Family Law Prof Blog

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

Monday, September 5, 2005

Case Law Developments: Sanctions for Bad Faith Divorce Litigation

In two cases, the Texas Courts of Appeals recently were called upon to review trial court sanctions in divorce litigation.  The first case presented an easy case for sanctions, notable only for the audacity of the petitioner.  The second case presents a much more difficult case, highlighting the sometimes precarious nature of practice for divorce practitioners.

Kramer v. Kramer, 2005 Tex. App. LEXIS 7084 (August 30, 2005)

Upholding sanctions for groundless litigation against petitioner Mother, who filed suit for divorce as next friend for her son, who had been left incapacitated in an accident. She filed the suit knowing that her son’s wife had been appointed his legal guardian.  While she later dismissed the action, the Texas 13th District Court of Appeals (Corpus Christi) upheld the trial court’s sanctions on the basis that Mother had no standing to bring an action for divorce on her son’s behalf and that the action was brought solely for the purposes of harassment.

In the Interest of K.A.R., 2005 Tex. App. LEXIS 7080 (August 30, 2005)

In a much closer question of sanctions, the Texas Fourteenth District (Houston) Court of Appeals, in a 2-1 decision, affirmed an order of sanctions against a petitioner and his attorney.  The case involved protracted litigation, in which father had moved to modify the terms of the custody decree.  Over the course of the proceeding, father apparently changed his mind about proceeding with the motion.  Father eventually committed suicide shortly after the trial.  The Court of Appeals noted that other trials courts might not have ordered sanctions and that some of the basis for the trials court’s sanctions were ill-considered, it held that the trial court sanction was justified by one of its bases: the failure of both attorney and client to attend a court-ordered mediation.   Attorney had been unable to attend the mediation because of a conflicting trial setting, but the trial court found that attorney could have notified it earlier of the conflict.  Father failed to attend the mediation because he did not desire to further participate in any proceedings. 

The majority and dissenting opinions’ characterizations of the attorney’s conduct differed dramatically:

The majority held that, “When Clarke chose to cancel the court-ordered mediation, she effectively usurped the court's role and displaced the court as decision maker. By taking it upon herself to countermand that which the court had ordered, Clarke interfered with a core function of the court.”
The dissent disagreed that failing to attend a court ordered mediation should be considered a per se basis for sanctions. The dissent commented on the position the attorney was placed in given her client’s volatile mental state:

“Ironically, the circumstances of this case aptly demonstrate the indispensability of restraints on the trial court's inherent power to sanction. Because, against the backdrop of multiple settings and appearances inherent in the practice of law generally, attorneys in family law cases represent, advise, and seek to achieve the goals of clients who are often governed by powerful, sometimes overwhelming, emotions. Securing their cooperation with motion and trial settings can be difficult. In most cases, attorneys are able to effectively counsel their clients to ensure full participation, but there are those times when a client will be completely uncooperative despite the attorney's best efforts. In those cases, as in this case, the attorney should not be sanctioned for conduct attributable solely to an unpredictable and irrational client.”


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