Date: 10-22-2019

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

Case Number: B288233

Judge: Yegan, Acting P.J.

Court: California Court of Appeals Second Appellate District, Division Six on appeal from the Superior Court, City and County of Ventura

Plaintiff's Attorney: Debra A. Opri

Defendant's Attorney: Jeffrey D. Johnsen

Description: 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.)

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

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Defendant's Experts:

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