The Art of Family Law and Divorce Objections: Evidence and Procedure in California Family Law Proceedings and RFO Requests
By: Michael C. Peterson, CFLS
Whether you are an attorney, or "in pro per", the rules of evidence
and the California Rules of Court apply to you. You need to know something
about them, and in fact your level of comfort with them will either impress
your Judge, or discredit you. Here are some thoughts about being the best
you can be, "in midst of the litigation fray"!
In early 2013, revised California Rule of Court (“CRC”),
Rule 5.111, went into effect. It replaced former
CRC 5.111 applies to the admissibility of evidence in hearings in Family Law proceedings,
and specifically to declarations filed in support of or in opposition to
Request for Orders (herein “RFO's”). These are, in essence, motions in Family
Law cases that seek some kind of affirmative relief from the court directing
that the opposing party do or not do something. They regularly deal with
spousal or child support, restraining orders involving property, attorney
fee applications, or custody order issues. These motions need to be supported
by declarations under penalty of perjury from the requesting party that
tell the Court the movant's side of what is happening in the lives
of the affected family members, if they are to be successful and meet
the movant's burden of proof. Likewise, in opposing an application
from the other party, the story needs to be told in a manner that includes
procedurally admissible counter-arguments. If you are opposing an RFO,
your mission is to strike as much of the content of the offending declaration
as you can!
CRC 5.111(c) provides the procedure by which objections to the contents
of such declarations are to be raised in the course of the court’s
determination of the motion. As such, this may serve you as a sword or
a shield depending upon whether you are the party requesting orders or
the one opposing them.
Black’s Law Dictionary defines an “objection” as follows:
“The act of a party who objects to some matter or proceeding in
the course of a trial, or an argument or reason urged by him in support
of his contention that the matter or proceeding objected to is improper
or illegal. Used to call the court’s attention to improper evidence
or procedure. Such objections in open court are important so that such
will appear on the record for purposes of appeal.”
As indicated in Black’s and CRC 5.111, an objection is an important
tool for attorneys or self-represented parties to prevent or limit the
introduction, and hence consideration by the finder of fact or applier
of law, of evidence, and/or to prevent the application of incorrect legal
procedures or evidentiary rules. The goal of raising an objection is to
have it be sustained by the judge, and thereby to impact the outcome of
the proceeding in favor of the objector by the exclusion of, or the striking
of, unfavorable evidence or speculation. As is discussed below, achieving
this goal may be trickier than simply winning the objection: Knowing what
to object to, and when to shut up, is an art form of itself.
- CRC 5.111:
The rule is entitled “Rule 5.111. Declarations supporting and responding
to a request for court order, ” and in pertinent part it provides:
“Along 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. The declarations must comply with
the following requirements:
(a) Length of declarations ….
(b) Form, format, and content of declarations
(1) The form and format of each declaration submitted in a case filed under
the Family Code must comply with the requirements set out in California
Rules of Court, rule 2.100 et seq.
(2) A declaration must be based on personal knowledge and explain how the
person acquired that knowledge. The statements in the declaration must
be admissible in evidence.
(c) Objections to declarations
(1) 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.
(2) If the court does not specifically rule on the objection raised by
a party, the objection is presumed overruled. If an appeal is filed, any
presumed overrulings can be challenged.”
The most critical substantive portion of CRC 5.111 lies in subsection (b),
specifically that “the statements in the declaration must be admissible in evidence.” This extremely broad language necessarily means that all evidence
not generally admissible into civil law proceedings (see CRC 5.2) are
not admissible into Family Law RFO hearings.
Subsection (c) of 5.111 provides the critical means of properly raising
an objection to the admissibility of improper evidence into evidence at
the RFO hearing. It ties in subsection (b) by requiring that an objection
be properly raised to all evidence presented to which an objection could
or should be sustained. The consequence of not following the procedure
are manifest, sundry, and may be potentially lethal to your argument:
(1) the judge will consider the evidence (to which s/he may or may not
allocate much weight in her/his mind) and (2) a more difficult (hence
expensive) record to appeal is created. Before discussing the procedure,
however, allow me give you an overview of improper substantive evidence
and improper procedure.
