Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Wednesday, November 1, 2006

Case Law Development: Filing Separate Civil Action to Enforce Temporary Orders During Pendency of Dissolution is Sanctionable Conduct

The California Court of Appeals affirmed a judgment of dismissal and sanctions against a wife who, while her marital dissolution proceeding was pending, brought a separate civil action against her husband and two accounting firms. The wife claimed her husband failed to make two interim monthly payments required under the terms of a stipulation and order in the dissolution proceeding, and further claimed his conduct constituted intentional infliction of emotional distress. The wife also sought a declaration that the husband and the accounting firms were required to provide her with tax returns and related documents she had previously sought in the dissolution proceeding.  The trial court dismissed the complaint against both husband and the accounting firm.

The court of appeals concluded that wife's suit

is a textbook example of an improper attempt to wage "family law ... by other means ... ."  When a dissolution proceeding is pending, neither party to that proceeding has the right to file a separate civil action to enforce an interim support order issued in the dissolution proceeding. The same rule applies to filing a purported tort action arising from conduct that relates to the interim support order and, but for the dissolution proceeding, would not have occurred.

The court was careful to note that while it is true that spouses may bring tort actions against one another, that principle "has no application when a dissolution proceeding is pending, and it certainly has no application when a spouse is attempting to enforce an interim order in a pending dissolution proceeding."  The court commented that it need not "draw a line between spousal cases that might properly be brought in a separate civil action and those that may not' because wife's action here "clearly falls on the far side of any line that might conceivably be drawn."

After the trial court in the civil action sustained the husband's demurrer, the husband sought sanctions in the family law court. The family law court granted the husband's motion, ordering the wife to pay $ 32,950 to the husband as sanctions, and ordering the wife and her attorneys to pay that sum to the husband . The court of appeals also affirmed this order, holding that wife's attempts to bring the separate civil suit were so clearly without support given existing precedent that the suit was "specious and plainly not warranted by existing law."  The court also rejected wife's argument that the family court could not sanction her for filing a frivolous action in another court, concluding  that

the "conduct" precipitating the sanctions is the act of filing an action in a court where it clearly does not belong, in order to avoid litigating the matter before the family court judge who made the support order in the first place and who was thoroughly familiar with the parties and the issues. In this situation, it is difficult to see how the judge in the civil action would be in a better position than the family law judge to determine the propriety of sanctions for Ms. Burkle's forum-shopping conduct. Indeed, it seems to us the reverse is true.

Burkle v. Burkle, 2006 Cal. App. LEXIS 1694 (October 30, 2006)
Opinion on the web (last visited November 1, 2006 bgf)

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