deposits didn’t even exist at first, then they’re revealed and
then now they have explanations.”
As a solution for Francisco’s income, Maria’s attorney suggested that
because inconclusive information existed regarding Francisco’s earnings, “the
court may feel comfortable that [Francisco’s] earning as much as he was before
his representation or reduction at trial, which is 10,000 a month instead of
5,000.” Counsel continued: “But, honestly, I think the evidence supports more
than that. But, as I said, my offer for [Francisco’s attorney] is maybe he wants
to orally explain what his brief is going to say.” Francisco’s attorney then
confirmed that the court wanted to resolve these issues that day by issuing
orders.

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 After a recess, Francisco’s attorney indicated that due to the
“complexity” of the issue, he could not provide the court with an oral
explanation regarding Francisco’s income that would allow the court “to make
an actual finding with respect to [Francisco’s] income.” However, after
discussion with the court, Francisco’s attorney never suggested the need for a
forensic examination of Francisco’s deposits or income. Rather, toward the end
of the hearing the court required that Francisco provide financial information
to Maria’s attorney by May 13, 2019 and stated that all other matters would be
finalized on May 31. At the end of the hearing the court stated:
“We had hoped that we would have a better picture of the
response to the allegations on income in order to address the
ability of [Maria] to prepare for the final trial step. We don’t
have that. [¶] We do have some parameters. We know
pretty effectively that [Francisco’s] income is no less than --
based on the evidence we’ve heard so far, subject, of course to
adjustment -- I think the evidence supports and concludes
that his income is no less than $10,000 a month, that child
support guidelines should be adjusted based on that
amount . . . .”

When Francisco’s attorney asked whether the court had made an order,
the court clarified that it made “an interim monthly support modification”
based on Francisco’s monthly income of $10,000 pending the next hearing and
that Francisco would have the opportunity to challenge that finding at that
time. The court minutes for this hearing set Francisco’s monthly income at
$10,000.
Thus, approximately one month before the June 7, 2019 hearing where
the court made the orders based on its finding that Francisco had $10,000 in
monthly income, Francisco knew that the court would count deposits into his
bank accounts as income and he had the burden to explain that these deposits
did not constitute income. However, we located nothing in the record

13
suggesting that Francisco sought a continuance during this one-month period
to hire a forensic accountant to explain his bank deposits.
At the June 7, 2019 hearing where the court made the challenged orders,
Francisco did not request a continuance to allow him the opportunity to retain
a forensic accountant. Even after Maria’s attorney suggested during closing
argument the need for a possible continuance to “really understand
[Francisco’s] economic circumstances,” Francisco did not request more time.
When the court indicated its readiness to make a finding regarding Francisco’s
income, Francisco’s attorney objected to the court making an income finding on
the ground that the matter had not been fully heard. Counsel never indicated,
however, what more evidence Francisco would present, and never requested a
continuance to hire a forensic accountant. This record does not support
Francisco’s claim that the family court denied him a meaningful adversarial
process.
This record also provides important context for the family court’s
comments that Francisco’s set-aside motion amounted to a new trial or an
appeal. At the time of the hearing, the court had presided over the parties’
dissolution for four years. Having handled the case from its inception, the
court had a deep knowledge of the matter, including its discussions with
counsel regarding Francisco’s monthly income. The court impliedly rejected
Francisco’s professed surprise regarding its $10,000 monthly income finding
based on its knowledge of the record, and instead made a finding that
Francisco “had the opportunity to present evidence and he chose not to present
evidence.”
Accordingly, we reject Francisco’s contention that the family court
abused its discretion by denying him relief under section 473, subdivision (b),
regarding his monthly income.

