III. The trial court committed reversible error in awarding sanctions to Husband which Wife could not afford to pay.
Summary
Florida law has held that sanctions should be fashioned so that the party being sanctioned can afford them. The trial court was aware that Wife could not even afford to pay an attorney to represent her. Her financial affidavit revealed her dire financial situation. Husband was awarded all the marital assets that could be liquidated at the final hearing. Yet, the trial court sanctioned Wife more than $10,000. To a woman who had to borrow $2,500 to retain an attorney, that is a small fortune. The court did not even consider whether or not Wife could pay, nor did it inquire about her financial situation during the final hearing, although Wife had filed two (2) Financial Affidavits with the court indicating her situation. This clearly constitutes an abuse of judicial discretion.
Argument
In the first set of motions to compel granted by the court, sanctions were awarded both to Husband and to Wife in the amount of $350 respectively and effectively canceled each other out (1 R. 51 & 1 R. 142).
The only other order entered by the trial court granting sanctions was in the order striking Wife’s pleadings and preparation and attendance at the deposition (1 R. 190-192). There were no orders finding Wife’s litigation to be “frivolous,” “vexatious” or “overly litigious” at any point during the proceedings[1]. There was no jurisdiction reserved for attorney’s fees for vexatious or overly litigious conduct in ANY order during the entire proceedings. Husband litigated for this sanction during the final hearing in bad faith. McHugh v. McHugh, 819 So. 2d 947 (Fla. 4th DCA, 2002); Cibula v. Cibula, 578 So.2d 519, 521 (Fla. 4th DCA 1991).
Sanctions must be fashioned appropriately
The U.S. Supreme Court in Chambers v. Nasco, Inc., 501 U.S 32 (Supreme Court 1991) warned that sanctions must be fashioned appropriately and that “inherent powers must be exercised with restraint and discretion.” Florida appellate courts have concluded that trial courts “must take into consideration the financial circumstances of the party being sanctioned.” Baker v. Alderman, 158 F.3d 516, 528-29 (11th Cir.1998) Byrne v. Nezhat, 261 F. 3d at 1098-99 n. 53 (Fla. 11th Cir. 2001).
The trial court was aware that Wife could not afford to pay her attorney (5 Tr. 3, lines 19-24), but it failed to even inquire as to Wife’s financial circumstances, or to review either of the financial affidavits she had filed, at any point during the final hearing and said simply “All right” (2 Tr. 16, line 3) and signed the final judgment Order which Husband had submitted.
In Martin v. Automobili Lamborghini Exclusive, Inc., 307 F. 3d 1332, 1335 (Fla. 11th Cir. 2002), the appellate court held that “[S]anction orders must not involve amounts that are so large that they seem to fly in the face of common sense, given the financial circumstances of the party being sanctioned.” The appellate court went on to conclude:
“[S]anctions must never be hollow gestures; their bite must be real. For the bite to be real, it has to be a sum that the person might actually pay. A sanction which a party clearly cannot pay does not vindicate the court's authority because it neither punishes nor deters.”Nothing in the record indicated that Wife was likely to come into a large amount of money in the future. In fact, Husband was awarded all the unliquidated assets of the marriage (i.e., the house and the three vehicles, including the valuable Corvette (2 R. 250-254) and had previously diverted the most valuable asset: the family business (1 R. 39-43 & 139), leaving Wife with nothing.)
Therefore, the trial court erred in awarding sanctions to Husband that Wife had no ability to pay.
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