In rе the Marriage of JACQUELYN C. and JAMES O. FLAHERTY. JAMES O. FLAHERTY, Appellant, v. JACQUELYN C. FLAHERTY, Respondent.
S.F. No. 24307
Supreme Court of California
June 17, 1982
31 Cal. 3d 637
Jay-Allen Eisen, Rothschild & Eisen, Michael Rothschild, Anthony S. Dick, Roberta Ranstrom and Wilson Curle for Appellant.
Lee A. Lopez and Michael J. Hamilton for Respondent.
Jonathan Milberg as Amicus Curiae.
OPINION
BIRD, C. J.—Did the trial court abuse its discretion under the particular facts of this case when it refused to order a mother, who testified she worked part time but could obtain full-time work if she chose, to pay child support and ordered both parents to pay the child‘s transportation costs? Was an appeal based on this issue frivolous? What procedures should the Courts of Appeal follow before fining or criticizing attorneys for prosecuting frivolous appeals? (See
I.
Jacquelyn and James Flaherty were married in 1974. Their child, Melissa (Missy), was born in January of 1975. The couple separated in 1976, and Jacquelyn filed for divorce in Kentucky. She was awarded temporary custody of Melissa. The Kentucky divorce proceedings were never completed.
Jacquelyn and Melissa moved to California in 1977. In early 1978, Jacquelyn left Melissa in the care of Norma Chambers, Jacquelyn‘s mother. Later that year, the Chambers filed for guardianship of Melissa. James then moved to California and began living with the Chambers and Melissa. At this point, the guardianship petition was withdrawn.
On December 1, 1978, James filed a petition in Shasta County Superior Court for dissolution of his marriage to Jacquelyn. He asked for the custody of Melissa and child support from Jacquelyn. The court awarded temporary custody to James and reasonable visitation rights to Jacquelyn. Thereafter, James moved back to Kentucky with Melissa.
In October of 1979, while the dissolution action was still pending, Jacquelyn asked the court to modify its temporary order and award joint custody to each of the parents. The court denied the request for
Jacquelyn and James filed financial declarations with the court. James’ declaration stated that his gross monthly income was $990, his net monthly income $682.52. His monthly expenses were $707, including $42 a month toward the costs of transporting Melissa home after her visits to her mother. Jacquelyn reported a gross monthly income of $398, a net monthly income of $373, and monthly expenses of $580. In her attached declaration, Jacquelyn stated that she would spend as much money on Melissa during her four months of visitation as James spent during the rest of the year.
At a hearing on Jacquelyn‘s change of custody motion, she testified that she could work full time if she wished. She said, “The only reason I am on part time at work is because I asked for it. You know, at the time if I needed to have more money to support Missy I could be put on full time anytime.”
In April of 1980, the court entered аn interlocutory decree dissolving the marriage. The prior orders awarding custody to James, granting Jacquelyn specified visitation rights, and dividing the transportation costs between the parents were incorporated into the decree. James’ request for child support was denied.
James appealed two issues, the denial of child support and the order dividing the transportation costs. The Court of Appeal affirmed the trial court judgment and fined James’ attorney $500 for the filing of a frivolous appeal. (See
James’ petition for a hearing before this court was granted. The grant of the petition for hearing nullified the penalty, vacated the Court of Appeal opinion, and required this court to decide the appeal as if it were originally taken here. (Menchaca v. Helms Bakeries, Inc. (1968) 68 Cal.2d 535, 541, fn. 1 [67 Cal.Rptr. 775, 439 P.2d 903]; Knouse v. Nimocks (1937) 8 Cal.2d 482, 483-484 [66 P.2d 438]; see 6 Witkin,
II.
James challenges the trial court order denying his request for child support and requiring him to share the transportation costs associated with Melissa‘s visits to her mother. He argues that the trial court improperly failed to consider Jacquelyn‘s earning capacity, werе she to accept full-time employment. He claims that the denial of child support was based on a statute which unconstitutionally distinguishes between the child support obligations of a mother and of a father.
It has long been the rule in this state that a parent‘s earning capacity may be considered in determining spousal and child support. (See, e.g., Eidenmuller v. Eidenmuller (1869) 37 Cal. 364, 366; Webber v. Webber (1948) 33 Cal.2d 153, 160 [199 P.2d 934].) As Justice Tobriner stated over 20 years ago, “the cases have frequently and uniformly held that the court may base its decision on the husband‘s ability to earn, rather than his current earnings.” (Meagher v. Meagher (1961) 190 Cal.App.2d 62, 64 [11 Cal.Rptr. 650]; see also Pencovic v. Pencovic (1955) 45 Cal.2d 97, 100-102 [287 P.2d 501]; In re Marriage of Chala (1979) 92 Cal.App.3d 996, 999 [155 Cal.Rptr. 605].)
