Date: 02-03-2019

Case Style: In re the Marriage of Catherine Perow and Richard Uzelac, Catherine Perlow v. Richard Uzelac

Case Number: B283457

Judge: Hoffstadt

Court: California Court of Appeals Second Appellate District, Division Two on appeal from the Superior Court, County of Los Angeles

Plaintiff's Attorney: Wendy Rossi

Defendant's Attorney: Jeffrey L. Hoffer

Description: When a party to a dissolution proceeding moves to modify
an existing order, the other party may ask the court for
“affirmative relief” in a responsive pleading, but only if that relief
is “alternative to that requested by the moving party” and “on the
same issues raised by the moving party.” (Fam. Code, § 213,
subd. (a).)1 Is a responding party’s request for sanction-based
attorney fees under section 271 a request for “affirmative relief”?
We conclude that it is not. Accordingly, and because the
appealing party’s other challenge lacks merit, we affirm the
award of sanctions in the form of attorney fees in this case.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
Richard Uzelac (husband) and Catherine Perow (wife) got
married in November 2000. At that time, wife knew that
husband was a convicted sex offender, but she did not know the
details of the underlying crime—namely, that he had molested
his stepdaughter for several years, from when she was 8 to 12
years old. Husband and wife had a daughter in 2007. They
separated in May 2008.
II. Procedural Background
A. Dissolution of marriage
Wife filed for dissolution of her marriage in July 2009,
seeking custody of their daughter.
1. Judgment of dissolution
In response to an ex parte request by husband, the trial
court bifurcated the issue of dissolution from all remaining issues

1 All further statutory references are to the Family Code
unless otherwise indicated.
3
and in December 2010 entered a judgment of dissolution ending
the marriage.
2. Child custody and support
In August 2010, husband and wife stipulated that they
would share legal custody of their daughter, and that wife would
have primary physical custody. Pursuant to that stipulation,
husband had physical custody of their daughter 7 to 12.5 hours a
week; wife was to have custody the rest of the time. Soon
thereafter, husband filed a motion seeking to invalidate the
stipulation on the ground that he had not understood it when he
signed it, but the trial court denied the motion.
B. Husband’s requests for modification of child
custody and support
1. Husband’s requests
Husband later filed two separate requests to modify the
prior stipulation. In April 2012, he filed a request to modify the
child custody arrangement to seek a “50/50” split of time.2 In
February 2014, he filed a request to modify child support in light
of his proposed change to the child custody arrangement.
2. Wife’s responses
Wife filed three responsive declarations while husband’s
requests were still pending. She filed the first in May 2012, the
second in November 2013, and the third in April 2014. In all
three responsive declarations, wife requested “all costs and
attorney’s fees associated with” husband’s April 2012
modification request pursuant to sections 271 and 2030, as well
as Civil Procedure Code section 128.5. In her later responsive

2 Husband also sought a division of funds held in a trust but
did not litigate that issue to resolution.
4
declarations, wife also asked the court to require that husband’s
time with their daughter be monitored because the daughter was
approaching the age of the stepdaughter husband had previously
molested.
3. Entry of judgment on child custody and other
issues
While husband’s requests were still being litigated, the
trial court prepared a further judgment incorporating the parties’
stipulated child custody arrangement and reserving all other
issues, which it filed in early October 2013. The trial court also
made and entered final judgments as to spousal support and
property division in May 2014.
4. Trial court’s hearing and ruling
The trial court held hearings on husband’s requests over
the course of eight days in 2014 and early 2015.
In an oral February 2015 ruling that was memorialized in a
July 2015 order (and later amended in a September 2015 order),
the trial court denied husband’s request to modify the custody
order but granted wife’s request that husband’s visits be
monitored. The court found that husband had not established
the requisite change in circumstances required to alter the
custody stipulation. The court also noted that husband had not
been “honest with the Court” in his motion when he failed to
mention his prior child sex conviction. The court sent husband’s
still-pending motion to modify child support to a different family
court. Right after the court orally explained its intent to transfer
the matter, wife’s attorney clarified that the court’s transfer
order “also cover[ed] the [pending] attorney fees [requests] as
well,” and the trial court did not disagree.
5
C. Wife’s motion for attorney fees and adjudication
of husband’s outstanding request
In February 2016, wife filed a motion renewing her request
for attorney fees and costs arising from husband’s now-rejected
motion to modify the child custody order.3 Following extensive
briefing and three days of hearings in March and April 2017, the
trial court concluded that (1) “jurisdiction to award [attorney]
fees” had been “preserved,” and (2) wife was entitled to attorney
fees as a sanction pursuant to section 271 because husband’s
request for modification of the custody order had been “fatally
flawed [from the outset] because [he] did not disclose [his] status
as a registered sex-offender,” and because husband had “scuttled
[wife’s] proposed settlement” at the last minute. The court
imposed sanctions in the amount of $149,672.12, which was less
than the full amount wife requested.
D. Appeal
Husband filed a timely notice of appeal.
DISCUSSION
In this appeal, husband does not claim that the trial court
abused its discretion in how it applied section 271 in awarding
wife attorney fees. Instead, he argues that the court was wrong
to award such fees in the first place because (1) wife requested
these fees only in her responsive declarations, and section 213
bars the award of “affirmative relief” sought in responsive
declarations if they are not on the “same issues raised by the

