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Can a party seek affirmative relief from the issues raised in the Request for Orders in California Family Law cases?


It is standard practice that, at a Request for Orders hearing that only issues raised in the moving parties’ Request for Orders may be responded to in the response an that no separate issues may be raised. For example, if a Request for Orders is filed for Spousal Support, the Court will not address the issue of Child Support etc. The Court in IRMO Perow and Uzelac (1/31/19) found that this standard practice is not a bar to a request for sanction-based attorney fees under section 271 is not a request for “affirmative relief” so as to be properly raised in response to a Request for Order under Family Code §213(a). It said:

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.”

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