Filed 1/31/19

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

In re the Marriage of 

CATHERINE PEROW and 

RICHARD UZELAC.

 B283457

 (Los Angeles County

CATHERINE PEROW, Super. Ct. No. BD509605)

Respondent,

v.

RICHARD UZELAC,

Appellant.

APPEAL from an order of the Superior Court of Los 

Angeles County. Colin P. Leis, Judge. Affirmed.

Wendy Rossi, Los Angeles, for Petitioner and Respondent.

Jeffrey L. Hoffer, Agoura Hills, for Respondent and 

Appellant.

* * * * * * 
2

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 
11

February 2016 request was barred by the doctrines of collateral 

estoppel and res judicata.

DISPOSITION

The order is affirmed. Wife is entitled to her costs on 

appeal.

CERTIFIED FOR PUBLICATION.

______________________, J.

HOFFSTADT

We concur:

_________________________, P. J.

LUI

_________________________, J.

ASHMANN-GERST