Moving parties in family law matters can be hit with fee sanctions

In a matter of first impression, in In re Marriage of Perow & Uzelac, 31 Cal. App. 5th 984 (2019), the moving party suffered an expensive defeat when he lost his underlying motions and the 2nd District Court of Appeal affirmed the trial court's award of sanctions pursuant to Family Code Section 271. The court approved of the sanctions of nearly $150,000, finding they were an efficient and expeditious response to the moving party's conduct that frustrated settlement and increased the cost of litigation.

Section 271(a) provides in relevant part that "the 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 and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. An award of attorney fees and costs pursuant to this section is in the nature of a sanction."

Father and his former wife Mother stipulated in August 2010 they would share joint legal custody and Mother would have primary physical custody of their daughter. This stipulation was incorporated into a further judgment in October 2013 while Father was trying to modify the parties' stipulated agreement. Father filed three requests to modify child custody and child support subsequent to the August 2010 stipulation, including seeking an equal division of custodial time in April 2012 and a modification of support in February 2014 based on his proposed custody. Mother filed three responsive declarations to Father's requests -- each time requesting that Father pay all of Mother's costs and fees associated with Father's April 2012 request for modification of custody to provide for an equal time share.

The hearings on Father's three requests were heard over eight days in 2014 and early 2015, with the final orders entered in September 2015. The trial court denied Father's requests, while granting Mother's request that Father's visitation be monitored. The trial court noted in its decision that Father had not been "honest with the Court" by withholding that Father was a convicted sex offender who had molested his prior stepdaughter from ages 8 to 12 years old. The parties' daughter at the time of hearing on Father's requests was approaching age 8.

At a further hearing, the trial court granted Mother's request for attorney fees and costs, concluding that "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." Id. at 878.

Father appealed the sanctions, contending that Mother's requests for same was prohibited pursuant to Family Code Section 213, which bars relief that is not "affirmative relief" to that requested by the moving party. In denying Father's claim, the court held that 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."' The Court further noted that "because this sanction is necessarily responsive to the moving party's conduct in litigating his motion, [considering] 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."

Father's contention concerning the timeliness of Mother's requested sanctions was disposed of by the court, which specifically noted Mother requested attorney fees under Section 271 three times before the trial court ruled on Father's request for modification -- Father had more than adequate notice of Mother's request for sanctions.

Perow & Uzelac is not an outlier, but it does reflect a more expedient path resulting in Section 271 sanctions than prior cases. Parker v. Harbert, 212 Cal. App. 4th 1172 (2012), upheld an order for sanctions against Harbert who brought an unsuccessful order to show cause for contempt that include allegations his former wife had not brought their son to visit him in prison. The trial court denied Harbert's requests and ordered Section 271 sanctions requested by Parker because of Harbert's ill-advised contempt prosecution. The Court of Appeal upheld the sanctions, finding Harbert was on notice of the trial court's intent via is tentative statement of decision which offered Harbert an evidentiary hearing on the issue proposed sanctions.

Father might obtained a different result if he had sought a change in his visitation as opposed to modification of custody, as the registered sex-offender father did in In re Marriage of Lucio, 161 Cal. App. 4th 1068 (2008), in which case the Court of Appeal reversed Section 271 sanctions against Lucio. The Lucio court found that Lucio should not have been sanctioned for trying to obtain unmonitored visits considering Lucio sought unmonitored visits after having completed probation and therapy and at a prior mediation the parties had set a goal of unmonitored visits.

Perow & Uzelac sends a clear message that after a party has been denied substantive relief they are exposed -- the opposing party can include a request for monetary sanctions pursuant to Section 271 in their responsive declaration and prevail against the losing party without the need for further hearing. When an attorney represents the moving party, it is incumbent upon the attorney to carefully consider and position a client's requested relief to prevent a mere denial from becoming an even greater disaster with the client having to pay the opposing party for bringing the request. When represent the opposing party the attorney should include, wherever appropriate, a request for sanctions early and often based on the position that the moving party should never have sought the requested relief. 