Home Contents Accounting Age Preference Alimony Loading Books and Law Buzzwords Choices Deadbeats Discipline for Lawyers and Judges Dissomaster Disso Check Disso-Opoly Domestic Tax Law Domestic Violence Facts & Opinions Food Reviews Grandparents Hardships Hearings I.R.S. Form W-5 Military I Military II Military III Military Pay III 1/2 Moveaways Notice Summary Noticed Motion No Service Premarital Contract QDRO's Relief Motion Restraining Order Motions Stock Options Statements of Decision SOD Checklist Social Security Tax Forms of Value Tax Tips 2007 Tax Page Transmutation
The Professor Nedley Series
Professor Nedley’s Guidebook
To Statements of Decision
December 1, 2006
CCP § 632 states that upon a
trial of a question of fact by the court, the court shall, upon the
request of either party, issue a Statement of Decision explaining the factual
and legal basis for its decision as to each of the controverted issues upon the
request of either party.
First Exception to the Basic SOD Rules
§3022.3 right off the bat is an
exception to the rule that you aren't entitled to a SOD on a motion. It
states;
Upon the trial
of a question of fact in a proceeding to determine the custody of a minor
child, the court shall, upon the request of either party, issue a statement of
the decision explaining the factual and legal basis for its decision pursuant to
Section 632 of the Code of Civil Procedure.
Clearly the intent is to have a specific Statement of
Decision when an issue of custody is being determined whether it be by motion or
by trial. It actually smacks of substance over form.
Length of Trial Rules
If the case is a short trial concluded in less than one day or eight hours, or if it is eight hours spread over more than one day, then the request must be made prior to the matter being submitted for decision. (That’s when the lawyers have finally stopped wrangling with each other and sat down).
If the case is a longer trial, then the request must be made within ten days after the court announces its Tentative Decision.
The 10 days commences to run from the Tentative Decision. The Tentative Decision may be announced from the bench, so start counting from that day, or if it’s mailed, start counting from the date of mailing. Don’t forget the impact of CCP§ 1013. Under case law (Staten (1997) 57 CA 4th 1084), when the court mails its Tentative Decision, you add five days to the time limits for responding; however, you do NOT add five days to the Request for the Statement of Decision if it’s mailed, the request must reach the clerk within ten days of the Tentative Decision’s receipt by counsel. In other words, the mailer does not get the extra time, only the mailee.
Issues
The request must specify the controverted issues upon which they are seeking a Statement of Decision.
Thereafter, either party may make proposals as to the content.
Ultimately the Statement of Decision must be in writing unless the trial is a “short” trial, in which case it may be made orally from the bench, on the record and in the presence of the parties.
The procedure for a Statement of Decision is set out in CRC § 232. The CRC Rules only apply if the trial is a “long” trial.
The court makes a decision following a trial on factual issues. The court either announces that decision from the bench or takes it under submission and issues a written statement, judgment or order which is filed with the clerk.
This is, in fact, a Tentative Decision, it is not yet a judgment, and is not yet binding on the court.
If a Statement of Decision has been properly requested, the court may state in its Tentative Decision who will prepare it (the court or designated counsel) and may order that the Tentative Decision shall be the Statement of Decision unless within ten days either party specifies controverted issues not covered in the tentative.
Any proposals as to the content or for changes to the Tentative Decision shall be made within ten days of the request for a Statement of Decision if that request is made at or after the trial.
Within 15 days after the time for submitting content or suggestions for the Statement of Decision the court shall prepare and mail a proposed Statement of Decision and proposed judgment to the parties.
If a party has been designated to prepare the Statement of Decision, then that party within 15 days after the time for submitting content or suggestions for the Statement of Decision shall submit to the court its proposed Statement of Decision. If they miss the deadline, the other party may assume the responsibility or bring a motion that the Statement of Decision is waived. If nobody does nothin’, the Statement of Decision is waived.
CRC § 233 states that Family Law is governed by CRC § 5.10 et. seq., however there are no separate rules for Judgments in Family Court.
Make sure that you understand that a failure to prepare a statement when properly requested is an automatic remand unless it is waived.
The Statement of Decision has a function in addition to annoying the trial judge:
· Helps focus on the issues to be determined and where there is a two-step process – Tentative Decision – Request for Statement of Decision- it assists the judge in reviewing and preparing the Tentative.
· It explains to the litigants and to the Appellate court what the judge is doing and why. It explains a neutral person’s concept of fairness.
· Assists the Appellate Court in setting forth the grounds upon which the Judgment rests.
· A well-done Statement of Decision may deter an appeal.
Understand that a Statement of Decision does not require a request. It may be done simply as a good judicial practice. In Family Law it is always good policy if there are complicated or significant issues being decided.
In the absence of a Statement of Decision, the judgment simply rests on the findings that are implicit in the judgment. The Appellate court will presume that you made the findings that you say you did or that were necessary to make the decision that you made.
The Judge may permit an untimely request at the Judge’s discretion if there is an important issue that has been overlooked or needs to be reviewed.
If there’s a “long” trial, the issuance of a written Statement of Decision is mandatory when properly requested. If it’s a “short” trial, then the court may do the Statement of Decision in writing or orally on the record. The Judge cannot simply sign a transcript of the hearing “on the record” and call it a Statement of Decision.
Under CRC § 232 (c) you cannot, as a judge, say “What I am now going to say on the record shall constitute the Statement of Decision” if the trial was a “long” trial. That is permissible only in a “short” trial.
