Attorney’s And Expert Fees Awardable Under Fee-Shifting And Sanctions Statutes Of The Family Code

Fourth District, Division Two Affirms Fee Award of $80,000 and Expert Witness Fees Sanctions of $97,115 Against Former Husband.

            In past posts, we have explored the sanctions awardable under Family Code section 271.  (See posts of July 8, and 17, 2008.)  We now examine this provision again, coupled with other fee-shifting provisions found in the Family Code.

            In Filippis v. Williams, Case No. E042544 (4^th Dist., Div. 2 July 22, 2008), Former Husband was ordered to pay to Former Wife $5,000 in attorney’s fees under Family Code section 3557, $75,000 in attorney’s fees under Family Code section 3652, and $97,115 as a sanctions under Family Code section 271.  All of these fees and sanctions emanated from protracted child support and visitation proceedings.  The trial court found that Former Husband refused to provide requested documents about his financial affairs and that the fees/sanctions would not impose an unreasonable burden, because Former Husband had assets approaching $1 million and his monthly income had actually increased during the pertinent time spans.  Former Husband appealed, having to argue that the awards were an abuse of discretion.

            Before we get to the appellate court ruling, a brief review of the statutory fee authorizations.  Family Code section 3557 makes an attorney’s fees award mandatory to a custodial parent that successfully enforces an existing child support order.  Family Code section 3652 awards discretionary fees to a parent successfully increasing a child support order.  Family Code section 271 codifies a sanction, a discretionary one based on a trial court’s finding that a party tried to frustrate settlement and escalated the costs of litigation by being uncooperative.  All of these statutory provisions require the presence of an important condition precedent:  a judicial determination that the party subject to fees or sanctions has the ability to pay. 

            Anyone want to bet on the result?  Not hard to predict.  Justice Gaut, writing for a 3-0 panel of the Fourth District, Division Two, affirmed and awarded fees/costs on appeal to Former Wife.  The record was replete with evidence that Former Husband had the financial ability to pay, given his $1 million asset base and substantial monthly income.  Income substantiation for Former Husband came from admissions he made in a loan application, which was found to be very persuasive evidence on the subject—as squarely recognized in In re Marriage of Chakko, 115 Cal.App.4^th 104, 108 (2004) and reacknowledged in In re Marriage of Calcaterra and Badakhsh, 132 Cal.App.4^th 28, 35 (2005).