In re the Marriage of Mark and Terri Bittenson, Mark Bittenson v. Terri Bittenson

Family law practitioners should read this opinion with the

following in mind: “[F]amily law court is a court of equity . . . .”

(E.g., In re Marriage of Boswell (2014) 225 Cal.App.4th 1172,

1174.) Appellate attack upon a discretionary trial court ruling is

an “uphill battle.” (Estate of Gilkison (1998) 65 Cal.App.4th

1443, 1448.)

Mark Bittenson (husband) appeals a pretrial discretionary

order limiting his $250,000 pendente lite lien for attorney fees in

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a marital dissolution action. (Fam. Code, § 2034, subd. (a).)1

Husband’s trial attorney recorded three Family Law Attorney’s

Real Property Liens (FLARPLs) on the family residence before it

was sold. (§ 2033, subd. (a).) The trial court reduced the lien

because the parties were contesting the date of marital

separation and the full $250,000 lien amount could impair the

overall equal division of community assets and debts. We affirm

and conclude that section 2034, subdivision (c) permits a family

law court to reduce or limit a FLARPL after the lien is recorded.

Procedural History

In 2013, husband filed a petition to dissolve his 26-year

marriage with Terri Bittenson (wife). During the dissolution

proceeding, she moved out of the family residence so it could be

sold by a receiver. In 2017, husband’s trial attorney recorded

three FLARPLs totaling $250,0002 as security for the payment of

his on-going attorney fees. Wife filed objections claiming that the

FLARPL notices were defective, that the $250,000 lien amount

exceeded husband’s community property share of the escrow

proceeds, and that some of the FLARPL funds were being used to

pay husband’s defense costs in a civil action filed by wife.

Husband’s opposition papers stated that the net escrow proceeds



1 All statutory references are to the Family Code unless

otherwise stated.

2Husband’s attorney filed a $100,000 FLARPL on February

8, 2017, a $100,000 FLARPL on April 6, 2017, and a $50,000

FLARPL on October 02, 2017. None of the FLARPLs were

personally served on wife as required by section 2033, subdivision

(b). On November 6, 2017, a month before escrow closed, the trial

court ordered that the escrow proceeds be placed in a blocked

account to be distributed at a later date.

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was $622,000 and that the $250,000 lien did not encumber wife’s

community half interest ($311,000) of the sale proceeds.

Husband’s trial attorney acknowledged that she was representing

husband in a domestic violence action filed by wife (Terri

Bittenson v. Mark Bittenson (Super. Ct. Ventura County, 2015,

No. 56-2015-00475085-CU-PO-VTA)) and had already billed

$207,000 in attorney fees “for family law issues.” Counsel stated

that husband would incur thousands of dollars in additional fees

on “additional litigation concerning these FLARPLs, . . . having to

respond to what can only be a moot argument as my office has

now released it’s liens, as a condition to being paid.”

Relying on section 2034, the trial court found there was

good cause to limit the FLARPLs to protect wife’s community

interest in the escrow proceeds. The trial court ordered

husband’s trial attorney to deposit $100,000 of the funds into a

blocked account and released the remaining $150,000 in

satisfaction of the FLARPLs.

FLARPLs – What’s in a Name?

“Shakespeare asked, ‘What’s in a name?’” (Corona Fruits &

Veggies, Inc. v. Frozsun Foods, Inc. (2006) 143 Cal.App.4th 319,

321.) We supply an answer only for FLARPLs which have been

characterized as a “risky” way to pay one’s attorney’s fees.

(Turkanis & Price, supra, 213 Cal.App.4th at p. 352.) The name

should have a qualifier appended: “conditional” FLARPL.” A

family law treatise warns family law practitioners to “Use

Secured Liens Sparingly: [¶] . . . [T]he ‘security’ provided by

recording the [FLARPL] can be illusory. For example, the liened

property’s value may decline substantially due to market

fluctuations, or the facts of the case may ‘eat up’ [the] client’s

interest therein. Moreover, a court may revisit the propriety of

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the lien at any time and, in an appropriate case, order the lien

expunged . . . .” (See Hogoboom & King, Cal. Practice Guide:

Family Law (The Rutter Group 2019) ¶ 1:302, p. 1-115.)

We review for abuse of discretion. (In re Marriage of

Turkanis & Price (2013) 213 Cal.App.4th 332, 345 (Turkanis &

Price).) Pursuant to section 2033, either party may encumber his

or her interest in community real property to pay reasonable

attorney’s fees for purposes of retaining or maintaining legal

counsel in a proceeding for dissolution of marriage, for nullity of

marriage, or for legal separation of the parties. (§ 2033, subd.

(a).) The encumbrance is known as a FLAPRL and “attaches only

to the encumbering party’s interest in the community real

property.” (Ibid.) “Section 2033 sets forth notice requirements

and the procedure for obtaining a FLARPL. To be valid, a notice

of lien must be served personally or on the other party’s attorney

of record at least 15 days before recordation. The notice must

include a description of the real property, the party’s belief as to

fair market value, the amount of the attorney fees and other

information. (§ 2033, subd. (b).) Further, the statute sets forth

the procedure for an objection by the unencumbering spouse.

(§ 2033, subd. (c).)” (In re Marriage of Ramirez (2011) 198

Cal.App.4th 336, 343.)

