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 Rule 5.118.
Generally, 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 hearing date;
- 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.
- 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:
- 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 5.260 and 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 your client.
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 name-calling].
- 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