A trial court does not exceed its discretion by increasing a support order and ordering a party to pay attorney fees when the record supports such a finding. Moreover the court can order sanctions against both litigant and attorney for bringing a frivolous appeal.
The parties filed for divorce. They stipulated to certain pendente lite, or continuing, support orders. After completing discovery, Wife filed an order to show cause requesting an increase in monthly spousal support as well as attorney fees from Husband. Wife's CPA report showed Husband's monthly cash flow. Husband objects to the report and says that it was an error for the court to find that he had the ability to pay the spousal support and attorney fees as ordered. The trial court nevertheless ordered Husband to pay to Wife $10,000 in attorney fees and monthly spousal support of $1,650. Husband appealed. The court noted that in bringing his appeal, Husband cited "little, if any" legal authority in his arguments. The court also concluded that due to the prior history of this divorce, and the lack of merit, Husband only brought this appeal to harass and delay.
There are two issues here. First, did the trial court abuse its discretion in ordering Husband to pay Wife $10,000 in pretrial attorney fees and $1,650 in monthly spousal support? Second, are sanctions appropriate?
The trial court record contained evidence including information about assets, income, credit card reimbursements, attorney fees, employment and a promissory note. Given that evidence in the record, the trial court was well within its discretion to find Husband had the ability to pay both the support increase and the attorney fees. The attorney fees in this case are however substantial. Because the matter has been up and down to the Supreme Court, the combined fees of the parties are about $80,000. Husband's attorney fees are paid through the corporation, which is a community asset. The trial court noted that is did not seem fair for one party has access to a community asset paying attorney fees and the other does not. Moreover Husband had substantial earnings, an ability to pay, and reasonable access to funds to pay.
The court next assessed sanctions. It noted that not only Wife, but other parties waiting for an appellate resolution were damaged by this kind of frivolous appeal, and the delay it caused. Sanctions are appropriate to compensate the government for the cost of handling a frivolous appeal. What amount of sanctions is proper? The court determined that $2,500 in sanctions be paid to the court clerk. The court based that assessment on costs of the average civil appeal to the court and on a review of the record. Generally, the court can order sanctions against both the litigant and his or her attorney. A court can order sanctions against an attorney who brings an appeal lacking any merit, as was the case here. Husband's attorney should have declined the case or at least declined to bring an appeal completely devoid of merit. But, husband benefitted from this frivolous appeal that he initiated and pursued, so his counsel is not solely to blame. The court ordered both Husband and his attorney to each pay $1,250 to the Court of Appeal clerk in sanctions.
In re Marriage of Schnabel (1994) 30 Cal.App.4th 747