Lead Opinion
Opinion
Did thе 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 df Appeal follow before fining or criticizing attorneys for prosecuting frivolous appeals? (See Code Civ. Proc., § 907; Cal. Rules of Court, rule 26 (a).)
I.
Jacquelyn and James iFlaherty 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 At this poirit, the guardianship petition was withdrawn.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 (he 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 an interlocutory decree dissolving the marriage. The prior orders awarding custody tо 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 transporation costs. The Court of Appeal affirmed the trial court judgment and fined James’ attorney $500 for the filing of a frivolous appeal. (See Code Civ. Proc., § 907; Cal. Rules of Court, rule 26(a); see post at p. 646.) The court chastized the attorney for burdening the court with a patently unmeritorious appeal and certified the opinion for publication.
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)
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, were she to accept full-time employment. Hе claims that the denial of child support was based on a statute wihich 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)
James contends that the trial court disregarded this well-established rule because it relied on a sex-biased statute, former Civil Code section 196.
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)
Jacquelyn testified that she would spend as much on Melissa during her four months of visitation as James would spend during the rest of the year. She also asserted that Melissа 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.
Since the record supports the trial court’s rulings, no abuse of discretion has been shown. Thе 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 Code Civ. Proc., § 907; Cal. Rules of Court, rule 26(a).) The court stated
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— resрondent rejected it — and had waived oral argument.
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 pertinent part, “Where the appeal is frivolous or taken solely for the purpose of delay .. . 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.” Neither thej Rules of Court nor the statutes provide аny guidance as to the definition of a frivolous appeal.
The appellate courts have in the past imposed sanctions on attorneys for the prosecution of frivolous appeals. (See, e.g., Estate of Wempe (1921)
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)
The courts have frequently disciplined attorneys who do not adequately protect their clients’ interests. (See, e.g., Lewis v. State Bar (1981)
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,
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 make reasonable сhoices 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 merit-less claims] must be shown to have been so manifestly erroneous that no prudent attorney would have done so.” (Kirsh v. Duryea, supra,
Similarly, counsel must liave 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 colorable claim must be аllowed to assert it without fear of suffering a penalty more severe than that typically imposed on defeated parties.” (Young v. Redman (1976)
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)
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)
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,
Viewed under this standard, James’ appeal in this case cannot be dеemed 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 Jamés’ counsel tо think the 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,
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 criticizеd without notice 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)
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,
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. (Cal. Const., art. I, § 7; U.S. Const., 14th Amend.; Endler v. Schutzbank (1968)
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 judical system. Witkin calls criticism in a published opinion a “severe sanction.” (1 Witkin, Cal. Procedure (2d ed. 1970) Attorneys, § 189, p. 195.) “[Fundamental 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)
The unguided discretion to impose fines 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,
The trial court judgment) is affirmed.
Mosk, J., Richardson, J., Kaus, J., and Broussard, J., concurred.
Notes
Civil Code section 196 was repealed and reenacted with revisions in 1980. (Stats. 1980, ch. 1341, §§ 1 and 2, p. 4744.) Section 196 currently provides: “The father and mother of a child have an equalj responsibility to support and educate their child in the manner suitable to the child’s circumstances, taking into consideration the respective earnings or earning capacities tif the parents.”
So interpreted, former section 196 appears to state a sex-biased distinction that violates the state and federal Constitutions. ‘“To withstand scrutiny’ under the Equal Protection Clause, “‘classifications by gender must serve important governmental objectives and must be substantially related tо achievement of those objectives.’” Califano v. Webster,
The Supreme Court also rejected the contention that the statute served legitimate state interests either by eliminating the need for burdensome hearings as to need or by compensating women for past disсrimination. First, individual hearings were held in any event, so the statute did not reduce the administrative burden. (Orr v. Orr, supra,
Virtually identical considerations would apply to a statute placing the primary duty of child support on fathers. (See Hull, Sex Discrimination and the Equal Protection Clause: An Analysis of Kahn v. Shevin and Orr v. Orr (1979) 30 Syracuse L.Rev. 639, 672 [Orr holding will extend to sex-biased child support statutes].) First, outmoded beliefs that it is the man’s responsibility to support the family clearly would not be sufficient to justify such a sex-based discrimination. Second, a sex-neutral child support stаtute would impose no greater burden on the judicial system, since individual determinations of financial resources and needs are already part of the procedure for awarding child support.
Third, a statute which relieves women of an equal responsibility for the support of their children benefits only those women who otherwise would be ordered to pay child support, the most financially secure women. In addition, child support differs from the spousal support at issue in Orr in that it is purely for the benefit of the child. It does not reflect the past relationship between the parents, and should be based only on the
Finally, under the California Constitution sex-based distinctions are subject to strict scrutiny, a higher standard of review than that required by-the federal Constitution. (Sail'er Inn, Inc. v. Kirby (1971)
These cases also read formér section 196 as requiring the court to consider the resources of both parents in determining the proper level of support payments. Thus, the courts declined to look first to see whether the resources of the custodial parent were “inadequate,” as suggested by the language of former section 196. Rather, they found that the test under that statute “is not an absolute test dependent upon whеther the husband has any resources at all to furnish adequate support for his child, but a relative test in which the legitimate needs of the child must be whittled down or expanded in accordance with resources available from his parents.” (Levy v. Levy, supra,
Appellant relies on In re Marriage of Muldrow (1976)
In addition, there appear to be no guidelines governing the appropriate amount of the fine that should be imposed jin a given situation.
In Crook v. Crook (1960)
Of course, an attorney takes the risk in every case that his or her legal work will be held up to public scrutiny. However, this risk should be distinguished from the risk of a public attack on the attorney’s integrity or ethics. The briefing and argument on an appeal provide the attorney an opportunity to assert and defend a legal position. Personal attacks on attorneys should not be made without providing the lawyer an opportunity to defend his or her conduct.
ln 1981, the Legislature amended the Code of Civil Procedure to authorize trial courts to impose fines on a party or attorney, including attorney fees, as a sanction for actions taken in bad faith which are frivolous or cause unnecessary delay. (Code Civ. Proc., § 128.5, added by Stats. 1981, ch. 762, § 1, No. 5 Deering’s Adv. Legis. Service, p. 878.) The statute provides that the sanctions cannot be imposed without affording notice and an opportunity to be heard, thus satisfying the due process concerns expressed in Bauguess.
Concurrence Opinion
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 cаn 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 before 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.