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In Re Marriage of Robert and Pamela Greenberg. v. Pamela P. Greenberg

April 28, 2011


(Super. Ct. No. SD034644) Brian J. Back, Judge Superior Court County of Ventura

The opinion of the court was delivered by: Yegan, J.


(Ventura County)

Abraham 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 represents 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 and 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 appeal 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.*fn1

Procedural History

On November 4, 2008, a marital dissolution judgment was filed dividing, among other things, a $19,475.18 account receivable from husband's law practice. Husband was ordered to pay wife $9,737.59, representing former wife's community property interest on the Jenine M. (J.M.) account. He refused to pay the $9,737.59 based on his theory the J.M. fee agreement was an "as awarded by the court" fee agreement. Because no fees were awarded in the J.M. matter, husband claimed the account receivable was "reduced to zero" or "forgiven."

. Wife filed an OSC on November 19, 2009, to determine whether 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 was awarded $800 attorney fees (§ 2030) and $2,000 sanctions (§§ 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 trial 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 property 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) 18 Cal.4th 1, 10; Jorgensen v. Jorgensen (1948) 32 Cal.2d 13, 18-19; Armstrong v. Armstrong (1976) 15 Cal.3d 942, 950-951; Hogoboom & King, Cal. Practice Guide, Family Law (The Rutter Group 2010) ¶18:960, p. 18-245.)

In addition to the above rule prohibiting collateral attack, the trial court found there was no evidence that the J.M. fee agreement was anything other than a 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 escape his responsibility to pay wife the sum of $9739.59 representing ½ 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 a month to $5,103 a month, which is more than twice her income. 2. He "continues to hide his income" and has not provided documentation or produced pay stubs reflecting his seasonal employment at Macy's. 3. Husband and J.M. (the client owing the $19,475.18 account receivable) are living together, that J.M. is employed and receives spousal and child support from a prior marriage, and that husband and J.M. share living expenses." 4. Husband is an attorney with 20 years experience and played "hide the ball," requiring wife to file numerous OSCs and ...

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