First District, Division Two Rejects Importation of These Requirements Into Family Code section 271.
At last, we have a post for you family law practitioners on a fee award issue.
Family Code section 271 authorizes fees/costs awards to the extent that a party frustrates the policy of the law to promote settlement of litigation and reduce the cost of litigation by encouraging cooperation between the parties and attorneys. (See In re Marriage of Freeman, 132 Cal.App.4th 1, 5 (2005).) In the case we discuss below, Former Husband (in pro se) appealed $11,882.21 in fees awarded as sanctions under section 271 and for vexatious conduct (with the vast majority awarded under section 271). Curiously, while the matter was on appeal, Former Husband and Former Wife—who apparently could not afford appellate attorneys—agreed to settle, agreeing to the result reached on appeal. (Again, the fees were the tail of the litigation dog that finally “wagged” everyone into complacency, as stressed in our Mission Statement.) Former Husband lost his challenges on appeal.
In In re Marriage of MacIntyre, Case No. A117664 (1st Dist., Div. 2 July 7, 2008) (unpublished), Former Husband argued that some additional elements of animus, vexatiousness, and separate injury were requirements of proof before fee sanctions could be awarded under section 271. Not so, ruled the First District, Division Two, in a 3-0 panel decision authored by Presiding Justice Kline.
The Court of Appeal observed that the section 271 award is in the nature of a sanction, requiring consideration of all of the evidence regarding the parties’ incomes, assets and liabilities, so long as the paying party is not strapped with an unreasonable financial burden (which the lower court found was not the case with Former Husband). It then proceeded to reject Former Husband’s suggestions that the following more rigorous requirements were necessary for assessing section 271 fee sanctions:
· Oppression/fraud/malice standard for punitive damages – “We are cited no authority that [this standard] has any place in a sanctions award under section 271” (Slip Opn., at p. 5);
· Frivolous-appeal standard – “A similar effort to import a frivolous-appeal standard has been rejected,” citing In re Marriage of Freeman, supra, 132 Cal.App.4th at 6; and
· Separate injury to the complaining spouse –Not contained in section 271, citing In re Marriage of Feldman, 153 Cal.App.4th 1470, 1479 (2007).
Finally, the appellate panel found no authority indicating that a trial court had to
find entitlement to section 271 fees by clear and convincing evidence. (Slip Opn., at p. 6.)