Thirteenth Appellate Proceedings By Wife In Longtime Dissolution Action Ends in Affirmance.
Marriage of Falcone and Fyke, Case No. H033619 (6th Dist. May 28, 2010) (unpublished) is the 13th appellate proceeding initiated by wife, the respondent in a longtime marital dissolution action. Wife moved for a needs-based award of attorney’s fees under Family Code section 2031, a statute we have examined many times before in the Column “Family Law.” The problem is that the motion was a renewal of similar requests made several times earlier before a different family law judge. The new judge did not abuse her discretion in denying the request.
Wife also raised a new statute as a basis for fee entitlement on appeal. However, the appellate court refused to consider the argument, observing that it had discretion to consider a new theory based on a pure question of law. (Resolution Trust Corp. v. Winslow, 9 Cal.App.4th 1799, 1810 (1992).) It declined to consider the new theory.
Finally, Husband moved for sanctions, arguing wife’s appeal was frivolous. The appellate court found that the appeal was without merit, but not quite clearly egregious enough to be frivolous in nature. Beyond that, the Sixth District had upheld a total of nearly $90,000 in previous sanctions awards against her, such that it could not find awarding additional sanctions would act as much of a deterrent.