If your ex continuously files frivolous motions to modify child support or spousal support orders you can file a motion that requests monetary sanctions.
Sanctions under Code of Civil Procedure section 128.7 (section 128.7) may be appropriate if you can establish that the most recent motion has no merit and it was filed for an improper purpose. Section 128.7 states that attorneys and parties certify that every pleading and motion “is not being presented primarily for an improper purpose, such as to harass,” and that the allegations in the motion “have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.” (§ 128.7, subd. (b)(1) & (3).) The primary purpose of section 128.7 is to deter filing abuses. (Musaelian v. Adams (2009) 45 Cal.4th 512, 519.) Essentially, “the statute imposes a continuing obligation on a party and counsel to insure that claims are factually and legally sound.” (Rubenstein v. Doe No. 1 (2016) 245 Cal.App.4th 1037, 1052.)
Section 128.7 “requires only that the conduct be objectively unreasonable.” (In re
Marriage of Reese & Guy (1999) 73 Cal.App.4th 1214, 1221.) Sanctions are warranted
when a pleading or motion is filed “not to assert any arguably legitimate legal right but to
frustrate and impede” the other party. (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1422 (Hopkins.)
A support order is modifiable upon a material change of circumstances since the last order. But where there is no substantial evidence of a material change of circumstances, an order modifying a support order will be overturned for abuse of discretion. (See, In re Marriage of West (2007) 152 Cal.App.4th 240, 246.) In other words, a material change in circumstances is a proper purpose for filing a request for modification of support obligations, but where there is no material change in circumstances, sanctions may be appropriate if the motion was filed for an improper purpose, especially if there has been a succession of motions based upon the same facts that have been repeatedly rejected by the court.
If you believe that a request for sanctions is appropriate, the motion requesting sanctions must be filed separately from other motions or requests and it must describe the specific conduct alleged to violate subdivision (b). In other words, it must point out why the prior motion requesting a modification was not based on any new facts or changed material circumstance from the previous motion that had been rejected.
But if the other party withdraws the offending motion or appropriately corrects it, sanctions are not warranted.
If the court finds that sanctions are appropriate under section 128.7, the court may order your ex to pay your reasonable expenses, such as filing fees, and attorney's fees incurred in presenting or opposing the motion. Even if you are not represented by an attorney in court, if you have been hiring an attorney to prepare your court papers, you can request to be reimbursed. Absent exceptional circumstances, a law firm is held jointly responsible for violations committed by its partners, associates, and employees under section 128.7.
This is an area where an experienced Family Law attorney can be of great assistance to you. Good luck.
copyright © 2016 Christine Esser
The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney-client relationship is only established when a written retainer has been signed.
