FC 271 Sanctions

A California divorce court is reversed by an Appellate Court when the judge sanctions Mother and her attorney for actions that the Appellate Court found were not sanctionable. The California Court of Appeal has ruled that a Trial Court was wrong by ordering sanctions under California Family Code Section 271 [divorce court may impose attorney’s fees based on conduct of party or attorney that furthers or frustrates settlement] against Mother and her attorney on the grounds that Mother argued that Father should not have overnight visitation with their child until child turns two years old, Mother filed a motion to disqualify the trial judge, Mother submitted a proposed judgment with errors, and Mother argued that Father’s video calls with child should be recorded.

In the case Featherstone v. Martinez (Decided on December 21, 2022), Mother and Father had one child together in 2019. Two months after child was born, Mother filed a parentage petition requesting primary physical and joint legal custody of child. In her supporting declaration, Mother acknowledged that Father was an involved father, but that he traveled frequently for work and was in town only three to four days each month. Mother requested that Father’s initial visitation with child last only three to four hours at a time and take place at her home and that Father provide two weeks’ advance notice before each visit. Mother also requested that overnight visits with Father begin once child turns two years old.

Father filed a response and, in his proposed visitation schedule, requested each visit last eight hours and that overnight visits begin when child turns six months old.

At a hearing in December 2019, Mother appeared without an attorney and Trial Court commented on Mother’s parentage petition stating that “the way you wrote it, it was along the lines of, I control everything, I’m the boss, and, you know, I’ll do him a favor and let him see his child.” When Trial Court asked Mother if she was breast-feeding, Trial Court said “don’t . . . lie” and “don’t exaggerate” before Mother answered. Trial Court finally commented “I’m going to side completely with [Father] today, and I think in the future you’re going to have a really hard time, because although I’ve tried to explain it, emotionally—and I understand—you do not feel like he’s an equal parent and you feel like you need to drag this out and make it slow.”

After this hearing, Mother retained counsel. In March of 2020, Mother’s attorney filed a motion to disqualify the judge under California Code of Civil Procedure Section 170.1 [challenge of trial judge for cause] based on purported bias that the judge demonstrated during the first hearing. Trial Court stated that the motion was “almost by definition untimely under these circumstances.” Mother’s attorney responded that she received the

transcript from the December 2019, hearing only a few days ago. Trial Court struck the motion as untimely and during argument on visitation issues during the same hearing, Trial Court stated that Mother’s attorney was not directly answering its questions and warned that, without improvement, they would “start talking about sanctions.”

In July of 2020, Mother submitted a proposed judgment, to which Father objected on the grounds that the proposed judgment contained several errors, including misstatements of Trial Court’s ruling. Trial Court rejected the proposed judgment.

In February 2021, Father filed a trial brief in which he requested Mother pay $7,000 in attorney’s fees pursuant to Family Code Section 271(a) [divorce court may impose fee order based on conduct of party or attorney that furthers or frustrates settlement] due to Mother’s purported unreasonable litigation, including her motion to disqualify the judge, the proposed judgment that contained misstatements of the Trial Court’s ruling, and her general refusal to settle.

At a hearing on February 24, 2021, Trial Court recounted its concerns regarding Mother’s litigation conduct. Regarding Mother’s motion to disqualify the judge, Trial Court commented “[Mother] has the right to believe I was biased. She always has that right, and I can’t sanction her for that . . .. [But] she does not have the right to file late, improperly noticed, and/or out of context motions.” In response to Mother’s attorney’s argument that Father had not properly noticed a motion for sanctions under Family Code Section 271, Trial Court stated “I think I noticed [Mother] for sanctions on my own motion at one of the earlier hearings when things were not proceeding so well . . .. It’s the court’s own motion.”

At a June 21, 2021, hearing, while the parties were discussing their agreement that Father would have video calls with child, Mother interjected that she agreed to use Zoom only and not any other platforms, since Zoom calls may be recorded. When Trial Court inquired why Mother wanted to record these video calls, Mother said she would like to record the calls because she and Father had disagreed in the past about whether certain statements were made. With regard to Mother’s insistence that Father use Zoom, Trial Court stated Mother had a controlling mindset and that although it was prepared to give “just the tiniest sanctions . . . now sanctions are back, thoroughly back, on the table[.]”

In September 2021, Trial Court held a hearing to impose sanctions. At the beginning of the hearing, Trial Court stated that the motion for sanctions has been “noticed, re-noticed, and repeatedly noticed.”

Trial Court again recounted its issues with Mother’s conduct. First, Trial Court stated that Mother’s declaration was misleading and her attempt to prevent Father from having overnights for two years while also limiting his visits to three to four hours at a time was “in and of itself, sanctionable.” Second, Trial Court stated that Mother’s motion to disqualify the judge was untimely and procedurally deficient and “was written out of context in an intentionally inflammatory and dishonest manner.” Third, Trial Court noted the proposed judgment prepared by Mother that Trial Court rejected “because it was replete with errors and omissions[.]” And finally, Trial Court stated that Mother’s request to use only Zoom for video calls was “alarming, outrageous, unbelievable, tone deaf, counterproductive . . .” and that when Trial Court attempted to note its problem with Mother’s request, Mother’s attorney interrupted “in a rude and abrupt manner.” At the conclusion of the hearing, Trial Court sanctioned Mother in the amount of $10,000 and separately sanctioned Mother’s attorney in the amount of $10,000.

Mother appealed and now, a California Court of Appeals has reversed Trial Court’s decision. The Appellate Court has ruled that there is a question whether Family Code Section 271 authorizes a court to issue sanctions on its own motion. The order for sanctions against Mother’s attorney was improper since Family Code Section 271(c) provides that an award of attorney’s fees and costs as a sanction is payable only from the property or income of the party against whom sanction is imposed. Furthermore, Mother’s declarations, her motion to disqualify the judge, her proposed judgment, and her request that Father’s video calls with child take place on Zoom did not constitute sanctionable conduct. Accordingly, the Appellate Court reversed Trial Court’s award of sanctions against Mother and her attorney.

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