- Improper Substantive Evidence:
Common types of improper, inadmissible
substantive evidence are described in detail further, below. A quick, non-exclusive
list of common examples we frequently encounter are:
- Facts alleged by the declarant without foundation, i.e. without personal
and direct sensory observation of the matter asserted (e.g. my husband
smacked the child because I saw the child had a bruise when I picked her
up from his house);
- Conclusory statements subject to less abstract, more specific ways of conveying
the information (e.g. he is an abuser, or she is a liar);
- Legal conclusions that invade the province of the judge/jury (e.g. it is
in the best interests of our child that I have sole legal custody);
- Expert opinion statement by a layperson (e.g. my child will suffer from
separation anxiety if she is away from me for more than one day);
- Hearsay statements, usually about what some third party reported who themselves
who not the declarant - and so they are unavailable to be directly cross-examined
- not within an exception to the general exclusionary rule (e.g. my wife’s
employee told me that my wife usually took the cash and didn’t deposit
it into her business account);
Argument [e.g. the court should _____ (anything you like or don't like, just fill in the blank)]. The proper place for argument of the meaning of admissible facts is
on an accompanying Memorandum of Points and Authorities, and in open court
when a proponent is not testifying;
- New matter not raised in the pleadings (e.g. while nothing in said about
the subject in a set of moving, responsive, and reply declarations, you
want to insert a wholly new subject);
- Character evidence not within an exception to the general exclusionary
rule (e.g. because he usually drinks beer after work, he must have been
drunk at the evening school music recital); and
Assertions subject to a legal privilege (e.g. during our mediation, she
said she did not need any spousal support because she makes $5,000 per month).
- Improper Evidentiary Objection Procedures:
Further and separate from substantive evidentiary objections, arguably
under CRC 5.111 procedural objections need to be raised or else they would
be deemed waived. The most common procedural errors we encounter involve
the timeliness of service of pleadings:
Untimely filing or service. In a nutshell under California Code of Civil
Procedure (herein “CCP”)
A proper noticed motion (as opposed to an ex parte motion) and all its
accompanying papers need to be filed at least 16 court days before the
hearing date, and it needs to be served as follows:
- If by personal service, 16 court days plus zero calendar days before the
- If by fax (which requires a written agreement) or by express/overnight
mail, 16 court days plus 2 calendar days before the hearing date;
- If by mail within California, 16 court days plus five calendar days before
the hearing date;
- If by mail outside California but within the U.S., 16 court days plus ten
calendar days before the hearing date; and
- If by mail outside the U.S., 16 court days plus 20 calendar days before
the hearing date.
- A proper response to a noticed motion and all the response’s accompanying
papers need to be filed with the court and served (in a manner reasonably
calculated to ensure delivery to the other party by the close of the next
business day) at least 9 court days before the hearing date.
- A proper reply to a response to a noticed motion and all the reply’s
accompanying papers need to be filed with the court and served (in a manner
reasonably calculated to ensure delivery to the other party by the close
of the next business day) at least 5 court days before the hearing date.
Incomplete Income and Expense Declaration (Form FL-150).
CRC 5.92(a)(5) makes a
current (created and filed within 90 days of the hearing date) and
complete I&E required to be filed by both sides whenever any orders relating
to financial benefits or obligations are sought (e.g. child support, spousal
support and attorney’s fees are the common examples; see also CRC
5.427). Among other things, the form requires the I&E declarant to give
at least a good faith statement of net wealth, provide the most two recent
months of paycheck stubs, last year’s tax returns, and (if self-employed)
either last year’s Schedule C or two years of profit and loss statements.
If any of these items are missing from an moving party’s I&E,
the relief sought should be denied or at least the hearing may be continued
to allow for additional time for the movant to provide additional information
so the court has a complete I&E on file. If missing from the responding
party’s I&E, it can be a reason for the moving party’s
representations about the responding party’s income/wealth/ability
to pay as set forth in their own FL-150 (page 1, estimate of other's
party's income) to be accepted.
Best practice is to raise these procedural errors by written objection,
just as with substantive evidentiary objections. The proper procedure
is provided in the following section.
- Objection Procedure
CRC 5.111’s objection procedure is found in subjection (c) and generally requires
written objection(s) filed
two court days before the hearing on the RFO. Oral objections are permitted, by the objector
would need to give the court satisfactory explanation of why written objection
were not provided.
Interestingly, the procedure does not expressly require service of objections
on the opposing party. Nevertheless, in my practice I do serve a courtesy
copy of the objections on the opposing counsel (or party, if self-presented
and a fax or email contact has been previously provided). I also bring
two courtesy copies with me to the hearing to provide (1) to the bench
officer, and (2) to opposing counsel/party. I do so to make it as easy
as possible for the bench officer to go forward with rulings on the objections.
ALWAYS give your opponent any writings you want the Court to consider
before your case is called!
Several .pdf exemplars of my written evidentiary objections are going up on the website with or soon after this blog is published.
- Obtaining Rulings on Written Objections
To me, best practice is certainly to request the court rule on written
evidentiary objections as a preliminary matter at the beginning of a motion
hearing, and also to make a timely, formal request for a Statement of Decision.