James contends that the trial court disregarded this well-established rule because it relied on a sex-biased statute, former Civil Code section 196.1 Former section 196 provided, “The parent entitled to the custody of a child must give him support and education suitable to his circumstances. If the support and education which the father of a child is able to give are inadequate, the mother must assist him to the extent of her ability.” The clear implication of the statute was that the father had a greater support obligation than the mother, who was required to assist him only if his resources were inadequate.
Section 196 was first enacted in 1872. Some courts have interpreted the statute as placing the primary duty of support on the father with the mother‘s duty secondary to his. (Stargell v. Stargell (1968) 263
James asks this court (1) to assume that the trial court applied the sex-biased interpretation of former section 196 and (2) to find the statute unconstitutional. However, it is not necessary to decide whether former section 196, as interpreted by some courts, was unconstitutional since James points to no evidence in the record to support his claim that the trial court applied a sex-biased standard.
The extent of child support in each case is within the discretion of the trial court. (Armstrong v. Armstrong (1976) 15 Cal.3d 942, 947 [126 Cal.Rptr. 805, 544 P.2d 941].) A trial court‘s ruling will be dis-
Jacquelyn testified that she would spend as much on Melissa during her four months of visitation as Jаmes would spend during the rest of the year. She also asserted that Melissa was in need of clothing and medical care when she came to visit her mother. Since the record does not indicate how many hours Jacquelyn worked or the amount she would earn if she worked full time, this court must assume that the trial court considered all the evidence before it and properly concluded that Jacquelyn‘s resources were insufficient to enable her to provide for Melissa when she stayed with her mother and pay child support as well.4 The record in this case thus fully supports the conclusion that the trial court reached its decision by applying a sex-neutral standard to the facts before it.
Since the record suрports the trial court‘s rulings, no abuse of discretion has been shown. The judgment is affirmed.
III.
The Court of Appeal rejected James’ claim that the trial court abused its discretion in refusing to order Jacquelyn to pay child support and ordering him to share the transportation costs of Melissa‘s visits to her mother. Terming the appeal “utterly hopeless,” with “no room for reasonable disagreement,” the Court of Appeal imposed a $500 penalty on appellant‘s attorneys for prosecuting a frivolous appeal. (See
In a petition for rehearing before the Court of Appeal, appellant contended, without contradiction, that he had received no warning that the court might deem the appeal frivolous and impose a penalty. The sanction was not mentioned in the appellate settlement conference. Appellant had agreed to accept the result of the settlement conference—respondent rеjected it—and had waived oral argument.
The appеllate courts have in the past imposed sanctions on attorneys for the prosecution of frivolous appeals. (See, e.g., Estate of Wempe (1921) 185 Cal. 557, 564 [197 P. 949] [appeal had “not a semblance of merit” and the “only rational result could be delay“]; Seidell v. Tuxedo Land Co. (1932) 216 Cal. 165, 171 [13 P.2d 686] [appeal was “entirely barren of merit” and was “taken for delay merely“].) However, the published opinions fail to provide a clear definition of the concept “frivolous.”5 One commentator, calling the definitional problems “vexing,” described judicial attempts to distinguish a frivolous appeal from a merely meritless appeal as “diverse and, on occasion, entertaining.” (Kallay, The dismissal of frivolous appeals by the California Courts of Appeal (1979) 54 Statе Bar J. 92, 95; see also Comment, The Vexa-
This lack of definition presents a problem both for attorneys and for the administration of justice. Counsel face the danger of being trapped between their obligation to their clients to diligently pursue any possibly meritorious claim, and their obligation to the judicial system to refrain from prosecuting frivolous claims. “[A]n attorney is often confronted with clashing obligations imposed by our system of justice. An attorney has an obligation not only to protect his client‘s interests but also to respect the legitimate interests of fellow members of the bar, the judiciary, and the administration of justice.” (Kirsh v. Duryea (1978) 21 Cal.3d 303, 309 [146 Cal.Rptr. 218, 578 P.2d 935, 6 A.L.R. 4th 334].)
