IN RE: the MARRIAGE OF Susan K. Denton CHRISTY and James H. Christy.

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Court of Appeal, Fifth District, California.

IN RE: the MARRIAGE OF Susan K. Denton CHRISTY and James H. Christy. Aleda DENTON, Appellant, v. James H. CHRISTY, Respondent.

No. F017697.

Decided: June 28, 1994

Michael P. Dolan, Bakersfield, for appellant. Bley and Bley and Melinda H. Frey, Oakland, for respondent.

OPINION

Aleda Denton appeals from the order denying her request for establishment of spousal support arrearages owed to her sister, Susan Christy, and for custody or visitation of her nephew, Jacob.   We will affirm, concluding that her appeal is so lacking in merit that sanctions should be imposed not only to compensate respondent but also to compensate the State of California for its costs in processing this frivolous appeal.

STATEMENT OF FACTS

Respondent James Christy (husband) and Susan Denton Christy (wife) were married on November 26, 1977.   They have two minor children, Jacob and Ada.   Wife has two sisters, Aleda Denton and Nancy Bettencourt.

An interlocutory judgment of dissolution of marriage incorporating a marital settlement agreement was filed June 1, 1984.   In relevant part, the marital agreement provides wife shall have custody of both minor children.   It also provides husband shall pay the sum of $750 per month to wife as family support.   If the children are in the custody of wife on February 1, 1985, husband shall pay to her for child support the sum of $500 per month and the provision for family support shall cease to be operative.

On February 14, 1987, wife executed a general power of attorney appointing “Aleda Faye Denton and/or Ada Aleda Denton” as her attorney in fact.   Wife also executed documents authorizing her parents and sisters “to make any exchanges” of Ada and Jacob and to authorize medical treatment for either child.

Determining it was in the best interests of both children, on January 21, 1988, Judge Stone of the Kern County Superior Court awarded sole physical custody of both children to husband.   Wife was awarded visitation.

Late in January 1988, wife disappeared with Ada;  their whereabouts were unknown at the time the following proceedings were heard.   Both sisters asserted they had not been in contact with wife since her disappearance with Ada.

On October 30, 1991, Aleda 1 filed an order to show cause in the Kern County Superior Court seeking custody of or supervised visits with Jacob and clarification of “spousal support arrearages” allegedly owed to wife.

On December 17, 1991, Judge Kelly ordered Jacob “to be with [wife] and/or her representative, Aleda Denton,” during the second half of the Christmas vacation period.   However, Aleda was “unable to enforce the order before the time had passed,” and the visit did not occur.

On February 27, 1992, Judge Oberholzer heard the motion.   Aleda and Nancy testified in support thereof.   Husband contested the motion and he and his second wife, Paula, testified against it.   The motion was denied in its entirety.   In addition, the court modified visitation to terminate all visitation between Aleda and Jacob.   This appeal followed.

On February 11, 1993, a petition for guardianship of Jacob filed by Aleda and Nancy in the Contra Costa County Superior Court was dismissed.   The court found the petition to have been filed in bad faith and determined the action was frivolous.   The court ordered the sisters to pay husband the sum of $1,500 for reimbursement of his attorney's fees.2

On February 24, 1993, the Contra Costa County Superior Court again imposed sanctions on the sisters and, on this occasion, their legal counsel, in the amount of $1,600 payable to husband for attempting to mislead the court in an unsuccessful attempt to intervene in the pending adoption of Jacob by Paula Christy.

On May 11, 1993, wife's parental rights with regard to Jacob were terminated.   On the following day Jacob was adopted by Paula Christy in a stepparent adoption.

DISCUSSION

1. The appeal

Each of Aleda's three contentions on appeal is utterly devoid of legal merit.   First, Aleda offered no competent documentary evidence supporting her assertion of spousal support arrearages.   Second, whether Aleda has standing to assert visitation rights in wife's stead is moot because wife's parental rights have been terminated during the pendency of this appeal.   Finally, the trial court's determination that visitation with Aleda would be detrimental to Jacob and disruptive to the family is so well supported by the testimony presented at the hearing that it is not even reasonably arguable that the court abused its discretion.