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 2. Attorney Fees Award
In his set-aside motion, Francisco also claimed surprise when the court
awarded over $56,000 in additional attorney fees to Maria, noting that Maria
had only requested $5,000 in her July 24, 2018 RFO. The record establishes
that Francisco had notice of Maria’s continuing request for a need-based
contribution towards her increasing attorney fees.
In her July 24, 2018 RFO seeking a move-away order and an upward
modification of guideline child support, Maria sought $5,000 in attorney fees.
In her August 2, 2018 responsive declaration to Francisco’s July 18, 2018 RFO
to modify the orders for parenting time, child and spousal support, Maria
sought $37,874.55 in attorney fees. In her January 2019 IED, Maria stated
that she owed her attorneys $52,570.80 in fees. In a February 2019
declaration from her attorney, Maria represented she had incurred $60,158.66
in attorney fees since July 18, 2017.
At the April 10, 2019 hearing, Maria’s attorney raised the issue of
attorney fees, stating that this issue “has yet to be ordered in this long
proceeding, and I think perhaps it will create incentive to bring this to a close
if we finally determine what the cost is going to be.” The court noted that
Maria’s attorney fees from July 18, 2018 to February 13, 2019 amounted to
$60,115.66.
Francisco’s attorney suggested releasing to Maria’s attorney
approximately $10,000 that he had received from selling the community home
and suggested that the parties discuss what would be ordered at the conclusion
of the matter. The court found this proposal problematic because the matter
had been pending since 2016 and “there’s a lot of discussion about how much
money [Francisco] has, that he has access to pay for attorney fees.” The court

15
later stated “[w]e have an agreement to release $10,000 to be paid for [Maria’s]
attorney fees.”
After Francisco’s attorney noted that Francisco had inherited money, the
court stated that these funds were not available for support but were available
for attorney fees. The court reiterated, “[w]e’re agreeing to release this
$10,000 until we can fully flesh these issues out” and stated that additional
attorney fees would be awarded “pending further proceedings where we’re
going to flesh out more of [Maria’s] ability to have access to counsel and to pay
fees.” Francisco’s attorney never objected to Maria’s continuing request for
attorney fees but asked for additional time to allow his client to liquidate
assets.
In a May 2019 declaration, Maria’s attorney stated that, after entry of
judgment in March 2017, Maria had incurred over $80,000 in attorney fees.
At the May 9, 2019 hearing, Francisco’s attorney expressed his understanding
that Maria had an ongoing request for attorney fees and that Maria’s attorney
“made very clear . . . he’s going to keep attempting to get attorney fees every
time he can which is his prerogative.” When the court turned to attorney fees,
Maria’s attorney argued that his client should “receive every penny” in
attorney fees that she paid, stating that attorney fees to date amounted to
$84,098.36. After a discussion regarding attorney fees awards to Maria to
date, the court confirmed that Maria would be seeking an additional $64,000
attorney fees award. At the end of the hearing, the court ordered that
Francisco pay an additional $15,000 to cover Maria’s attorney fees and stated
that a final determination regarding attorney fees would be made on May 31
“at which time we will have a complete, as clear as reasonably possible picture
of the financial condition for the court to make an analysis of the ability to
secure fees.”

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 At the June 7, 2019 hearing, Maria’s attorney stated that: “Francisco’s
income profile is not a simple matter. It is a constantly evolving position that I
believe I can demonstrate is false.” Maria’s attorney expressed his preference
that the court make an order on attorney fees. The court indicated its
readiness to make findings regarding Francisco’s income and attorney fees.
The court found that Francisco failed to overcome its determination that he
had at least $10,000 in monthly income. After finding that Francisco caused
the majority of litigation costs based on his inability or failure to present
evidence without being compelled, the court ordered Francisco to pay Maria
another $55,000 in need-based attorney fees pursuant to Family Code section
2030.
This record shows that Maria did not limit her potential attorney fees
award to the $5,000 pled in her July 24, 2018 RFO and that Francisco knew
Maria would be seeking additional attorney fees up to $64,000. Accordingly,
Francisco failed to carry his burden of demonstrating a basis for relief from the
attorney fees award under section 473, subdivision (b).
In summary, the family court did not err in denying Francisco’s motion
for relief under section 473, subdivision (b).
II.
Francisco Failed to Show a Procedural Due Process Violation
“ ‘In a contested proceeding, no court may render judgment without
conforming to the constitutional guarantees which afford due process of law.
[Citation.] Due process requires that all parties be notified of the facts and
issues in dispute, that each party be afforded a fair opportunity to present
evidence in open court, and that judgment be rendered based on an evaluation
of the evidence on each side, findings of fact and conclusions of law.’ ” (Carr v.
Kamins (2007) 151 Cal.App.4th 929, 936.) What constitutes procedural due