The courts have frequently disciplined attorneys who do not adequately protect their clients’ interests. (See, e.g., Lewis v. State Bar (1981) 28 Cal.3d 683 [170 Cal.Rptr. 634, 621 P.2d 258].) In addition, the cases have rejected numerous attempts to hold attorneys liable for good faith decisions to assert their clients’ claims. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 344 [134 Cal.Rptr. 375, 556 P.2d 737]; Weaver v. Superior Court (1979) 95 Cal.App.3d 166, 182-183 [156 Cal.Rptr. 745]; Umansky v. Urquhart (1978) 84 Cal.App.3d 368, 372-373 [148 Cal.Rptr. 547]; Norton v. Hines (1975) 49 Cal.App.3d 917, 921-924 [123 Cal.Rptr. 237]; Tool Research & Engineering Corp. v. Henigson (1975) 46 Cal.App.3d 675 [120 Cal.Rptr. 291].)
The strong public policy in favor of the peaceful resolution of disputes in the courts requires that attorneys not be deterred from pursuing legal remedies because of a fear of personal liability. To decide otherwise “would inject undesirable self-protective reservations into the attorney‘s counselling role,” and prevent counsel from devoting their entire energies to their clients’ interests. (Goodman v. Kennedy, supra, 18 Cal.3d at p. 344.) “If the issue which the attorney is called upon to decide is fairly debatable, then under his oath of office, he is not only authorized but obligated to present and urge his client‘s claim upon the court.” (Murdock v. Gerth (1944) 65 Cal.App.2d 170, 179 [150 P.2d 489]; see Kirsh v. Duryea, supra, 21 Cal.3d at p. 309;
The difficulty is in striking a balance that will ensure both that indefensible conduct does not occur and that attorneys are not deterred from the vigorous assertion of clients’ rights. (See Oberman, Coping With Rising Caseload II: Defining The Frivolous Civil Appeal (1981) 47 Brooklyn L.Rev. 1057, 1058.) In judging whether an attorney has violated a duty to a client in choosing not to assert a claim, this court has granted the attorney latitude to makе reasonable choices among competing options. “[I]t is not sufficient to show that some or many prudent attorneys would not have made the mistake. The attorney‘s choice to honor the public obligation [to refrain from prosecuting meritless claims] must be shown to have been so manifestly erroneous that no prudent attorney would have done so.” (Kirsh v. Duryea, supra, 21 Cal.3d at p. 309.)
Similarly, counsel must have the freedom to file appeals on their clients’ behalf without the fear that an appellate court will second-guess their reasonable decisions. “Free access to the courts is an important and valuable aspect of an effective system of jurisprudence, and a party possessing a colorаble claim must be allowed to assert it without fear of suffering a penalty more severe than that typically imposed on defeated parties.” (Young v. Redman (1976) 55 Cal.App.3d 827, 838 [128 Cal. Rptr. 86].)
Appellant suggests that it may not be possible to formulate a definition of frivolous that adequately balances these competing interests. He claims that any definition will be so vague as to unduly deter the exercise of the right to appeal. However, the courts of this state have not yet attempted to implement a uniform standard, carefully framed and
The California cases discussing frivolous appeals provide a starting point for the development of a definition of frivolous. Those cases apply standards that fall into two general categories: subjective and objective. (See Cal. Civil Appellate Practice (Cont.Ed.Bar 1966) § 7.11, p. 234.) The subjective standard looks to the motives of the appellant and his or her counsel. Thus, in Simon v. Bemis Bros. Bag Co. (1955) 131 Cal.App.2d 378, 382 [280 P.2d 528], the court rejected a claim that an appeal was frivolous, noting that counsel presented his argument in a “courteous and gracious manner” and seemed to believe “fervently” that he might succeed on the merits. Similarly, the courts have frequently looked at the “good faith” of the appellant and have penalized appellants where the only purpose of the appeal was delay. (Hall v. Murphy (1960) 187 Cal.App.2d 296, 299 [9 Cal.Rptr. 547]; Union M. Co. v. Chicago Bond. etc. Co. (1918) 36 Cal.App. 585, 587 [172 P. 1113]; Miller v. R. K. A. Management Corp. (1979) 99 Cal.App.3d 460, 469-470 [160 Cal.Rptr. 164]; In re Marriage of Schwander (1978) 79 Cal. App.3d 1013, 1022 [145 Cal.Rptr. 325]; In re Marriage of Millet (1974) 41 Cal.App.3d 729, 732 [116 Cal.Rptr. 390].)