2. Sanctions against Aleda

Arguing the appeal is patently frivolous and prosecuted solely to harass him and his family, husband contends sanctions should be imposed pursuant to Code of Civil Procedure section 907 and California Rules of Court, rule 26(a).3  We find his argument persuasive.4

In re Marriage of Flaherty, supra, 31 Cal.3d 637, 650, 183 Cal.Rptr. 508, 646 P.2d 179, established the current definition of “frivolous”:

“an appeal should be held to be frivolous only when it is prosecuted for an improper motive-to harass the respondent or delay the effect of an adverse judgment-or when it indisputably has no merit-when any reasonable attorney would agree that the appeal is totally and completely without merit.”

The instant appeal is indisputably frivolous.   As discussed, ante, in section 1, it is totally lacking in legal merit.   Moreover, review of the entire record leads one to find the instant appeal was maintained for purposes of harassment and delay.   Aleda has twice been sanctioned by the Contra Costa County Superior Court for prosecuting custody actions in bad faith, yet continues to maintain the current appeal despite the fact not one of her arguments is meritorious.   In her opening brief, Aleda gave no indication proceedings to terminate wife's parental rights were pending, failed to inform this court when wife's parental rights were terminated, and filed no reply brief after husband apprised this court of these facts.   She did not file a request for dismissal or indicate she was abandoning her claim to visitation based on wife's parental rights.   We glean from this that a motivation other than resolution of contested legal questions prompted this appeal.

In determining the appropriate amount of sanctions to be imposed for filing and maintaining a frivolous appeal,

“The damages for which [the appellate court] may order compensation include the costs and attorney fees incurred by the respondent in defending against the appeal and the expense incurred by the appellate court in processing, reviewing, and deciding the appeal.   These damages are compensatory:  the People should not be asked to bear the burden of [appellant's] actions.”   (People ex rel. Dept. of Transportation v. Outdoor Media Group (1993) 13 Cal.App.4th 1067, 1081, 17 Cal.Rptr.2d 19.)

As explained in National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 526-527, 258 Cal.Rptr. 506, “[i]t is perhaps time that the courts, both trial and appellate, begin to speak and react more forcefully with respect to” the filing and maintenance of frivolous appeals.   Such abuses of the legal system are not only unfair to the “opposing litigant who is victimized by such tactics,” but “[o]thers with bona fide disputes, as well as the taxpayers, are prejudiced by the wasteful diversion of an appellate court's limited resources.”

Beginning with Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1, 244 Cal.Rptr. 581, in at least nine published cases the Courts of Appeal of the First, Second, Third and Fourth Districts have imposed sanctions payable to the clerk of the court to reimburse the taxpayers for the cost of processing the appeal.  (Id. at pp. 16-18, 244 Cal.Rptr. 581, Young v. Rosenthal (1989) 212 Cal.App.3d 96, 135-137, 260 Cal.Rptr. 369, Bach v. County of Butte (1989) 215 Cal.App.3d 294, 312-313, 263 Cal.Rptr. 565, Bank of California v. Varakin (1990) 216 Cal.App.3d 1630, 1640-1641, 265 Cal.Rptr. 666, Alicia T. v. County of Los Angeles (1990) 222 Cal.App.3d 869, 886, 271 Cal.Rptr. 513, Summers v. City of Cathedral City (1990) 225 Cal.App.3d 1047, 1080-1081, 275 Cal.Rptr. 594, City of Bell Gardens v. County of Los Angeles (1991) 231 Cal.App.3d 1563, 1573-1575, 283 Cal.Rptr. 91, Cohen v. General Motors Corp. (1992) 2 Cal.App.4th 893, 897, 3 Cal.Rptr.2d 619, People ex rel. Dept. of Transportation v. Outdoor Media Group, supra, 13 Cal.App.4th at pp. 1081-1083, 17 Cal.Rptr.2d 19.) 5  This district has not yet taken a position on this issue.   We do now.

The appellate courts are not limited to compensatory sums;  they may also require payment of additional penalties to the court in order to discourage future frivolous litigation.  (People ex rel. Dept. of Transportation v. Outdoor Media Group, supra, 13 Cal.App.4th at p. 1082, 17 Cal.Rptr.2d 19.)   Accordingly, in Bank of California v. Varakin, supra, 216 Cal.App.3d at p. 1640, 265 Cal.Rptr. 666, City of Bell Gardens v. County of Los Angeles, supra, 231 Cal.App.3d at p. 1574, 283 Cal.Rptr. 91, and Outdoor Media Group, supra, 13 Cal.App.4th at p. 1083, 17 Cal.Rptr.2d 19, the appellate courts imposed sanctions substantially in excess of the amount necessary to reimburse the taxpayers for the costs incurred in processing the appeal.   Compensatory and/or punitive sanctions, exclusive of attorney's fees and costs awarded to respondent, imposed by the appellate courts have ranged from a low of $750 in Alicia T. v. County of Los Angeles, supra, 222 Cal.App.3d at p. 886, 271 Cal.Rptr. 513 to $25,000 in Bank of California, supra, 216 Cal.App.3d at p. 1640, 265 Cal.Rptr. 666 and City of Bell Gardens, supra, 231 Cal.App.3d at p. 1574, 283 Cal.Rptr. 91 to a high of $173,080.56 in Outdoor Media Group, supra, 13 Cal.App.4th at p. 1083, 17 Cal.Rptr.2d 19.

