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Case of the Month Archive

August 2018

Live testimony not mandated if parties wish to rely solely on declarations . . .


In affirmance, Fourth District holds that trial court did not err by failing to receive live testimony and relying on parties’ declarations in deciding to grant wife’s motion to set aside disso judgment on the basis of mistake of fact; parties’ failure to comply with statutory requirements re PDDs and FDDs support ruling on that basis


In re Marriage of Binette

(June 29, 2018)

California Court of Appeal 4 Civil E068010 (Div 2) 24 Cal.App.5 th 1119, 235 Cal.Rptr.3d 354, 2018 FA 1846, per Ramirez, PJ (Miller and Fields, JJ, concurring). Riverside County: Warren, J, affirmed. For appellant: Andrew Westover, CFLS, and Morgan Cahill-Marsland, (951) 894-8440. For respondent: Julie Clark, (951) 658-0025. CFLP §P.69.7.


William and Diane Binette were married on Valentine’s Day in 2002; they separated on New Year’s Day 2015. On July 21, 2015, William filed a petition for a legal separation, along with a PDD re his separate property, the community property, and the quasi-community property, and his I&E declaration. Diane filed a notice and acknowledgement of receipt of William’s petition and PDD, but did not file a response. On August 24, the parties filed a stipulation and waiver of FDDs, stating that they had fully complied with Fam C §§2102 and 2104, had exchanged current I&E declarations, and had signed the stip knowingly and voluntarily. They also acknowledged that if they failed to comply with statutory disclosure obligations the trial court “‘will set aside the judgment.’” William’s counsel also filed a declaration that service of Diane’s PDD was being filed with the other documents.


On September 25, William filed a request to enter default, but failed to include a completed I&E declaration or financial statement. He claimed that there were no changes to the prior filings and all issues had been decided in an MSA. The trial court entered a judgment of legal separation, with property division as set forth in the attached MSA, on November 10.


On July 12, 2016, Diane filed a request to set aside the default judgment and MSA, and seeking to file a response and a disso request. In her supporting declaration, Diane claimed that she had signed all the related documents, including the MSA, after William drove her to a notary’s office on the same day that she received them and demanded that she do so “‘in his presence.’” Diane contended that William failed to support his property declaration or I&E with relevant documents, and that she had not been given the opportunity to consult with an attorney or an accountant before agreeing to the terms of the MSA, which contained provisions financially detrimental to her, such as a spousal support waiver and an equalizing payment made taxable to her. Diane also stated that she suffered from a cognitive impairment due to depression and included a declaration to that effect from her physician.


In February 2017, William filed an I&E declaration, a copy of his tax return for 2016, a memorandum of points and authorities, and a responsive declaration, opposing Diane’ request and denying her allegations re duress, cognitive impairment, and lack of time to obtain counsel. In opposition, Diane asked for a set-aside and to vacate judgment based on William’s failure to disclose relevant information, the parties’ mistake of fact, and her depression. She also attached William’s responses to discovery, which included objections and expressed his unwillingness to respond to certain questions.


At a hearing on February 16, the trial court swore in the parties, sought their time estimates, and asked whether they would present testimony. William’s attorney stated that testimony might be necessary, but his client’s position was that the judgment was “‘ironclad.’” Attempting to elicit a more definitive statement, the trial court said it knew what William’s position was, having read all of the paperwork, and proceeded to name each of the documents it had read and reviewed. Diane’s attorney observed that those appeared to be all of the documents filed, asserted that the matter was adequately pled, and indicated a willingness to rest on the pleadings. William’s attorney then contended that the documents showed Diane’s waivers of further information, challenged the admissibility of the doctor’s declaration, but failed to object to the trial court’s considering the filed documents. Neither party sought to present live testimony. After taking the matter under submission, the trial court granted Diane’s request and set aside the judgment on the grounds of mistake of fact.


William appealed, but the Fourth District affirmed.


