Stanley Mosk Courthouse
Scott J. Nord
Judge, Los Angeles County Superior Court
Whittier College School of Law
It is often posited that family law is like the Wild West of litigation -- anything goes. The evidentiary rules preventing hearsay testimony went out the window a long time ago. Much of that reputation has to do with the family law declaration.
Let's start with this hypothetical: Parent A is sitting at home watching television during their noncustodial time and receives a call from local law enforcement that Parent B has just been arrested for DUI and the minor child was in the vehicle at the time. The child is safe and sound, but can Parent A come to pick up the child from the local police station. Parent A retrieves the child from the police station a little scared but otherwise unharmed. Parent A promptly files an ex parte request for order to modify visitation seeking "no visitation for Parent B" based on Parent B being arrested for DUI with the minor in the vehicle. The ex parte filing is based on the statements of the police officers and minor child to Parent A. Parent A, in her declaration, admits to having no direct knowledge of what occurred except picking up the child at the police station. Parent B, no longer in police custody, appears with their attorney and objects because all the statements are hearsay and, therefore, inadmissible. Parent B denies the allegations of DUI.
What should the court do? The statements of the minor child and police officer are hearsay, but they are presented in a declaration signed under penalty of penalty.
Hearsay Refresher Course
For those whose law school days are farther in the rearview mirror than we would like to admit, here is a bit of a refresher on hearsay. Evidence Code Section 1200(a) states that "'hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered for the truth of the matter stated." Section 1200(b) states that "except as provided by law, hearsay evidence is inadmissible." Just in case you are unsure what to call this rule, Section 1200(c) states, "this section shall be known and cited as the hearsay rule." Hearsay has been deemed inadmissible in California courts as far back as 1852. Kilburn v. Ritchie, 2 Cal. 145 (1852).
There are more than 20 exceptions to the hearsay rule. Some are specific to certain proceedings (i.e., criminal proceedings like Section 1223, which deals with co-conspirators' statements), for business and governmental records (Section 1270 et seq., and Section 1280 et seq., respectively). Others deal with land boundaries (Section 1323), recitals in ancient writings (Section 1331), and facts of general notoriety and interests (Section 1341). However, none of the exceptions is specifically labeled "exception to hearsay if contained in a family law declaration."
Where Did This All Begin?
California courts have prevented the introduction of hearsay for at least 170 years. First enacted in 1872, California Code of Civil Procedure Section 2009, states "[a]n affidavit may be used to verify a pleading or a paper in a special proceeding, to prove the service of a summons, notice, or other paper in an action or special proceeding, to obtain a provisional remedy, the examination of a witness, or a stay of proceedings, and in uncontested proceedings to establish a record of birth, or upon a motion, and in any other case expressly permitted by statute."
California Rule of Court 5.111, provides that "[a]long with a Request for Order (form FL-300) or a Responsive Declaration (form FL-320), a party must file a supporting declaration with the court clerk and serve it on the other party." Rule 5.111(b)(2) provides that "[a] declaration must be based on personal knowledge and explain how the person has acquired that knowledge. The statements in the declaration must be admissible in evidence." (Emphasis added.) Rule 5.111(c)(1) provides "If a party thinks that a declaration does not meet the requirements of (b)(2) the party must file their objections in writing at least 2 court days before the time of the hearing, or any objection will be considered waived, and the declaration may be considered as evidence. Upon a finding of good cause, objections may be made in writing or orally at the time of the hearing." Rule 5.111(c)(2) states, "If the court does not specifically rule on the objection raised by a party, the objection is presumed overruled."
In Lacrabere v. Wise, 141 Cal. 554, 556-57 (1904), the court, in discussing Section 2009, held "this section has no application to the proof of facts which are directly in controversy in an action. It was not intended to have the effect of changing the general rules of evidence by substituting voluntary ex parte affidavits for the testimony of witnesses. The section only applies to matters of procedure; matters collateral, ancillary, or incidental to an action or proceeding; and has no relation to proof of facts the existence of which are made issues in the case, and which it is necessary to establish to sustain a cause of action."