The objective standard looks at the merits of the appeal from a reasonable person‘s perspective. “The problem involved in determining whether the appeal is or is not frivolous is not whether [the attorney] acted in the honest belief he had grounds for appeal, but whether any reasonable person would agree that the point is totally and completely devoid of merit, and, therefore, frivolous.” (Estate of Walters (1950) 99 Cal.App.2d 552, 558 [222 P.2d 100]; see also Kunza v. Gaskell (1979) 91 Cal.App.3d 201, 211 [“As a reasonable person, he could not conceivably have anticipated a successful appeal“]; Moore v. El Camino Hosp. Dist. (1978) 78 Cal.App.3d 661, 664 [144 Cal. Rptr. 314]; Guardianship of Pankey (1974) 38 Cal.App.3d 919, 927 [113 Cal.Rptr. 858]. See Anders v. California (1967) 386 U.S. 738, 744 [18 L.Ed.2d 493, 498, 87 S.Ct. 1396] [аn appeal is not frivolous if “any of the legal points [are] arguable on their merits“].)
The two standards are often used together, with one providing evidence of the other. Thus, the total lack of merit of an appeal is viewed as evidence that appellant must have intended it only for delay. (See,
Both strands of this definition are relevant to the determination that an appeal is frivolous. An appeal taken for an improper motive represents a time-consuming and disruptive use of the judicial process. Similarly, an appeal taken despite the fact that no reasonable attorney could have thought it meritorious ties up judicial resources and diverts attention from the already burdensome volume of work at the appellate courts. Thus, 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. (See Estate of Walters, supra, 99 Cal.App.2d at pp. 558-559.)
However, any definition must be read so as to avoid a serious chilling effect on the assertion of litigants’ rights on appeal. Counsel and their clients have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win on appeal. An appeal that is simply without merit is not by definition frivolous and should not incur sanctions. Counsel should not be deterred from filing such appeals out of a fear of reprisals. Justice Kaus stated it well. In reviewing the dangers inherent in any attempt to define frivolous appeals, he said the courts cannot be “blind to the obvious: the borderline between a frivolous appeal and one which simply has no merit is vague indeed .... The difficulty of drawing the line simply points up an essential corollary to the power to dismiss frivolous appeals: that in all but the clearest cases it should not be used.” (People v. Sumner, supra, 262 Cal.App.2d at p. 415.) The same may be said about the power to punish attorneys
Viewed under this standard, James’ appeal in this case cannot be deеmed frivolous. There is no evidence of subjective bad faith. In contrast to most of the cases where sanctions have been imposed, James had nothing to gain from delay. The trial court ruling denied him support payments from Jacquelyn. The appeal kept open the possibility that he might receive those payments. It did not postpone his obligation to do anything except pay his share of Melissa‘s transportation costs.
On the merits, the appeal raised substantial questions of family law. James asserted that the trial court applied a sex-biased standard in determining that Jacquelyn should not pay child support. Although this court has affirmed the trial court, it was not unreasonable for James’ counsel to think thе issues were arguable. There are at least two sides to every legal dispute, and reasonable attorneys will often disagree about the merits of a particular case. Here, it cannot be said that “any reasonable person would agree that [James’ argument] is totally and completely devoid of merit ....” (Estate of Walters, supra, 99 Cal.App.2d at p. 558.) This appeal was not frivolous.
IV.
Vague definitions of what constitutes a frivolous appeal raise the danger that attorneys will be deterred from asserting valid claims out of a fear that they will incur court sanctions. This in turn will deprive their clients of their day in court. The lack of precise guidelines or of any procedural protections presents an additional danger that attorneys will be fined or severely criticized without nоtice or an opportunity to respond to the charges against them.
Due process requires that certain basic procedural protections be afforded before the state deprives an individual of property. (See Wolff v. McDonnell (1974) 418 U.S. 539, 557-558 [41 L.Ed.2d 935, 952, 94 S.Ct. 2963] [“The Court has consistently held that some kind of hearing is required before a person is finally deprived of his property interests“]; Fuentes v. Shevin (1972) 407 U.S. 67, 80-81 [32 L.Ed.2d 556, 569-570, 92 S.Ct. 1983]; Mullane v. Central Hanover Tr. Co. (1950) 339 U.S. 306, 313 [94 L.Ed. 865, 872-873, 70 S.Ct. 652]; Blumenthal v. Superior Court (1980) 103 Cal.App.3d 317, 320 [163 Cal. Rptr. 39]; Hughes v. Neth (1978) 80 Cal.App.3d 952, 954 [146 Cal.
This claim has merit. Fundamental constitutional mandates require that the basic protections of due process be followed before an attorney is fined for prosecuting a frivolous appeal. (See Blumenthal, supra, 103 Cal.App.3d at p. 320, annulling award of discovery sanctions for lack of notice to attorney.)