Gotta ask for it . . .
William contended that the trial court violated Fam C §217 by failing to receive live testimony and allowing Diane to rest on the pleadings. The justices explained that the Legislature enacted Fam C §217 in order to “alleviate the harsh effects” of the common family law court practice of requiring litigants to rely on their declarations instead of presenting live testimony. Fam C §217(a) provides that the trial court shall receive any relevant, competent live testimony within the scope of the hearing, unless the parties otherwise stipulate or the trial court finds good cause to preclude live testimony and states its reasons in writing or on the record. However, the statute does not mandate live testimony if the parties “indicate their desire to rely solely on declarations.” Moreover, the panel stated, a party wishing to present live testimony must specifically request it.


More than one way to . . .
In this case, the justices found, William failed to specifically request to present live testimony, but made only a conditional response when asked; and Diane’s attorney had chosen to rest on the pleadings. The trial court, they added, had repeatedly asked the parties if they intended to present live testimony. William argued that given the lack of live testimony, the trial court had no evidence to support its ruling. “Not so,” the panel said. Fam C §217(a) does not prevent the parties from submitted evidence through declarations, pleadings, or other means. Besides, the justices noted, William hadn’t objected to the trial court’s considering the documents, nor had he made any evidentiary objections to any of the documents that the court said it had read and reviewed. The panel also found that the lower court’s recital of the documents read and reviewed showed that it had considered the pertinent factors, found that the material facts were not in controversy, and concluded that live testimony was unnecessary, all of which constituted good cause to preclude live testimony.


Just a mistake . . .
William also argued that the trial court had applied an incorrect legal standard in setting aside the judgment, by basing it on the parties’ failure to complete FDDs and PDDs. The panel noted that the mandatory requirements in the disclosure statutes cannot be waived, except for FDDs where both parties have completed and exchanged PDDs in accordance with Fam C §2104 and have executed a knowing and voluntary waiver of FDDs. Here, the justices pointed out, William had failed to fully comply with Fam C §2104(a) by failing to provide supporting documentation along with his FDD. Diane had failed to complete or exchange either a PDD or an FDD, although she stipulated to having done so. This lack of compliance by both parties, the panel concluded, showed that there had been a mistake of fact on their parts as to whether they had complied with the statutory requirements. Accordingly, the justices held, the lower court had not erred by setting aside the judgment on that basis.





There are a couple of important take-aways from this case. The most important is that live testimony is not automatically required by Fam C §217; the parties may waive the right to testimony by telling the trial court that they wish to present their cases on the declarations. Here, it looks like William’s attorney tried to hedge his bets by saying that live testimony might be required but wasn’t at this time, but the court doesn’t permit that and asks for a definite statement. After that, William’s attorney proceeded to discuss his client’s opposition to Diane’s claims and refer frequently to the documents submitted. The lesson for attorneys in all of that is that a request for live testimony must be clear and explicit, not hedged with contingencies.



It’s also noteworthy that the justices distinguish both In re Marriage of Shimkus (2016) 244 Cal.App.4 th 1262, and In re Marriage of Swain (2018) 21 Cal.App.5 th 830, on their facts. In Shimkus , the appellate court reasoned that Fam C §217 required live testimony, except under limited circumstances, such as the parties’ stipulation or good cause. The trial court had told the parties that it would only hear live testimony and did not automatically admit the parties’ declarations. The panel ruled that the parties had to either seek a stipulation to the entry of the declarations into evidence or move to have them admitted. The lower court, they said, had not erred by failing to admit the declarations in the absence of such requests. The justices here distinguish Shimkus on its facts, because the trial court never told the parties that it would accept only live testimony and William’s attorney raised no evidentiary objections, but rather relied on some of them in his oral argument. As for Swain , the justices in that case reversed a trial court that told a husband that it would not rely on the wife’s I&E declaration (the only pleading she filed), but then relied on it in denying the husband’s postjudgment motion for spousal support termination. The panel found that the husband’s objection on the grounds that the wife was not there to be cross-examined should have meant that the declaration was inadmissible hearsay and should have been excluded. In contrast, here, William’s attorney argued his case with reference to the documents and made no evidentiary objection. Moreover, William “led the trial court to believe that it could, and should, consider the documents before it without the need for live testimony.” He could not now, the panel concluded, complain that the trial court failed to require live testimony.



The justices’ determination that the parties’ failures in completing their PDDs and FDDs, constituted mistake of fact, seems to us to be a very generous analysis of the situation and smacks a little of “have result, need reasoning.” However, it is what it is, an affirmance.



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