CRC 5.111 is relatively new in the cannons of California family law. Perhaps
I am too cynical, but my impression is that some family law bench officers
do not want to take the time to make objection-by-objection rulings. Many
family law department calendars are clogged up, so this is understandable
in terms of judicial economy. But I have also found other bench officers
to be quite receptive to merited objections - they can be cleansing. I
think the philosophy of the former groups is something along the lines
of ‘I can sift through what is and what is not admissible without
counsel directing me.’ However, from the litigant's point of
view, failing to make timely written objections may result in failing
to make a proper record for appeal. This is a malpractice trap; the lawyer
needs to control the record as best s/he can for every client.
Moreover, improper substantive evidence and improper procedure are extremely
common in family law motion proceedings; this is a practice area so rife
with toxicity by the litigants (and sometimes lawyers) that it seems people
cannot help themselves. I have reviewed many declarations in which the
contents are 90%+ objectionable and improper, as many judicial officers
also recognize. With self-represented litigants, it’s usually a
writing style that is extremely conclusory (likely offspring of our culture’s
ever-increasing use of colloquialisms), and with lawyer-drafted declarations
it often seems that s/he can’t help arguing the case in the document
that is simply supposed to contain the facts. Unfortunately, though, this
vitriol sometimes does seem to persuade some judges, and it is certainly
extremely uncomfortable to listen to when it is directed against you or
To help counter argumentative declarations, the following cases are helpful:
Marriage of Davenport (2011) 194 CA4th 1507, 1516, 125 CR3d 292, 300 [RFO supporting declarations
are for factual allegations. They are not the proper vehicle to present
argument. The proper place for argument is in a memorandum of p's
and a's in support of your position. There, sanctions were imposed
for, among other things, filing declarations filled with arguments and
Marriage of Bardzik (2008) 165 CA4th 1291, 1297, 83 CR3d 72, 75, fn. 3 [reminding counsel
that declarations are supposed to reflect statements of the declarant
under oath, not legal argument by counsel].
Marriage of Heggie (2002) 99 CA4th 28, 30, 120 CR2d 707, 709, fn. 3 [noting family law practitioners
commonly include argument in their declarations, “but it is a sloppy practice
which should stop”; underline added for emphasis].
To help counter conclusory statements, these authorities may be helpful:
- If a witness is not testifying as an expert, testimony in the form of an
opinion is limited to opinions that are both (a) rationally based on the
perception of the witness, and (b) helpful to a clear understanding of
his testimony. Ev. C. § 800.
The rule “requires that witnesses express themselves at the lowest
possible level of abstraction i.e. conclusory statement are disfavored.”
People v. Hurlic (1971) 14 CA3d 122, 127, 92 CR 55, 58.
Lay opinion testimony is proper only when the witness' observations
cannot otherwise be conveyed, i.e., only when the witness "cannot
adequately describe his observations without using opinion wording."
People v. Miron (1989) 210 CA3d 580, 583, 258 CR 494, 495.
Where a lay witness can adequately describe his or her observations, opinions
are not allowed. In such event, opinions or conclusions on the subject
are not "helpful to a clear understanding" and thus inadmissible.
People v. Melton (1988) 44 C3d 713, 744, 244 CR 867, 884.
Similarly, "[g]enerally, a lay witness may not give an opinion about
another's state of mind." On the other hand, the "witness
may testify about objective behavior and describe behavior as being consistent
with a state of mind."
People v. Blacksher (2011) 52 C4th 769, 808, 130 CR3d 191, 232.
Finally, lay witnesses may not express opinions about ultimate legal issues
because such opinions are not helpful to a clear understanding of his
testimony and invaded the province of the judge or jury.
Osborn v. Mission Ready Mix (1990) 224 CA3d 104, 114, 273 CR 457, 462.
Finally, there is a downside to raising written objections in family law
proceedings - namely that it is hard to ‘unring the bell.’
It may be that in a bench officer’s sifting through a declaration,
s/he gave little or no weight to an improper statement, or the improper
evidence otherwise had little psychological impact on the bench officer.
By making an objection, you draw the bench officer’s attention and
critical thinking to the objectionable material. This process may give
the objectionable material more subconscious impact than it otherwise
would, and result in the opposite of the desired effect.
We hope this gives you some ideas about how to present and oppose objections
that arise in California divorce and family law litigation. As usual,
we will come back and flesh this out with even more detail, soon! And,
good luck out there!
Author: Michael C. Peterson, CFLS
Law Firm of Thurman W. Arnold