17
process is not absolute. (In re Matthew P. (1999) 71 Cal.App.4th 841, 850.)
“Due process is a flexible concept which depends upon the circumstances and a
balancing of various factors.” (In re Jeanette V. (1998) 68 Cal.App.4th 811,
817.) We independently consider whether the proceedings below complied with
the constitutional guarantee of procedural due process. (Conservatorship of
Christopher A. (2006) 139 Cal.App.4th 604, 609–610.)
As an additional ground for relief, Francisco claims the attorney fees
award violated his right to procedural due process because Maria’s July 24,
2018 RFO indicated that she sought a $5,000 attorney fee award and he
believed this sum was the maximum fee award that could be assessed against
him. He notes that Maria never amended her RFO to request a higher amount
and claims she did not provide him with notice that his legal exposure would
exceed $5,000.
Although Francisco correctly states that Maria never amended her July
24, 2018 RFO to request an attorney fees award exceeding $5,000, he ignores
that Maria’s August 2, 2018 response to his RFO requested $37,874.55 in
attorney fees. The record also shows Francisco had notice that his legal
exposure could exceed $5,000. In a February 2019 declaration, Maria’s
attorney alerted Francisco that Maria had incurred $60,158.66 in attorney fees
since July 18, 2017. At the April 10, 2019 hearing, Francisco did not contest
the court’s belief that money Francisco inherited could be used to satisfy an
attorney fees award to Maria, nor did he object to Maria’s continuing request
for attorney fees. At the May 9, 2019 hearing, Francisco’s attorney expressed
his understanding that Maria had an ongoing request for attorney fees.
The law supports the understanding of Francisco’s attorney. A family
court has express authority to “inquire into and render any judgment and
make orders that are appropriate concerning . . . [t]he award of attorney fees

18
and costs.” (Fam. Code, § 2010, subd. (f).) The court is empowered to order the
payment of fees and costs as between the parties, based on their “relative
circumstances” to ensure a parity of legal representation in the action. (Fam.
Code, §§ 2030, 2032.) Maria requested an additional attorney fees award in
both her declaration in support of her July 24, 2018 RFO and her August 2,
2018 response to Francisco’s RFO based on the “disparity” in their incomes.
Subdivision (c) of Family Code section 2030 explicitly provides: “The court
shall augment or modify the original award for attorney[ ] fees and costs as
may be reasonably necessary for the prosecution or defense of the proceeding,
or any proceeding related thereto, including after any appeal has been
concluded.” Thus, it is well established that “ ‘[n]eed-based awards may be
augmented or modified as necessary during the entire pendency of the case,
consistent with the parties’ “relative circumstances.” ’ ” (In re Marriage of
Cryer (2011) 198 Cal.App.4th 1039, 1056.)
Moreover, at the conclusion of the proceeding, the court has a duty “to
make a just and reasonable award of attorney fees and costs, considering the
circumstances of the parties.” (In re Marriage of Green (1992) 6 Cal.App.4th
584, 593.) An attorney fees award in a dissolution proceeding is left to the
sound discretion of the trial court. (In re Marriage of Sullivan (1984) 37 Cal.3d
762, 768.) Here, the record shows Francisco had notice of Maria’s continuing
request for attorney fees and an opportunity to object to those fees. On this
record, we discern no due process violation.

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 DISPOSITION
The June 1, 2020 FOAH denying Francisco’s set-aside motion under
section 473, subdivision (b), is affirmed.

DO, J.

WE CONCUR:

McCONNELL, P. J.

BENKE, J.

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