Authority for the imposition of such compensatory and punitive sanctions payable to the court is found in the language of Code of Civil Procedure section 907 which states the courts may impose “such damages as may be just,” and in rule 26(a) of the California Rules of Court which provides the appellate courts may impose such penalties as “circumstances of the case and the discouragement of like conduct in the future may require.”  (Finnie, supra, 199 Cal.App.3d at p. 16, 244 Cal.Rptr. 581, Alicia T., supra, 222 Cal.App.3d at p. 886, 271 Cal.Rptr. 513.)

In Finnie, supra, 199 Cal.App.3d at p. 17, 244 Cal.Rptr. 581, the First District Court of Appeal determined the costs of processing an average civil appeal in 1988 by accounting “for the salaries paid to clerks, judicial attorneys, secretaries, and justices for their time expended.”   In 1989, the Second District calculated the cost of a civil appeal based upon all operating costs, including fixed overhead, to be $3,995.  (Young, supra, 212 Cal.App.3d at pp. 136-137, fn. 40, 260 Cal.Rptr. 369.)  Young 's89109451 formulation was followed by the Fourth District in Cohen v. General Motors Corp., supra, 2 Cal.App.4th at p. 897, 3 Cal.Rptr.2d 619 and People ex rel. Dept. of Transportation v. Outdoor Media Group, supra, 13 Cal.App.4th at p. 1083, 17 Cal.Rptr.2d 19.   In both of these cases the court calculated the cost of a civil appeal in 1992 and 1993 at $5,908.26.   However, two years earlier the same division of the Fourth District had relied upon Finnie and did not refer to Young, finding $2,324 should be imposed as sanctions to reimburse the state for the costs of processing appellant's frivolous appeal.   (Summers v. City of Cathedral City, supra, 225 Cal.App.3d at pp. 1080-1081, 275 Cal.Rptr. 594.)

Since basic operational expenses are constant and the major waste caused by frivolous appeals is of judicial and staff resources, the more conservative formulation utilized in Finnie and followed in Summers is adopted by this court.   Therefore, adjusting the $2,324 for salary increases, the current cost of processing, reviewing and deciding an average civil appeal is approximately $2,814.

In the instant case, we have determined the appeal was maintained, not in a good faith attempt to correct a legal error, but to harass husband and the Christy family and to improperly delay the final severance between Jacob and wife's family.   Therefore, it is Aleda and not the taxpayers of California who should be required to bear this cost.

Husband is entitled to compensation for the attorney's fees and costs he incurred defending against this action.  (Code Civ.Proc., § 907.)   In a declaration filed April 26, 1994, husband's counsel provides documentation detailing 11.9 hours she has expended thus far in defense of this appeal, at a cost to husband of $1,235.30.   Counsel avers she expended additional time which she neither documented nor billed.

Husband requests this court impose a penalty on Aleda exceeding the attorney's fees and costs actually expended in defense of this specific appeal, arguing a $15,000 sanction is necessary to deter her from future frivolous litigation.   Imposition of a penalty payable to husband is authorized by California Rules of Court, rule 26(a) (Dwyer v. Crocker National Bank (1987) 194 Cal.App.3d 1418, 1440, 240 Cal.Rptr. 297) and Code of Civil Procedure section 907 (Bach v. County of Butte, supra, 215 Cal.App.3d at p. 312, 263 Cal.Rptr. 565).   Aleda has not responded to the $15,000 sanction proposed by husband.   Lack of opposition to the suggested amount of sanctions was relied upon in Finnie, supra, 199 Cal.App.3d at p. 17, 244 Cal.Rptr. 581, to support imposition of the requested amount payable to respondent.

