Opinion
Abrаham Lincoln once said, “He who represents himself has a fool for a client.” Here, the client is an attorney who represented himself in the trial court. He now represеnts himself on appeal. He is unschooled on the basics of appellate law, suggesting that Lincoln’s observation applies on appeal. We understand that emotions run high in family law litigation and that this may cloud the judgment of a party. But this does not excuse the filing of a “creative” (i.e., misleading or incomplete or inaccurate) income аnd expense declaration; or perjury, as referenced by the trial court; or the filing of a frivolous appeal.
Attorney Robert N. Greenberg (husband) appeals from an order awarding $2,800 fees and sanctions to wife. The sanctions order followed a hearing on an order to show cause (OSC) compelling husband to honor a 2008 judgment dividing community property. (Fam. Code, §§ 270, 271.) The sanctions order is supported by substantial evidence and easily within the trial court’s discretion. The appeal flies in the face of what we describe as an adverse factual finding. This adverse factual finding creates an impossible platform upon which to predicate legal error. Where, as here, an appeаl is premised upon facts expressly not credited by the trial court, i.e., an adverse factual finding, the appeal is frivolous and sanctions may be imposed.
Procedural History
On November 4, 2008, a mаrital dissolution judgment was filed dividing, among other things, a $19,475.18 account receivable from husband’s law
Wife filed an OSC on November 19, 2009, to determine whethеr husband “can forgive attorney’s fees owed by J. M. on the account receivable.” Following a hearing, the trial court ordered husband to pay wife $9,737.59 as ordered in the 2008 judgment. She wаs awarded $800 attorney fees (Fam. Code, § 2030) and $2,000 sanctions (Fam. Code, §§ 270, 271).
Account Receivable
Husband asserts that the money due and owing on the J.M. account was “forgiven,” thus discharging his obligation to pay wife $9,737.59. As the triаl court ruled, the argument fails because no appeal was taken from the 2008 judgment. Right or wrong, the judgment determined that the account receivable was community propеrty and ordered husband to pay wife $9,737.59 as an equalizing payment. It is settled that a final judgment cannot be directly or collaterally attacked based on intrinsic fraud or mistake. (Cedars-Sinai Medical Center v. Superior Court (1998)
In addition to the above rule prohibiting collateral attack, the trial court found there was no evidence that the J.M. fee аgreement was anything other than an hourly fee agreement. It said: “Husband can write off or otherwise forgive the obligation as between himself and the client . . . [(J.M.)] but he cannot escаpe his responsibility to pay wife the sum of $9737.59 representing V2 the amount of the receivable. The Judgment orders him to make payments . . . .” It does not matter that a trial court, in the J.M. case, did not order the payment of attorney fees to her.
Attorney Fees and Sanctions in the Trial Court
Wife’s declaration, which was credited by the trial court, states: (1) Husband’s monthly income increased dramatically from $1,395 а month
Husband claims he lacks the ability to pay attorney fees even though his imputed income in prior proceedings was $4,000 a month. The trial court found that the sanctions order “will not impose an unreasonablе financial burden on him.” It also said: “[T]here is no reliable way to determine husband’s actual net disposable income in light of the testimony that was received during the hearings on Septеmber 3 and October 29, 2009. . . . [f] Based on the testimony of some witnesses at the earlier hearings, ... the court continues to have concerns regarding the accuracy of the reрresentations as to husband’s income and expenses. Further, in light of that testimony the court cannot and does not ignore the perjury in which husband engaged.”
Appellate Review of Sanctions
Husband has no appreciation for the trial court’s order which can only be viewed as an adverse factual finding. It is fatal to the appeal. At oral argument he complained that the trial cоurt “ignored” the evidence supporting his theory of trial. Not so. The trial court sits as trier of fact and it is called upon to determine that a witness is to be believed or not believed. This is the nature of factfinding. “The trier of fact is the sole judge of the credibility and weight of the evidence . . . .” (Estate of Teel (1944)
Family Code section 271 “advances the policy of the law ‘to promote settlement and to encourage cooperation which will reduce the cost of litigation.’ [Citation.] Family law litigants who flout that policy by engaging in conduct that increases litigation costs are subject to the imposition of attorneys’ fees and costs as a sanction. [Citations.]” (In re Marriage of Petropolous (2001)
Conclusion
Husband, a propria persona attorney, suffers from a lack of objectivity. (Estate of Gilkison (1998)
The record on appeal does not show that the trial court reported husband to the State Bar. We order the clerk of this court to send a copy of this opinion affirming the trial court’s order to the State Bar. Whether husband should be disciplined is addressed to the judgment of the State Bar and we express no opinion thereon.
Gilbert, P. J., and Coffee, J., concurred.
Notes
Respondent (wife) has not filed a brief. Nor has she asked for sanctions on appeal for the filing of a frivolous appeal. We have elected not to issue an OSC for sanctions payable to the Court of Appeal. But the appeal is frivolous. We refer the affirmed trial court’s sanctions order to the State Bar for investigation. (See Bus. & Prof. Code, § 6086.7.)
The reference to peijury bolsters the trial court’s factfinding. This reference concerns husband’s false denial, under oath, that he did not have a sexual relationship with J.M. Husband was disciplined by the State Bar for his conduct.