A party dealing with an obstructive or uncooperative opposing party or attorney in their family law case may request attorney’s fees and costs (as a sanction) pursuant to Family Code §271, not only for attorney’s fees and costs already incurred but also anticipated fees and costs resulting from the offending individual’s bad behavior.
Family Code §271, the provision by which attorney’s fees and costs as sanctions are awarded based on “the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation, and where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys,” functions as an important tool that can be used to discourage obstructive behavior by a party and/or his or her attorney. In a recent holding from the Fourth Appellate District, Menezes v. McDaniel, Wife demonstrated repeated instances of noncompliance with court orders and deliberate withholding of information pertinent to the transfer of a real property situated in Brazil to Husband. Three years after the award of the property to Husband, Wife had not only not transferred it as ordered but appeared to have allowed her mother to encumber it, entangling Husband in expensive and time-consuming litigation in a foreign country. Husband requested an award of attorney’s fees and costs, based amounts that he had already incurred and additional amounts that he expected to incur in enforcing the trial court’s orders for the transfer of the real property. The trial court awarded him $200,000, explaining that Wife’s “actions thwarted any enforcement of the court’s orders and caused protracted litigation around an issue that was heard and settled by the Court at numerous hearings…”
The Court rejected Wife’s arguments on appeal that: (1) §271 precludes an award of future attorney fees and costs; (2) the anticipated attorney fees and costs were speculative; and (3) §271 anticipates assessing sanctions at the end of the case. It found held that there was sufficient evidence that the anticipated fees and costs awarded would be incurred because of actions that Husband would need to take in order remedy Wife’s misconduct. It did remand the amount of the award for further consideration by the trial court because there was not substantial evidence that all the award was tethered to attorney fees and costs. Husband had included travel costs, vacation time and other expenses that were not attorney fees and costs in his request.
This case also serves as a warning to obstructive or uncooperative parties or attorneys. If your behavior violates the policy of §271 to such an extent that the other party will have to take further legal action to clean up the mess that you made, you may be on the hook for those anticipated fees and costs as well as fees and costs already incurred.
The Menezes v. McDaniel case may be found here. https://www.courts.ca.gov/opinions/documents/D074434.PDF