ATTORNEY FEES AS SANCTIONS VALID WHEN FIDUCIARY DUTY VIOLATED

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So you’re thinking of leaving the spouse, and you think it might be a good idea to take a cash advance from the joint family credit card, just in case.  And you want to put the money in your own bank account, sacking the community with the debt, and not telling him about it.  And you think this is a good idea.  And, well…

Maybe you should think again.  That’s because California’s appellate courts have ruled that a trial court erred by not awarding attorney fees as sanctions under Family Code §1101(g) despite the fact it found during a dissolution trial that Wife had violated her statutory fiduciary duty by taking a $24,000 cash advance on a credit card before separation and transferring the funds to her personal bank account without informing her Husband.

The facts of Marriage of Fossum (2011) 192 CA4th 336, 121 CR3d 195 were that Wife, before separating from Husband, took a $24,000 cash advance using a credit card and transferred the funds into her personal bank account without informing Husband.  After the trial for the couple’s marital dissolution, the trial court ordered Wife to reimburse Husband for half the amount charged, but found that Husband was not entitled to an award of attorney fees even though she had violated her fiduciary duty under Family Code §721.

The appellate court reversed the judgment.  Regarding attorney fees, the court of appeal held that Husband was entitled to an award of attorney fees under section 1101(g) as a result of Wife’s breach of fiduciary duty.  Family Code §1101(g) states that its remedies “shall include, but not be limited to, an award to the other spouse of 50 percent, or an amount equal to 50 percent, of any asset undisclosed or transferred in breach of the fiduciary duty plus attorney’s fees and court costs.”

FOOL FOR A CLIENT IN FAMILY LAW

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Only a fool would represent himself in Family Law Court.  Just ask Robert N. Greenberg.  He’s the attorney/Appellant who represented himself in a case recently Certified For Publication by the Second Appellate District out of Santa Barbara, California.  In Marriage of Greenberg, B226064, April 28, 2011, Greenberg (husband) appealed an order awarding $2,800 in attorneys fees and sanctions to his former spouse.  It seems Mr. Greenberg had stubbornly failed to honor a 2008 judgment dividing community property with the Missus, and he was not about to let her get away with it.  The trial court wasn’t about to let Mr. Greenberg get away with that, so it sanctioned him per Family Code § 271, and then Mr. Greenberg filed his appeal.  And that’s when his problems really started.

You see, the Second Appellate District didn’t really appreciate Mr. Greenberg’s attitude.  It determined that Mr. Greenberg “lacked objectivity” in his exercise of the appeal process, which they considered an exercise in frivolity.  The court iterated that “any reasonable attorney would have advised (Mr. Greenberg) not to pursue his appeal.”  To make sure the message got across, the court not only affirmed the judgment order awarding $2,800 fees and sanctions, it awarded to the wife costs on appeal.  That was probably about a $10,000 tab, and as if to add insult to injury – and to help pay the ultimate fool’s price – the Second Appellate Court ordered the clerk of the court to send a copy of the court’s opinion to the State Bar for review.  Hmmm.  Poor Mr. Greenberg.  So much for out-of-control emotions against the ex – and representing oneself in Family Law Court, even if you are an attorney.