IN RE: the MARRIAGE OF James Paul GREEN and Caroline Ann Allen (Green).

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Court of Appeal, First District, Division 5, California.

IN RE: the MARRIAGE OF James Paul GREEN and Caroline Ann Allen (Green). James Paul GREEN, Appellant, v. Caroline Ann ALLEN (Green), Respondent.

No. A044621.

Decided: December 08, 1989

James Paul Green, San Francisco, pro se. Bernard N. Wolf, Dowgialo & Wolf, San Francisco, David P. Uccelli, San Mateo, for respondent.

James Paul Green appeals from an order enforcing a judgment of dissolution of marriage to the extent it awarded attorney fees and costs to his former spouse, Caroline.

In its judgment dissolving the marriage of James and Caroline Green, filed on June 16, 1987, the trial court ordered James to pay Caroline's attorney $37,000 in fees and a balance due on costs of experts in the sum of $5,870.   James posted bond on appeal for the full amount of the judgment, including fees and costs.   When, by court order, the “Enfrente” proceeds which had been in escrow were applied to satisfy a portion of the judgment, the bond was reduced to $77,681.   While James's appeal was pending, Caroline filed an order to show cause for attorney fees and costs on appeal and for enforcement of unpaid attorney fees and costs in the amount of $39,250 which had been awarded to her and were not being appealed.   After a hearing, the trial court denied Caroline's request for appellate fees and costs, but granted her request for permission to enforce attorney fees and costs awarded by the underlying judgment.   Issuance of a writ of execution was stayed while James filed a writ of supersedeas which this court summarily denied.  (Green v. Superior Court (Dec. 5, 1988) A044306.)

In his opening brief on appeal, James (1) asserted he had already paid the attorney fees in question, and (2) contended the trial court lacked jurisdiction to enforce any part of the judgment once his appeal was perfected and he had posted bond.   In response, Caroline summarily answered both arguments, additionally requesting attorney fees and costs on appeal (Civ.Code, §§ 4370, 4370.5) as well as sanctions against James (Code Civ.Proc., § 907;  Cal.Rules of Court, rule 26, subd. (a)).

While this appeal was pending Caroline made a motion to dismiss which we denied because James's opposition contended the fees had already been paid.   This was not true.

In his reply brief, James purported to withdraw this appeal because “the issue would appear to be moot” in light of this court's opinion in the underlying dissolution case, In re Marriage of Green (1989) 213 Cal.App.3d 14, 261 Cal.Rptr. 294.   Thus, the only remaining issue is Caroline's request for sanctions.

James's claim that this court's decision in his appeal of the dissolution judgment renders moot the issue of attorney fees and costs is curious since the issue was not raised in that appeal.   In trying to explain to the trial court how the two actions are nonetheless related, James—inadvertently perhaps—revealed the motive of this appeal was delay:

“THE COURT:  So why can't I make an order authorizing execution for the attorneys fees and reducing your bond by that amount?

“MR. GREEN:  Because if the court does do that and we prevail on the issues on appeal, there will be nothing to execute against including exonerating our own bond.

“THE COURT:  You lost me.

“THE COURT:  I understand you have an appeal pending for monetary issues.   And if you win, you'll have some money owed you.   But I am not clear what your argument was.

“MR. GREEN:  I'm trying to suggest to the court that the amount which is the subject of the bond is less than the amount that we would be entitled to have offset in our favor if we prevail on those issues.”

This colloquy—indeed, the entire argument on this issue below—reveals that James's purpose was to delay paying the attorney fees until his appeal in the marital dissolution had been decided, even though he had not challenged the attorney fee award in that appeal.   Posting a bond had not protected the entire amount of the judgment in Caroline's favor;  he had still been required to pay her some $60,000—the Enfrente proceeds.   Thus it was theoretically possible for the judgment to be reduced on appeal by more than he still owed her.   In effect, he held her $37,000 attorney fees ransom against this eventuality by pursuing this appeal.1

“When it appears to the reviewing court that the appeal was frivolous or taken solely for delay, it may add to the costs on appeal such damages as may be just.”  (Code Civ.Proc., § 907.)   Under the same conditions, California Rules of Court, rule 26, subdivision (a), permits imposition of “such penalties ․ as the circumstances of the case and the discouragement of like conduct in the future may require.”   An appeal is frivolous when it is prosecuted “to harass the respondent or delay the effect of an adverse judgment.”  (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650, 183 Cal.Rptr. 508, 646 P.2d 179.)   Under these guidelines, Caroline's request for sanctions has merit.

In Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1, 16–18, 244 Cal.Rptr. 581, after awarding respondent sanctions in the amount of its costs and attorney fees, the court noted that respondents are not the only parties damaged by the pursuit of a frivolous appeal.   Accordingly, it imposed additional sanctions to “compensate the government for its expense in processing, reviewing and deciding a frivolous appeal.”  (Id., at p. 17, 244 Cal.Rptr. 581.)   It is particularly apt here, since Caroline will be entitled to appellate attorney fees and costs under the Family Law Act, that sanctions be imposed upon James, payable to this court for having filed an appeal for the purpose of delay.

In Finnie, supra, at pages 17–18, 244 Cal.Rptr. 581, the court ordered sanctions paid to the court in the amount of $2,324, “a very conservative estimate” of the cost of processing an average civil appeal as of February 1988.  (Emphasis in original.)   In Young v. Rosenthal (1989) 212 Cal.App.3d 96, 136–137, 260 Cal.Rptr. 369, the court independently determined the cost for such an appeal to be $3,995, but ordered additional sanctions of $20,000 because of the voluminous record, the number of extensive briefs, the number of vigorously contested procedural motions, and the multiple issues in that case imposed a substantially greater burden on the court than the average civil appeal.   In this case, we have determined the proper amount to compensate the state for its costs in processing this appeal to be $4,000.

The judgment is affirmed.   James shall pay to the clerk of this court the sum of $4,000 as sanctions for filing an appeal for the purpose of delay.   James shall also pay Caroline's appellate attorney fees and costs.   The cause is remanded to the trial court for a determination of the amount of these fees and costs as well as the amount of sanctions, if any, determined by the trial court to run in Caroline's favor for having had to defend against an appeal taken for the purpose of delay.

FOOTNOTES

1.   At oral argument James indicated he lacked the funds to comply with the order when it was issued.   Far from justifying the appeal, this statement supports the conclusion it was filed for the purpose of delay.

KING, Associate Justice.

LOW, P.J., and HANING, J. concur.