Perow & Uzelac: Sanctions; Pleadings and Procedure

In re Marriage of Perow & Uzelac (Sanctions; Pleadings and Procedure)

California Court of Appeal, Second District

Published Opinion, (2019) 31 Cal.App.5th 984

File Date:
Filed 1/31/2019

The former husband made two requests to modify child custody and child support, to which the former wife opposed by filing responsive declarations. In her opposition, she also requested sanctions per Family Code section 271. The family court denied the former husband’s request to modify custody and support, and granted the orders the former wife wanted, including an award of sanctions. The former husband appealed, arguing that the sanctions request could not be made in the responsive declaration and had to be filed as a separate motion. When a party files a motion in a dissolution action, 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).) The appellate court held that the sanctions request was not covered by Family Code section 213 because it was not a request for “affirmative relief” (i.e., the sanctions issue was directly related to the former husband’s conduct in bringing his motion to modify custody and support, so the former wife was not interjecting a new issue into the proceeding by seeking sanctions for that conduct). Because the section 217 sanctions request was “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” [citation], thereby further serving section 213’s goal of “saving time and expense.”

Perow & Uzelac 1-31-19

The case listed here was not handled by Walzer Melcher unless the description states that Walzer Melcher appeared as counsel.