The right to pursue one‘s chosen profession free from arbitrary state interference also is protected by the due process clauses of both the state and federal Constitutions. (
Constitutional due process principles are offended by the summary imposition of sanctions by the appellate courts. It is true that the public criticism and fine at issue when a Court of Appeal reprimands an attorney for filing a frivolous appeal are lesser sanctions than the complete exclusion from the profession involved in Endler (Commissioner of Corporations threatened to revoke the license of any broker hiring plaintiff) or Yakov (Board of Medical Examiners revoked doctor‘s license). Nonetheless, they are sanctions that potentially could have a devastating impact on an attorney‘s ability to practice law. A public attack on an attorney‘s integrity and motives could seriously impair his or her ability to obtain employment and work effectively within the judicial system. Witkin calls criticism in a published opinion a “severe sanction.” (1 Witkin, Cal. Procedure (2d ed. 1970) Attorneys, § 189, p. 195.) “[F]undamental fairness requires that an individual be permitted to defend himself publicly against official charges, however in-
In addition, there is the danger that any disciplinary process that lacks careful procedural controls may be abused. In a similar situation, this court stressed the dangers that an unguided power to impose sanctions would present. (Bauguess v. Paine (1978) 22 Cal.3d 626 [150 Cal.Rptr. 461, 586 P.2d 942].) In Bauguess, the court held that in the absence of statutory authorization, a trial court may not impose attorney fees as a sanction against an attorney. “Such power in the trial court, unfettered and unbridled, without appropriate safeguards and guidelines,” could lead to the imposition of sanctions not for misconduct but for forceful advocacy. (Id., at p. 639, quoting Young v. Redman, supra, 55 Cal.App.3d 827, 839; see also Roadway Express, Inc. v. Piper (1980) 447 U.S. 752, 767 [65 L.Ed.2d 488, 501-502, 100 S.Ct. 2455] [attorney fees should not be assessed as a sanction without fair notice and an opportunity for a hearing on the record].) The traditional judicial sanction against misconduct by attorneys, contempt, is surrounded by procedural safeguards. “Absent such safeguards, serious due process problems would result” and the “independence of the bar” might be imperiled. (Bauguess, supra, at p. 638.)8
The unguided discretion to impose finеs currently vested in the Courts of Appeal raises the same concerns as the unlimited trial court power addressed in Bauguess. Without procedural protections, there is no control over the fairness of the process or the result. Indeed, in this case a concurring justice stated that he would not have imposed the penalty or published the opinion. He concluded that “there is nothing in this case to distinguish it from a hundred and more other meritless appeals which have been quietly dispatched by this court,” calling it a “target selected apparently at random.”
V.
Due process is a flexible concept, and must be tailored to the requirements of each particular situation. “‘The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.‘” (Endler v. Schutzbank, supra, 68 Cal.2d at p. 170, quoting Cafeteria Workers v. McElroy (1961) 367 U.S. 886, 895 [6 L.Ed.2d 1230, 1236, 81 S.Ct. 1743].) However, the rudiments of fair play include notice, an opрortunity to respond, and a hearing. (See Endler, supra, at pp. 172, 180.) The appellate courts should exercise their statutory power to impose sanctions only after scrupulously observing the due process mandates set forth herein. Penalties for prosecuting frivolous appeals should not be imposed without giving fair warning, affording the attorney an opportunity to respond to the charge, and holding a hearing. Further, when imposing sanctions, the court should provide the attorney with a written statement of the reasons for the penalty. (Cf.
The trial court judgment is affirmed.
Mosk, J., Richardson, J., Kaus, J., and Broussard, J., concurred.
NEWMAN, J., Concurring and Dissenting.—I concur, but I do not agree that “holding a hearing” (ante, this page) is prerequisite to penalizing counsel for a frivolous appeal. The question of frivolousness can be raised at several stages; e.g., by motion to dismiss or at a settlement conference. When counsel knows the charge against him prior to briefing or oral argument, he may use either of those routes to reply. Sometimes, it is true, the court will not perceive the question until after briefing and argument have been completed; and notice may first reach counsel in the form of a declaration, in the court‘s decision or opinion, that sanctions are proposed. Even then, however, the decision or opinion
If a ruling on frivolousness of which counsel had no warning appears in an opinion certified for publication, there is danger that the “severe sanction” of criticism (ante, p. 652) will have effect bеfore a petition for rehearing can be filed or considered. I think that in that situation publication should be deferred until the opinion becomes final as to the court filing it, with additional time to permit counsel to seek a stay from a reviewing court.