Frivolous Appeal & Attorney Sanctions
The 1st Appellate Court recently published the opinion in Gong v. Kwong, dismissing the appeal and imposing sanctions against the appellant and his attorneys.
Husband Kwong and Wife Gong were married for 21 years and had two children. In 1994, they divorced and signed a marital settlement agreement (MSA) which was incorporated into the dissolution judgment. In pertinent part, the MSA called for husband to pay $2,500 a month in child support for his children (then 14 & 16) until they reached 25 & 27 respectively. He also agreed to split the cost of college.
Husband made just a few payments before he defaulted on the agreement. In 1996, wife filed a motion to recover approximately $130,000 in back payments; they settled (in theory) for $115,000. However, husband never paid wife. In 1999, wife asked the court to appoint a receiver and to issue a charging order against husband's partnership interest in a shopping mall. The matter was heard in May and June of 2000. The judge ruled that husband's arrearages had increased to approximately $300,000, appointed a receiver, and issued the charging order against the partnership interest. Due to back and forth between the parties and the judge over the wording of the order, the order was not issued until March 1, 2001. Thereafter, the balance was paid down in quarterly payments of $30,000.
In September 2005, husband's attorneys filed a motion seeking an order that husband had satisfied the obligation. Further, husband claimed that he had paid $30,000 more than he owed, arguing that the support was suspended during the period from May 2000 (when the decision was rendered) to March 2001 (when the order was entered) as the order entered on March 1, 2001 used the words "current amount due" and indicated the amount that had been due at the time of the decision the previous year.
The lower court rejected husband's argument, finding that the word "current" referred to the date when the evidence was entered (May 2000). Husband appealed, and wife asked for sanctions for a frivolous appeal.
Discussion: Code of Civil Procedure, section 907 provides for damages for an appeal that is frivolous or taken solely for delay. Rules of Court, rule 8.276(e)(1) allows for sanctions on a party and or the party's attorney for the same. An appeal is frivolous when it is taken for an "improper motive" or when it indisputably has no merit (any reasonable attorney would agree). Courts have held that a total lack of merit is evidence that appellant must have intended it only for delay.
HELD: there is no reasonable basis to conclude that the judge had decided that no additional sums had accrued between the time the decision was rendered and the order was rendered. The words "current" and "now" must be read in context. Further, a finding that "current" and "now" referred to the period when the order was entered (March 1, 2001) would act to modify the original support order (i.e. wipe out nine months worth of payments) when no motion to modify had been made. See, Family Code, section 3651. Further, the appeal is a cynical attempt by husband and his lawyers to harass his wife by delaying payment. "Counsel's sophistry goes beyond proper advocacy, demonstrating a willingness to assist...harassment and to abuse the court's processes." In essence, the judge's words were twisted in an effort to subvert the judge's intent.
The Appeals Court finds this to be a frivolous bad faith appeal warranting sanctions in the amount of $15,000 to wife and $6,000 to the court of appeal. The sums are chargeable to both husband AND his attorneys. "An attorney in a civil cases is not a hired gun required to carry out every direction given by the client. As a professional, counsel has a professional responsibility not to pursue an appeal that is frivolous or taken for the purpose of delay, just because the client [says so]."
Finally, the attorneys were ordered to notify the State Bar of the sanctions against them.
Husband Kwong and Wife Gong were married for 21 years and had two children. In 1994, they divorced and signed a marital settlement agreement (MSA) which was incorporated into the dissolution judgment. In pertinent part, the MSA called for husband to pay $2,500 a month in child support for his children (then 14 & 16) until they reached 25 & 27 respectively. He also agreed to split the cost of college.
Husband made just a few payments before he defaulted on the agreement. In 1996, wife filed a motion to recover approximately $130,000 in back payments; they settled (in theory) for $115,000. However, husband never paid wife. In 1999, wife asked the court to appoint a receiver and to issue a charging order against husband's partnership interest in a shopping mall. The matter was heard in May and June of 2000. The judge ruled that husband's arrearages had increased to approximately $300,000, appointed a receiver, and issued the charging order against the partnership interest. Due to back and forth between the parties and the judge over the wording of the order, the order was not issued until March 1, 2001. Thereafter, the balance was paid down in quarterly payments of $30,000.
In September 2005, husband's attorneys filed a motion seeking an order that husband had satisfied the obligation. Further, husband claimed that he had paid $30,000 more than he owed, arguing that the support was suspended during the period from May 2000 (when the decision was rendered) to March 2001 (when the order was entered) as the order entered on March 1, 2001 used the words "current amount due" and indicated the amount that had been due at the time of the decision the previous year.
The lower court rejected husband's argument, finding that the word "current" referred to the date when the evidence was entered (May 2000). Husband appealed, and wife asked for sanctions for a frivolous appeal.
Discussion: Code of Civil Procedure, section 907 provides for damages for an appeal that is frivolous or taken solely for delay. Rules of Court, rule 8.276(e)(1) allows for sanctions on a party and or the party's attorney for the same. An appeal is frivolous when it is taken for an "improper motive" or when it indisputably has no merit (any reasonable attorney would agree). Courts have held that a total lack of merit is evidence that appellant must have intended it only for delay.
HELD: there is no reasonable basis to conclude that the judge had decided that no additional sums had accrued between the time the decision was rendered and the order was rendered. The words "current" and "now" must be read in context. Further, a finding that "current" and "now" referred to the period when the order was entered (March 1, 2001) would act to modify the original support order (i.e. wipe out nine months worth of payments) when no motion to modify had been made. See, Family Code, section 3651. Further, the appeal is a cynical attempt by husband and his lawyers to harass his wife by delaying payment. "Counsel's sophistry goes beyond proper advocacy, demonstrating a willingness to assist...harassment and to abuse the court's processes." In essence, the judge's words were twisted in an effort to subvert the judge's intent.
The Appeals Court finds this to be a frivolous bad faith appeal warranting sanctions in the amount of $15,000 to wife and $6,000 to the court of appeal. The sums are chargeable to both husband AND his attorneys. "An attorney in a civil cases is not a hired gun required to carry out every direction given by the client. As a professional, counsel has a professional responsibility not to pursue an appeal that is frivolous or taken for the purpose of delay, just because the client [says so]."
Finally, the attorneys were ordered to notify the State Bar of the sanctions against them.
Labels: child support, divorce, frivolous appeal, marital settlement agreement, sanctions