3 In March 2016, she filed a companion motion to place
husband’s still pending motion to modify child support back on
calendar. This motion was granted, and the trial court
retroactively and prospectively reduced husband’s child support
obligation.
6
moving party,” and (2) wife’s request for fees was untimely.
Because these issues involve the court’s statutory authority to
award fees under section 271 and also turn in part on statutory
interpretation, our review is de novo. (Carpenter v. Jack in the
Box Corp. (2007) 151 Cal.App.4th 454, 460 [“statutory authority”
to award fees]; Apple Inc. v. Superior Court (2013) 56 Cal.4th 128,
135.)
I. Scope of Relief Under Section 213
When one party to a marital dissolution moves to modify an
existing court order in that proceeding, section 213 authorizes the
other party to file a responsive declaration. In that responsive
declaration, the party may oppose the modification and, if she
desires, may “seek affirmative relief,” but only if that affirmative
relief is “alternative to that requested by the moving party” and
“on the same issues raised by the moving party.” (§ 213, subd.
(a).)4 The proper way for the responding party to expand the
issues is to file a separate motion to modify. (§ 3603.) Because
wife in this case filed only responsive declarations, the propriety
of the attorney fees award turns on the following threshold
question: Is an attorney fees sanction under section 271 a form of
“affirmative relief” within the meaning of section 213?
We conclude that the answer is “no.”

4 In full, subdivision (a) provides: “In a hearing on an order
to show cause, or on a modification thereof, or in a hearing on a
motion, other than for contempt, the responding party may seek
affirmative relief alternative to that requested by the moving
party, on the same issues raised by the moving party, by filing a
responsive declaration within the time set by statute or rules of
court.” (§ 213, subd. (a).)
7
Section 213’s restrictions on affirmative relief are aimed at
keeping each modification proceeding limited in scope to the
substantive issues raised in the moving papers, much as a civil
lawsuit is confined to the claims for affirmative relief raised in
the complaint, (Civ. Proc. Code, § 431.30 [“Affirmative relief may
not be claimed in the answer”]) and cross-examination is confined
to the substantive areas raised during direct examination (Evid.
Code, § 773, subd. (a) [“A witness examined by one party may be
cross-examined upon any matter within the scope of the direct
examination . . .”]). By requiring a responding party seeking to
expand the substantive scope of issues placed before the court by
the moving party to file a separate motion to modify, section
213—as our Legislature noted when enacting its predecessor
statute—“consolidate[s] all motions on the same issues into one
court hearing, thereby saving time and expense.” (Sen. Rules
Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill
No. 2518 (1987-1988 Reg. Sess.) April 28, 1988, p. 1.) We must
construe the term “affirmative relief” in section 213 with this
purpose in mind. (Day v. City of Fontana (2001) 25 Cal.4th 268,
272 [“Our fundamental task in construing a statute is . . . to
effectuate [its] purpose.”].)
Where, as here, the bar to seeking affirmative relief in
responsive pleadings is intended to keep the modification
proceeding focused on the “message” set forth in the moving
papers, a responding party seeks affirmative relief only if she
seeks to change or expand that message. A party does not change
or expand the message—and hence does not seek affirmative
relief—if she does no more than defend against the substantive
claims made by the moving party. (See City of Stockton v.
Superior Court (2007) 42 Cal.4th 730, 745-746, fn. 12
8
[“‘Affirmative relief’ is an award . . . that goes beyond merely
defeating the [movant’s] recovery.”]; Coleman v. Gulf Ins. Co.
(1986) 41 Cal.3d 782, 793-794 [“‘affirmative relief’” is more than
an “‘attempt to repel [the movant’s] attack’”]; cf. Simpson v.
Superior Court (1945) 68 Cal.App.2d 821, 825 [“affirmative relief”
is relief that “operates not as a defense but” instead as a
“counterattack” that seeks to “affirmatively and positively . . .
defeat [the movant’s] cause of action”]; see generally Aetna
Casualty & Surety Co. v. Humboldt Loaders, Inc. (1988) 202
Cal.App.3d 921, 928 [affirmative relief does not include
declaratory relief that mirrors a plaintiff’s prayer for the same].)
A party also does not change or expand the message—and hence
does not seek “affirmative relief”—if she seeks redress for the
manner in which the moving party delivered the message. Such
redress attacks the messenger, not the message. That is why a
party seeking costs is not seeking affirmative relief. (Silverton v.
Free (1953) 120 Cal.App.2d 389, 389-390; Berard Construction
Co. v. Municipal Court (1975) 49 Cal.App.3d 710, 716, fn. 5,
superseded on other grounds by Civ. Code, § 1717.)
A party seeking attorney fees under section 271 is not
seeking affirmative relief within the meaning of section 213
because the request for such fees is an attack on the messenger,
not his message. That is because attorney fees under section 271,
unlike attorney fees in many other contexts, are wholly “a
sanction for conduct frustrating settlement or increasing the cost
of litigation.” (Sagonowsky v. Kekoa (2016) 6 Cal.App.5th 1142,
1153; § 271, subd. (a) [“An award of attorney’s fees and costs
pursuant to this section is in the nature of a sanction.”]; cf. § 2030
[family court may award attorney fees to “ensure that each party
has access to legal representation”]; Cal. Rule of Court, rule 5.427
9
[delineating procedures for seeking fees under section 2030]; see
also cf. Rader v. Thrasher (1972) 22 Cal.App.3d 883, 888 & fn. 5
[attorney fees may constitute “affirmative relief” when assessing
whether the litigation privilege applies]; Barak v. The
Quisenberry Law Firm (2006) 135 Cal.App.4th 654, 661-662
[same, when assessing whether one party has joined another’s
anti-SLAPP motion].) What is more, because this sanction is
necessarily responsive to the moving party’s conduct in litigating
his motion, allowing a court to consider the moving party’s
conduct at the same time as his motion without the need for a
separately filed motion for fees also “avoid[s] possible duplicative,
repetitious pleadings” (Parsons v. Umansky (1994) 28
Cal.App.4th 867, 872), thereby further serving section 213’s goal
of “saving time and expense.”
Because wife’s request for attorney fees under section 271
was not a request for “affirmative relief,” she did not run afoul of
section 213 by requesting those fees in her responsive pleadings.5
And because this issue is one of first impression based on
husband’s colorable interpretation of the law, we deny wife’s
request that we order husband to pay her attorney fees on appeal
as a sanction for filing an appeal that is “totally and completely
without merit.” (Singh v. Lipworth (2014) 227 Cal.App.4th 813,
826.)