Things changed 70 years after Lacrabere when the court rendered its decision in Reifler v. Superior Court, 39 Cal. App. 3d 479 (1974). The trial court in Reifler prevented the wife from offering oral testimony in a "group of motions and orders to show cause" Id. at 482. The trial court denied her request for oral testimony and proceeded solely on the declarations. In upholding the trial court's decision to proceed on most matters without oral testimony, relying on Section 2009, the Reifler court stated, "the trial court was empowered to hear the matters before it upon declarations and to exclude oral testimony." Id. at 484. Rejecting wife's contention that modifications to support orders were not procedural and, therefore, she could present oral testimony under Lacabere, the Reifler court limited and/or clarified the Lacrabere holding by stating an "affidavit is not admissible to prove a fact necessary to a judgment. They do not concern controversies involved in securing an order as defined in Code of Civil Procedure section 1003." Id. at 484. Section 1003 states that "Every direction of a court or judge, made or entered in writing, and not included in a judgment, is denominated an order." In other words, "orders" are allowed to be supported by affidavits without oral argument, but affidavits are not allowed to support facts necessary for a judgment.
Ultimately, except on a contempt matter, the Reifler court upheld the practice of deciding most issues on the declarations alone, birthing the "Reifler Declaration." Many refer to declarations as "Reiflerized," meaning they are signed under penalty of perjury and address the facts related to the request for order and relief requested. However, the only fallacy in this "order versus judgment" approach is that many orders result in or are parts of judgments.
Going Beyond Reifler
Brief recap: Reifler states that the court can decide any matter without oral argument, based solely on the declarations, so long as the resulting ruling is deemed an "order" and is not a judgment. Rule 5.111 states that all declarations must be based on admissible evidence. But if the declaration is not, and the other party either does not object within two days of the hearing, or the court does not rule on the objection, it is deemed overruled, and the evidence is admissible. So, in essence, the court can consider any declaration, even if laden with layers upon layers of hearsay, in rendering an order if the other party does not object and without oral testimony.
In re Marriage of Stevenot, 154 Cal. App. 3d 1051 (1984), a dispute arose regarding the validity of a marital settlement agreement and judgment. Wife contended that, by extrinsic fraud, she was prevented from participating in the family proceedings and sought to set aside both. At the hearing, the parties were sworn and stated that their declarations filed with the court were true and correct. In a footnote, the Stevenot court, citing the Reifler practice of ruling on matters based on the declarations alone and refusing oral testimony, took a left turn by approving and, more importantly, encouraging a different approach to decision making.
Specifically, the Stevenot court, in footnote 3, endorsed the trial court's decision in allowing the "the remainder of the hearing consist[ing] of offers of proof by counsel of matters not in the declarations, and of argument." Id. at 1059. The court stated, "we believe a preferable procedure is that which the trial judge utilized here. Having fully reviewed the moving and responding papers prior to the hearing, Judge Edwards allowed counsel to make offers of proof of matters not in the declarations, made inquiries of the parties and counsel as necessary to gain information he needed to make his decision, and permitted counsel to argue their positions. We fully approve this procedure because it expedites the hearing of a heavy domestic relations calendar, provides for a more pleasant, less formal, nonadversary atmosphere, and sets a tone much more likely to enable future settlement of litigation. Additionally, without expending the precious time which would be consumed by a more traditional question and answer type of heated adversary hearing, it permits the trial judge, the only one of the courtroom who knows what information in addition to the declarations, is required to reach a decision, to quickly obtain information by inquiries to the parties and their counsel." Id. n.3.
In other words, admissible or inadmissible; hearsay or not; in a declaration or not; a trial judge should hear all the information necessary to make a decision. Only the trial judge knows that information is required to make that decision. But keep in mind that the Stevenot case and decision (and its subsequent reference in every single-family law declaration) had nothing really to do with family law declarations.
Stevenot Opened the Door. Elkins Kicks It Off the Hinges
To many involved in family law, the name "Elkins" is either the bane of their existence or one of the greatest revolutions in access and fairness to justice in the last 50 years. When many speak favorably or negatively of "Elkins," they speak of the Elkins Family Law Task Force, not the case of Elkins v. Superior Court, 41 Cal. 4th 1337 (2007). However, the task force was born from the California Supreme Court ruling, which suggested its formation. The Elkins case was really about the demanding requirements of local court rules in family law proceedings.
In Elkins, Contra Costa County had local rules designed to streamline only family law cases but no other civil matters. Id. at 1368. However, the local rules were so burdensome that, by way of example: "it ordered that all direct testimony at trial be presented prior to trial in the form of declarations filed in lieu of oral direct testimony, subject to cross-examination.' Indeed, even if a party's witness refused to sign a declaration, the party was required to file an unsigned declaration." Id. at 1347. Further, "the order provided that the declarations were to 'explain' the appended complete set of trial exhibits, and that '[a]ny required evidentiary foundation for admission of the proposed exhibits shall be completely set forth in the declaration(s).'" Id. In addition, "sanctions for failure to comply with the TSO were severe. 'Failure to provide initial declarations may result in there being no direct testimony on that issue and issue sanctions may result.'" Id.
