One of my favorite blogs on family law has an interesting article on a local court case that has gone to appeal.

You can read a more detailed synopsis of the case there.

The case apparently involved 18 volumes and a motion for sanctions under Family Code 271, what is known as a “Feldman” Motion, referring to the landmark case In re Marriage of Feldman (2007) 153 Cal.App.4th 1470.

Feldman motions are an important tool in the arsenal of the family law attorney, and the code section was crafted to eliminate the gamesmanship from dissolution proceedings by punishing those who “hide the ball”.  Generally speaking, dissolution cases with assets can often create opportunities for a spouse to take advantage of their vulnerable partner by hiding money, other assets, or other property.

The method of defeating what is referred to as the “out” spouse (the one not in possession of the assets) is simple: one simply refuses to respond to communications and refuses to respond to discovery, running the risk of sanctions with the reward of getting everything.  Generally speaking, facing a “scorched earth” lawyer like that will require about $50,000 in legal fees.  Since most attorneys cannot front those costs, the lawyer with money wins.  If a court fails to grant attorney fees (which requires expensive lawyering) early in the proceeding, the “out” spouse is denied a fair adversarial hearing and the “in” spouse simply wins. (see “Winning By Financial Attrition: A Study of Attorney Fees…” by Janet Bowermaster, California Western Law Review, 2001 which is as timely today as it was back then)

The difference in the Davenport (Marriage of Davenport (2011) 194 Cal.App.4th 1507)case appears to be that the wife either had access to substantial assets, because there was tens of millions of dollars in the marital estate, or the Watters firm was willing to front the work, as they were aware of the money at stake and stood to gain considerable sums.

The only thing clear at this point is that the appeals court backed Judge Wong’s decisions in this matter, who not only denied the motion but granted sanctions in the amount of $100,000 against the the wife despite the fact that the Watters firm apparently felt they needed 8 discovery motions.  The appeals decision is curious in it’s lack of factual detail.  Although the legal reasoning is detailed, it is unclear from reading it what information was obtained by the Watters firm, and what information was not obtained.  The fact that there were 18 court files, along with comments in the appellate decision, seems to indicate the Watters firm believed they were denied reasonable discovery.  I cannot say that based upon my experience with the courts that this is necessarily untrue.

The decision appears to focus primarily on the conduct of a young, inexperienced attorney who was placed on the case by the Watters firm.  Although the decision describes conduct that is unprofessional and uncivil, it is curiously silent on the conduct of the opposing counsel, who in the view of the Watters firm engaged in dilatory tactics and who aided the husband in hiding his assets.

I consider these matters far more serious than an uncivil letter.

Assuming the Watters firm is correct in their assessment, the message the court appears to be sending is that you can go ahead and engage in the kind of tactics which will delay proceedings, frustrate settlement and clog up the courts unnecessarily, but don’t be rude about it.

The appeals court perhaps wanted Davenport to stand for the proposition that lawyers seeking discovery cannot engage in conduct that frustrates settlement by asking for more discovery than necessary and failing to proceed informally when possible, or being uncivil.  I fear that what they have really done is yet again side with the “in” spouse against the “out” spouse by failing to realize that although the Family Code requires informal discovery and dissolution proceedings should not be adversarial, this is not what is occurring in high-conflict cases.  What is happening is that most of the time, the one with the money wins.