Sanctions for Future Expenses

Wife [W] and Husband [H] were married in 2004.  They separated in 2013, then W petitioned for divorce.  During the legal proceedings, W and H argued over ownership of a house in Brazil.  W held title to the house in her name only because H is not a Brazilian citizen.  However, the house was purchased with H’s separate funds – not community funds.

In May of 2015, the court awarded H the house as his separate property and ordered W to have the title to the property changed to his name.  Their divorce became final in September of 2015.

In 2016, H went back into court and requested the judgment be enforced.  The court ordered W to sign legal documents to put the house in H’s name within four weeks.  When W failed to do so, H went back into court and W was found in contempt and sanctioned in the amount of $10,000.

For the next two years, W did not follow the court orders and was continuously found in contempt.  H spent thousands of dollars to get the property transferred in his name with trips to Brazil and hiring a Brazilian attorney to prepare the property’s documentation transfer.  It was his attorney that discovered that W had signed over power of attorney to her mother in Brazil and the house was signed over to W’s Brazilian attorney as payment for legal fees.  H went back into court and requested $500,000 in sanctions for the expenses he incurred to get ownership of the house.  The court awarded H $200,000 in sanctions against W.

W appealed contending that the court could not sanction someone for future behavior only for what had happened already as it states in Section 271 of the Family Code.

Section 271 states “…that a court may base an award of attorney’s fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation…”  In other words, a court can sanction a party for past behavior only, not speculate on a party’s future behavior.

The Appellate Court did not agree with W’s argument, noting that a party requesting sanctions under Section 271 does not have to wait until all matters are concluded to determine the amount.  To prevent parties from requesting sanctions until all issues have been resolved would not be a deterrent to the offending party.  A judge may make a determination of costs and attorney’s fees based on what will be needed to resolve the bad behavior in the future as long as the amount ordered can be justified.

Here, the trial court did not explain how it came to the total in sanctions, so the case was remanded back to the trial court to specifically show how the court came to the amount of $200,000.

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