Fourth District, Division Three Remands to Lower Court For Award of Sanctions under Section 271.
We reviewed the fee shifting provision in Family Code section 271—which is considered to be akin to a sanction—in our July 7, 2008 post discussion of In re Marriage of MacIntyre and in our July 8, 2008 post discussion of In re Marriage of Falcon & Fyke. Now, our local Santa Ana-based appellate court has remanded a case for consideration of appellate fee sanctions for the meritless prosecution of an appeal.
In In re Marriage of Thomas and Pamela Brown Giffin, Case No. G038482 (4th Dist., Div. 3 July 16, 2008) (unpublished), the Fourth District, Division 3, in a decision authored by Justice O’Leary, denied a losing former husband’s petition for rehearing in a cause where he lost an appeal that was also found to lack merit. The Court of Appeal then considered sanctions for the meritless appeal, treating the request as one for an award of appellate attorney’s fees under Family Code section 271(a). As discussed in prior posts, section 271 authorizes a fee award where an opposing party’s conduct has frustrated settlement efforts and frustrated efforts to reduce litigations costs through cooperative conduct. (See In re Marriage of Burgard, 72 Cal.App.4th 74, 82 (1999).)
The panel in In re Marriage of Giffin found that aggressively pursuing a meritless appeal undermines the policies enunciated in section 271. It went on to suggest that the winning former wife’s $15,000 in requested fees and costs appeared reasonable in nature. However, because section 271 requires consideration of other circumstances such as the parties’ incomes, assets and liabilities (so that sanctions do not impose an unreasonable financial burden on losing former husband), the fees/cost determination was remanded to the trial court for consideration