Aleda has been sanctioned on two previous occasions in amounts totaling $3,100 payable to husband.   Yet, her vexatious litigation continues unabated.6  A substantial penalty is necessary to discourage such improper harassment in the future.   Thus far, husband has expended over $12,000 in attorney's fees and costs in various actions responding to attempts by Aleda and her sister to obtain custody of Jacob or otherwise act on wife's behalf, despite her fugitive status.   Husband persuasively argues funds he could have used for Jacob's college fund or other activities “have instead gone toward defending against frivolous actions such as the one at bench.”   It is just, reasonable and proper that the sum of $9,000, which represents the amount of attorney's fees for which husband has not been previously compensated, be imposed as a sanction against Aleda in favor of husband to partially compensate him and the Christy family for the “expense and energy consumed by this appeal,” as well as the ongoing harassment and financial deprivation they have endured the past four years.7  (See, e.g., Bach, supra, 215 Cal.App.3d at p. 312, 263 Cal.Rptr. 565, Dwyer, supra, 194 Cal.App.3d at p. 1440, 240 Cal.Rptr. 297.)   In the event this sanction “does not deter the conduct it is designed to discourage, imposition of a greater amount may then be considered.”  (Bank of California, supra, 216 Cal.App.3d at p. 1640, 265 Cal.Rptr. 666.)

DISPOSITION

The judgment is affirmed.   Sanctions are imposed in the amount of $9,000 payable to husband and in the amount of $2,814 payable to the clerk of this court.   Both amounts are payable forthwith.   Costs are awarded to husband.

FOOTNOTES

1.   By reference to certain parties and witnesses by their first name only, no disrespect is intended.   We do so only to avoid confusion.

2.   Pursuant to Evidence Code section 452, subdivision (d), we grant husband's request for judicial notice of the records of proceedings in Contra Costa County Superior Court.

3.   Code of Civil Procedure section 907 provides, “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.”California Rules of Court, rule 26(a) provides, in relevant part, “Where the appeal is frivolous or taken solely for the purpose of delay or where any party has required in the typewritten or printed record on appeal the inclusion of any matter not reasonably material to the determination of the appeal, or has been guilty of any other unreasonable infraction of the rules governing appeals, the reviewing court may impose upon offending attorneys or parties such penalties, including the withholding or imposing of costs, as the circumstances of the case and the discouragement of like conduct in the future may require.”

4.   In compliance with In re Marriage of Flaherty (1982) 31 Cal.3d 637, 654, 183 Cal.Rptr. 508, 646 P.2d 179, the parties filed supplemental letter briefs specifically addressing whether sanctions should be imposed on Aleda and/or her counsel and, if so, the appropriate amount thereof.   At oral argument, Aleda was given the opportunity to again answer the charge her appeal is frivolous and sanctions should be imposed.  (City of Bell Gardens v. County of Los Angeles (1991) 231 Cal.App.3d 1563, 1571, 283 Cal.Rptr. 91, People v. Beverly Bail Bonds (1982) 134 Cal.App.3d 906, 914-915, 185 Cal.Rptr. 36.)   At oral argument, counsel for Aleda asserted that sanctions should not be levied upon her because of his perception Aleda was acting in the best interest of Jacob.   We find this assertion unpersuasive.

5.   The Supreme Court has not specifically addressed this issue.   Petitions for review were denied in Finnie v. Town of Tiburon, supra, 199 Cal.App.3d 1, 244 Cal.Rptr. 581, on June 2, 1988, in Young v. Rosenthal, supra, 212 Cal.App.3d 96, 260 Cal.Rptr. 369 on October 11, 1989, in Bank of California v. Varakin, supra, 216 Cal.App.3d 1630, 265 Cal.Rptr. 666 on April 4, 1990, in Alicia T. v. County of Los Angeles, supra, 222 Cal.App.3d 869, 271 Cal.Rptr. 513 on October 10, 1990, and in People ex rel. Dept. of Transportation v. Outdoor Media Group, supra, 13 Cal.App.4th 1067, 17 Cal.Rptr.2d 19 on June 3, 1993.

6.   An appeal of the termination of wife's parental rights is currently pending in the First District Court of Appeal.

7.   For reasons not germane to this opinion, we will not impose sanctions upon Aleda's counsel, who only undertook this appeal upon the death of Aleda's prior counsel.

BUCKLEY, Associate Justice.

ARDAIZ, Acting P.J., and THAXTER, J., concur.