5 Wife’s requests for fees also satisfied the notice
requirements for a fee award under section 271—namely, notice
to husband of the code section and the “specific grounds and
conduct for which the fees or sanctions are sought.” (In re
Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1529.)
Husband does not contend otherwise.
10
II. Timeliness of Wife’s Motion
A motion for statutory attorney fees related to a judgment
in a dissolution case is timely only if filed “within the time for
filing a notice of appeal”—that is, within 180 days of the entry of
judgment or within 60 days of the requester’s receipt of notice of
entry of judgment, whichever happens first. (Cal. Rules of Court,
rules 3.10, 3.1702(b)(1), 8.104(a)(1).) Husband argues that wife’s
February 2016 filing seeking attorney fees was untimely because
it was filed more than 60 (or, for that matter, more than 180)
days after the trial court entered its July 2015 order denying his
motion to modify the child custody arrangement. We reject this
argument because it ignores that (1) wife requested attorney fees
under section 271 three times before the trial court ruled on the
modification motion, and (2) the court, when making its oral
ruling on the modification, reserved jurisdiction over all related
issues—including, as wife’s attorney noted, attorney fees—for the
family court “downtown” to resolve. Although, as husband points
out, the court’s written order did not also reserve jurisdiction
regarding attorney fees, the court’s failure to repeat its oral
reservation in writing does not somehow negate its oral ruling.
(See People v. Smith (1983) 33 Cal.3d 596, 599 [a trial court’s oral
and written rulings must be “harmonized,” if possible].) All that
wife’s February 2016 motion did was renew her earlier and still
pending requests for fees. On these facts, the court’s implicit
finding that wife’s fee request was timely in no way offends Rule
3.1702’s goal of “provid[ing] time limits” for attorney fees
motions. (Sanabria v. Embrey (2001) 92 Cal.App.4th 422, 428.)
The pendency (and hence non-finality) of wife’s earlier attorney
fees requests also forecloses husband’s argument that her
February 2016 request was barred by the doctrines of collateral
estoppel and res judicata.

Outcome: The order is affirmed. Wife is entitled to her costs on appeal.

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