The trial court found that the section 2033 notice defects

were moot because the FLARPLs were recorded before wife filed

her objections. Section 2033 provides that the nonencumbering

spouse may file ex parte objections to the lien prior to its

recording. (§ 2033, subd. (c).) That ship has sailed. After the

FLARPL is recorded, section 2034 subdivision (c) vests the family

law court with the “‘jurisdiction to resolve any dispute arising

from the existence of a [FLARPL].’ [Citation.]” (Turkanis &

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Price, supra, 213 Cal.App.4th at p. 350 [trial court may expunge a

FLARPL after it is recorded].) Section 2034, subdivision (a)

provides in pertinent part: “On application of either party, the

court may deny the [FLARPL] lien described in Section 2033

based on a finding that the encumbrance would likely result in an

unequal division of property because it would impair the

encumbering party’s ability to meet his or her fair share of the

community obligations or would otherwise be unjust under the

circumstances of the case. The court may also for good cause limit

the amount of the [FLARPL] lien.” (Italics added.)

Husband argues there is no evidence that the $250,000 lien

will result in an unequal division of property or impair husband’s

ability to meet his fair share of the community obligations.

Husband further complains that wife’s objections only address

the third FLARPL for $50,000. Wife, however, requested that the

trial court consider all three FLARPLs and called it a “robbery of

the community assets.” The trial court was asked to limit the

$250,000 lien because husband and wife were contesting the

marital separation date which substantially affected the value of

the community assets and debts.3 (See Hogoboom & King, Cal.

Practice Guide: Family Law, supra, ¶ 8:110.1, p. 8-45.)

The trial court found “there are substantial differences in

the parties’ positions as to the date of separation, the value of

assets and debts and the characterization of the same.



3 Husband submitted a community property balance sheet

based on an October 23, 2010 separation date. Using that

separation date, a forensic accountant opined that wife owed

husband a $475,290 equalization payment. After husband and

wife bifurcated the issue for purposes of trial and a status only

judgment, the trial found that the date of separation was May 15,

2013. That is the subject of a separate appeal. (B294136.)

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[Husband] asserts a date of separation of 2010, which increases

his reimbursement rights and decreases the value of the

community interest in his deferred compensation plans. Further,

there is a settlement from his former employer which may have a

significant community property interest if he does not prevail on

the date of separation issue. [Wife] has raised an issue of

[husband’s] withdrawal of funds from a community 401(k)

account. [Husband] contends the funds were used to pay

community debts; however this has not yet been adjudicated. If

[wife] prevails on her date of separation, the employment

settlement and the 401(k) withdrawal, there will not be sufficient

funds to equally divide the community estate without invading

[husband’s] deferred compensation plan as [husband] suggests.

These funds may not be immediately available to [wife] without

incurring taxes and penalties which may result in an unequal

distribution of the community estate.”

Husband argues that the trial court lacked jurisdiction to

limit the FLARPL lien because the $250,000 was released to

husband’s trial attorney when escrow closed. But that occurred

to facilitate the sale and was done at husband’s request. The

trial court ordered that the $250,000 be held in a blocked account

until the lien amount was adjudicated and retained jurisdiction

over the entire $250,000. Under the doctrine of equitable

estoppel “[h]e who takes the benefit must bear the burden.” (Civ.

Code, § 3521.) Here, $150,000 of the escrow funds (the benefit)

was released to husband’s trial attorney but the remaining

$100,000 (the burden) will remain in a blocked account until the

marital separation date is determined. “[T]he existence of . . .

estoppel . . . is a question of fact for the trial court, whose

determination is conclusive on appeal unless the opposite

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conclusion is the only one that we can reasonably draw from the

evidence. [Citations.]” (Turkanis & Price, supra, 213

Cal.App.4th at p. 353.)

Section 2034, subdivision (c) provides that the trial court

has “jurisdiction to resolve any dispute” arising from the

FLARPLs. (Italics added.) “[T]his broad catchall provision gives

the court jurisdiction to resolve disputes over the propriety of

existing FLARPLs, whenever they may arise. The plain language

of the subdivision does not impose any timing requirement or

otherwise limit the court’s ability to revisit the propriety of a

FLARPL. Moreover, as this subdivision is separate from other

parts of the statutory scheme relating to the ex parte objection

process (§ 2033, subd. (c)), it contemplates disputes apart from

the ex parte objection process. . . and . . . contemplates disputes

when the FLARPL is already in ‘existence.’” (Turkanis & Price,

supra, 213 Cal.App.4th at pp. 350-351.) That would include

disputes after the FLARPL is recorded. A trial court may revisit

the propriety of the lien at any time and, in an appropriate case,

expunge or limit the lien. (Hogoboom & King, Cal. Practice

Guide: Family Law, supra, ¶ 1:302, p. 1-115.)

We reject the argument that section 2033, which addresses

the ex parte objection procedure before a FLARPL is recorded,

restricts the trial court’s discretion to limit the amount of a

FLARPL after it is recorded. “To read [section 2034, subdivision

(c)] as merely referencing to the ex parte objection process [i.e.,

section 2033, subdivision (c)] and no other disputes would render

it superfluous, and we are to avoid interpretations that render

any part of a statute superfluous. [Citation.]” (Turkanis & Price,

supra, 213 Cal.App.4th at p. 351.)

The judgment is affirmed. Wife is awarded costs on appeal.