The judge has the ultimate responsibility for the preparation of the Statement of Decision even if the judge delegates it to a designated party under CRC § 232 (c). This, of course, starts you down a path of objections, editing, reviewing and conflict resolution. You might be better off time-wise to do it yourself while it’s fresh.
Although the vast majority of Family Law trials fall into the “short” category and you’ll know before making your decision whether or not a Statement of Decision has been requested, you could feasibly get sandbagged in the longer trial by a request that is not made until ten days (plus 5 CCP§1013 days) after the fact and nine days after you’ve forgotten the case.
The request must specify the issues that are controverted, so the standard “Petitioner requests a Statement of Decision” does not require the Judge to prepare a statement as to any specific issues, although there might be a presumption that you have to do a simple one issue Statement of Decision if there’s only one issue being tried.
A request for findings as to evidentiary facts or specific items of evidence is not a specification of controverted issues. But don’t forget that within ten days of a “general” request for a Statement of Decision, the other party can make proposals as to the content of the Statement of Decision.
Under CCP § 632 the STATEMENT OF DECISION whether done by designated counsel or by the Judge either from the bench or later in writing, must spell out the controverted issue and the factual and legal basis for its decision, i.e. “The issue is the primary parenting of the minor child. The law requires that I place the minor child with the parent who is most likely to facilitate sharing. In this case it is clear that father has shown a greater propensity to share the minor child and the mother, from the facts, has leaned toward alienating the child from his father. Therefore, in this case, based upon the testimony and the experts reports find that it is more likely that the father is more likely than the mother to encourage joint parenting, I must place the primary custody of Buster with his father.”
· It stated the controverted issue.
· It set forth the specific law applicable.
· It set out the court’s findings as to the facts.
· It applied that law to those facts.
· It set out a specific clear decision.
· Notice it did not go into the actual evidentiary facts. It stated the ultimate facts. For an appellate family law case showing a good example of content see Marriage of Garrity and Bishton (1986) 181 CA 3rd 675.
This is one of the biggest sources of confusion for Family Law lawyers and judges alike. Except for custody, section CCP § 632 does not require the judge to issue a Statement of Decision when ruling on a motion.
See In Re Marriage of Askmo (2000) 85 CA 4th 1032 at 1040 (interesting name on a case requesting alimony) where the court states that § 632 requires a Statement of Decision only on a “trial” followed by a “judgment,” not on a motion, even if there is an evidentiary hearing involved.
The court should, however, balance (1) the importance of the issues at stake and the magnitude of the decision on the rights of the parties (think Move-Aways) and (2) whether appellate review can be accomplished in the absence of specific findings. The burden falls upon the requesting party to show that the ruling on their OSC or Noticed Motion is an exception to the clear language of CCP § 632.
You may have noticed that in Family Law our attorneys have a tendency to request Statement of Decision’s at the end of ruling on a motion, especially when you’ve made an abominable decision.
This is wrong on two counts, (1) the request must be made prior to the matter being submitted for decision in a “short” trial and (2) there is no Statement of Decision on a ruling on a motion (unless it falls into the significant issue exception).
However, don’t confuse this with the opposite technique when the parties do an actual trial as if presenting a Motion, a perfectly acceptable, time-saving device that is nevertheless a true trial.
You know those annoying lists of questions that our local bar seems to have adopted as gospel for the methodology for the requesting of a Statement of Decision. You may use those questions as a review or checklist of the controverted issues, however you need not, under §632 respond to each and every question. They fall into the category of “suggesting content”.
The trial court is required only to state ultimate rather than evidentiary facts and only when it fails to make findings on a material controverted issue would it be reversible error.
Questions are simply a method of suggesting material controverted issues, nothing more. If they ask how the court decided specific evidentiary facts, they do not need to be answered. However, you should use Q’s as a checklist to ensure that you’ve discussed each material issue that was controverted. Remember, there’s nothing in either CCP§ 632 or CRC § 232 about answering questions, only about suggesting content.
In Footnote 13 of Garrity & Bishton (1986) 181 CA 3rd 675 you will find a well worded Statement of Decision which listed all of the ultimate facts necessary to its decision to decide the issues placed in controversy. That’s all that’s needed.
Family Code § 3654: This code section specifically requires that an order that modifies, terminates or sets aside a support order must include a Statement of Decision, if requested. That pretty much covers 50% of our calendar. This does not include Pendente Lite support or fee orders.
Family Code § 2120: Upon timely request the court shall render a Statement of Decision in connection with a set-aside motion or a proceeding where the court’s ruling resolves controverted factual evidence. (See FC § 2127)
CCP § 638 (a): A referee or special master’s determination following a consensual reference must be done by Statement of Decision on the controverted issues.
Misc. Statutes: Outside of the scope of CCP § 632 thee are several statutes that mandate “findings” of some sort. Those include child support, spousal support, joint custody orders and others.
Sufficiently Important Issues: See infra. It’s a balancing test and the burden of showing the need falls on the requesting party.
Child Support Guidelines: Under FC § 4050 the court must state in writing or on the record:
· Each parent’s net monthly disposable income.
· Each parent’s federal tax status.
· Deductions from gross income for each parent.
· The time-share percentages.
· A § 3750 Statement if neither parent has health insurance.
For further Family Law material, see Rutter §15.90 or the California Judges Bench Book/Civil Proceedings/Trial, 2:17 et seq., See also 16:22 on the Judgment process (Those are the green books that are automatically sent to judges each year from CJER). As an addendum to Professor Nedley’s Guide, you will find a Basic Checklist for the process of doing (or not doing) a Statement of Decision.
3/25/2007