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NEW CASE UPDATE: You Can’t Get Attorney Fees as a Sanction if You Don’t Have an Attorney

Photo Credit: John Guccione

On January 11, 2021, the First Appellate District of California rendered a decision in the case of Marriage of Erndt and Terhorst, stating, in brief, that a self-represented husband was not entitled to attorney's fees under the family code provision governing award of attorney's fees as a sanction. This was the case even though the husband was an attorney himself.

The case is relevant in the world of Family Code section 271 sanctions and quick to the point.

Nancy and Michael entered into a settlement agreement resolving their divorce. The stipulation mentioned Nancy’s retirement plan but omitted mention of the plan's survivor benefits. The parties then started fighting over whether Michael had survivor benefits. They went to court over the issue. (In re Marriage of Erndt and Terhorst (2021) 59 Cal.App.5th 898 [273 Cal.Rptr.3d 765, 766].)

The trial court ruled that the survivor benefits was an “omitted asset” that needed to be equally divided and that Nancy was not entitled to an order vacating the stipulation. Judgment was to be entered accordingly. Michael was also awarded $800 in attorney fees and $180 in costs in the nature of sanctions under Family Code section 271. The Court ordered the sanctions because Nancy completely dragged her feet in the deliberations and even went so far as to draft hand-written changes to the stipulated judgment the Court wanted filed as is with everyone’s signatures. (In re Marriage of Erndt and Terhorst, supra, 59 Cal.App.5th at 898 [273 Cal.Rptr.3d at 768].)

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Photo Credit: Sora Shimazaki

The Appeals Court made clear that Family Code section 271 sanctions were tethered to the incurring of attorney fees. Family Code section 271, subdivision (a), provides that “the court may base an award of attorney's fees and costs 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. An award of attorney's fees and costs pursuant to this section is in the nature of a sanction.” [Citation]. (In re Marriage of Erndt and Terhorst, supra, 59 Cal.App.5th 898 [273 Cal.Rptr.3d 765 at 769].) ‘Here, the words “attorney fees and costs” are not ambiguous.... Section 271 “means what it says” – sanctions available under the statute are limited to “attorney fees and costs.” [Citation]. (Id.) The Court found support for its position not only in the plain language of the statute but in corollary statutes and their supporting case law that also stated self-represented parties could not collect attorney fees.

Michael didn’t have a good rejoinder to the Court’s reasoning, merely pointing to Nancy’s abusive conduct. The Court did not reach that issue because the threshold requirement of being represented was not met. The Court did throw Michael a bone, however, and allowed him to recoup his costs.

What is the upshot of this case? If your ex and/or their attorney is dragging their feet in the litigation or engaging in abusive tactics, there is no punishment under Family Code section 271 unless you have an attorney. The Law Offices of Jane Migachyov cuts abusive conduct down to size and seeks the maximum consequences with all sanctions applicable under the law. Regain some order in your case by scheduling a free initial consultation with the firm NOW.

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