When A Court Orders A Party to Pay A Family Code 271 Sanction the Amount of the Sanction Is Governed By The Amount of Attorney’s Fees The Abused Party Actually Incurred

In a recent family law case, the trial judge sanctioned the wife $767,781.23 pursuant to Family Code § 271. The Court of Appeal affirmed in part and reversed in part, stating:  “We conclude sanctions awarded pursuant to Family Code Section 271 are limited to “attorney’s fees and costs.” 

In California, if there is a disparity in the income of spouses, then a spouse may seek an order of spousal support based on need. The spouse may also seek an award of attorney’s fees—that the other spouse pay or contribute to the spouse's attorney fees and court expenses based on need. 

Family Code Section 271 provides for an award of attorney’s fees and litigation expenses in situations where there is not a financial need.  Family Code Section 271 states:

"Notwithstanding any other provision of this code, 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. In making an award pursuant to this section, the court shall take into consideration all evidence concerning the parties' incomes, assets, and liabilities. The court shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed. In order to obtain an award under this section, the party requesting an award of attorney's fees and costs is not required to demonstrate any financial need for the award"

The idea is that if one party frustrates the process of the divorce and uses the law to delay the case or increase the cost, the court can sanction that party.  The California Court of Appeal has recently said that the amount of a Family Code § 271 sanction must be determined by the amount of attorney’s fees the abused party actually incurred.

In Sagonowsky v. Kekoa, decided on December 21, 2016, the Appeals Court reversed in part the ruling of the trial judge concerning the amount of sanctions ordered under Family Code 271. At trial, the judge sanctioned the wife $767,781.23 pursuant to Family Code § 271. That amount included $500,000 for her “relentless and culpable conduct” in driving up the cost of the litigation and purposefully frustrating a final settlement of the case. The Court of Appeal stated: “sanctions awarded pursuant to Family Code Section 271 are limited to ‘attorney’s fees and costs’ and, as a result, the trial court erred by imposing sanctions of $500,000 for [the wife’s] conduct in increasing the cost of the litigation and frustrating settlement, and by imposing sanctions of $180,000 for causing a reduction in the sale price of real property awarded to [the husband] in the dissolution judgment, because these amounts were not related to attorney fees and costs incurred by [the husband].”


Divorce attorneys are generally familiar with Family Code § 271, but many laypersons are not. If one’s spouse needlessly prolongs litigation or causes unnecessary attorney’s fees during a divorce the abused party can ask the court to award him or her attorney’s fees as a sanction.  A Court cannot use Family Code § 271 to award sanctions in an amount unrelated to attorney’s fees.  In a very interesting side note the Appeals court addressed Code of Civil Procedure Section 128.5, which authorizes sanctions in general civil litigation to compensate a party for "reasonable expenses, including attorney's fees, incurred by [the] party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay." The Sagonowsky court, in footnote 10, states that section 128.5 "likely would have authorized the sanctions at issue, but Kekoa did not seek sanctions pursuant to that statute, and there is no indication the court's order imposing sanctions was predicated on that statute." Clearly, if the husband’s lawyer’s had sought sanctions under both statutes Family Code 271 and Code of Civil Procedure Section 128.5 the Court of Appeals would not have reduced that portion of the trial judge’s award. The facts of this case are very interesting and the spouse who was sanctioned did some really awful stuff. 

If you are interested in reading the case, click here to download the case as a word document.

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