Applying those local rules, the Elkins trial court found that a self-represented litigant's pretrial declaration failed to establish the evidentiary foundation for all but two of his exhibits and, therefore, excluded 34 of the remaining exhibits. The trial court adjudicated the parties' claims substantially in the manner requested by the wife. Id. at 1345.
The Supreme Court reversed. Finding that Contra Costa County's local rules were "inconsistent with the traditional concept of a trial as reflected in provisions of the Evidence Code and the Code of Civil Procedure" and that the local "rule and order calling for the admission and use of declarations at trial conflict with the hearsay rule." Id. at 1360. In other words, a trial (or a decision ending in a judgment (see Reifler above)) may not prohibit oral testimony or require the parties to present their case at trial by written declarations. Id. at 1357. In the dicta portion of the opinion of Elkins, the court went on to criticize the burdensome and exacting local rules and their impact on parties, especially unrepresented parties. It was this portion of the decision which would be the basis for the Elkins Family Law Task Force.
Section 217, Shimkus and Swain
In response to Elkins, the California Legislature enacted Family Code Section 217 to alleviate the harsh effects stemming from the common practice of family law courts seeking to expedite family law proceedings by requiring litigants to rely primarily on written declarations in lieu of introducing live testimony. In re Marriage of Binette, 24 Cal. App. 5th 1119, 1126 (2018).
Family Code Section 217, in relevant part, provides: "(a) At a hearing on any order to show cause or notice of motion brought pursuant to this code, absent a stipulation of the parties or a finding of good cause pursuant to subdivision (b), the court shall receive any live, competent testimony that is relevant and within the scope of the hearing and the court may ask questions of the parties. (b) In appropriate cases, a court may make a finding of good cause to refuse to receive live testimony and shall state its reasons for the finding on the record or in writing."
In In re Marriage of Shimkus, 244 Cal. App. 4th 1262, 1266 (2016), husband moved for a post-judgment order terminating spousal support. Id. at 1266. Both parties submitted declarations, but following testimony, and during closing argument, the wife referenced her declaration as containing specific evidence; however, the court stated, "the evidence in the hearing was the testimony and documents admitted, and '[n]othing else.'" Id. at 1267. The court held that "the only evidence was that presented by oral testimony and exhibits introduced into evidence." Id. On appeal, wife challenged the trial court's failure to "automatically" admit the declarations. Id. at 1269-70. Rejecting her challenge, the court held that Section 217 requires live testimony, "except under limited circumstances, i.e., the parties' stipulation or good cause." Id. at 1270. Because neither circumstance occurred, the "declarations were not automatically in evidence nor did the [trial] court err in not admitting them under the circumstances of this case." Id. at 1271.
In In re Marriage of Swain, 21 Cal. App. 5th 830 (2018), husband appealed from a post-judgment order denying his motion to terminate spousal support. Wife never filed any opposition to the motion, nor did she appear at the hearing. Instead, she filed an income and expense declaration, but failed to serve it on the husband. Id. at 832-33. Upon inquiry, the trial court stated that the wife's declaration was filed, but that the court "'wasn't going to look at it.'" Id. at 834. Relying on the wife's declaration, the court denied the husband's motion. Id. at 834-36.
On appeal, the appellate court reversed, finding that the trial court erred in relying on the wife's declaration. The Swain court considered the legislative history of section 217 and the applicability of the Code of Civil Procedure Section 2009 in family law proceedings. Id.at 838-42. It found that "none of the published cases interpreting section 217 has squarely decided that Section 217 completely abrogated the hearsay exception in Code of Civil Procedure section 2009 for substantive family law motions." Id. at 841. Addressing the issue as a matter of first impression, the Swain court concluded that "the hearsay exception in Code of Civil Procedure section 2009 does not apply to a motion to modify a family law judgment where ... the opposing party seeks to exclude the declaration on the ground that he or she is unable to cross-examine the declarant. In that situation, the opposing party's objection not only seeks to exclude hearsay evidence, but also amounts to an assertion of the party's right under section 217 to 'live, competent testimony that is relevant and within the scope of the hearing.'" Id. at 841.
Returning to our hypothetical, should the court consider Parent A's declaration, even if it contains hearsay and the other party objects? Well, it depends...