Marriage of Akerlund
Filed 7/6/12
Marriage of Akerlund CA6
OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
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publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
In re the Marriage
of FRITZ and JEANNE AKERLUND.
H036686
(Santa Clara County
Super. Ct. No.
FL117215)
FRITZ
AKERLUND,
Appellant,
v.
JEANNE
AKERLUND,
Respondent.
In
this dissolution proceeding involving a lengthy marriage between Fritz and
Jeanne Akerlund, a trial ensued and judgment was thereafter entered.
judgment, asserting three claims. First,
he argues that the judgment must be reversed because the court failed to file a
statement of decision after Fritz made a timely request for one. Fritz contends further that the court erred
in denying his request that Jeanne reimburse the community for the value of her
exclusive use of the family home for a period of several years, otherwise known
as Watts
171 Cal.App.3d 366 (Watts))
credits. Third, he asserts that the
court erred in awarding attorney fees to Jeanne without giving consideration to
Fritz’s ability to pay those fees.
We
conclude that the court committed reversible
error by failing to file a statement of decision in response to Fritz’s
timely request. Accordingly, we will
reverse the judgment with instructions that the trial judge who heard the
matter prepare and file a statement of decision.
PROCEDURAL HISTORY
Fritz
filed a petition for dissolution of his marriage with Jeanne in December
2003. He alleged that the parties were
married in July 1982, had two children, and had separated in November 2003. In February 2004, the court ordered, among
other things, that Jeanne would be granted temporary exclusive use of the
couple’s family home in Los Altos. The court ordered further
that Fritz pay child support and spousal support.
A
trial on the remaining issues occurred on December 16, 17, and 21, 2009, before
a licensed attorney, James F. Cox, Temporary Judge.
post-trial briefing, Temporary Judge Cox issued a tentative decision,
identified as his “Intended Decision,†on November 22, 2010. The Intended Decision
disposed of various matters including Fritz’s request for
support arrearages; and attorney fees and costs. Judgment was entered on January 12,
2011. Fritz filed a timely
DISCUSSION
I.
Issues on Appeal
Fritz
asserts three claims of error on appeal.
They concern the court’s (1) failure to provide a statement of decision,
(2) failure to award Watts credits in favor of Fritz as requested, and
(3) award of $15,000 attorney fees in favor of Jeanne.
first contention has merit and necessitates reversal, we do not address the
second and third claims of error.
II. Statement of Decision
A.
Background and Contentions
At
the end of the second day of trial (on December 17, 2009), there was a
discussion between the court and counsel in which Temporary Judge Cox indicated
that there had been a request for statement of decision by counsel.
a timely request for a statement of decision at that time. Fritz’s alleged request notwithstanding,
Temporary Judge Cox noted in his November 2010 Intended Decision that
“[n]either party requested a Statement of Decision.†Fritz’s counsel thereafter in response to the
Intended Decision, advised Temporary Judge Cox that she had, in fact, made a
request for a statement of decision during the trial; she renewed that request
in her response. The judgment entered in
January 2011 similarly stated that “[n]either party requested a Statement of
Decision.â€
Fritz
argues that the failure of Temporary Judge Cox to render a statement of
decision in response to his request constituted error. He contends that this omission was
“reversible error per se. [Citation.]â€
Jeanne
responds that “[t]here is no request for a Statement of Decision in the record
in this matter.†She contends further
that even assuming a proper request had been made, Temporary Judge Cox’s
Intended Decision and the judgment thereafter entered satisfied the
requirements of a statement of decision in that they provided specific findings
on the issues in controversy.
B. Applicable
Law
Under
Code of Civil Procedure section 632, a court is obligated after a trial, upon a
timely request by a party, to provide a statement of decision “explaining the factual and legal
basis for its decision as to each of the principal controverted issues at
trial.â€
the record by requesting and obtaining from the trial court a statement of
decision pursuant to California Code of Civil Procedure section 632 [and rule
3.1590 of the California Rules of Court].
The statement of decision provides the trial court’s reasoning on disputed
issues and is our touchstone to determine whether or not the trial court’s
decision is supported by the facts and the law.†(Slavin
v. Borinstein (1994) 25 Cal.App.4th 713, 718.) The court in its statement of decision need
not address all legal and factual issues that the parties have raised; rather,
it must “ ‘state only ultimate rather than evidentiary facts because findings
of ultimate facts necessarily include findings on all intermediate evidentiary
facts necessary to sustain them.
[Citation.]’ [Citations.] In other words, a trial court rendering a
statement of decision is required only to set out ultimate findings rather than
evidentiary ones.†(Muzquiz v. City of Emeryville (2000) 79 Cal.App.4th 1106,
1125.)
Section
632 specifies the procedure by which a party may request a statement of
decision. If the trial is more than one
day, the request must be made within 10 days of the announcement by the court
of its tentative decision.
(§ 632.) If the trial is
less than one day (or less than an aggregate of eight hours if conducted over
multiple days), a party must make the request “prior to the submission of the matter for
decision.â€
(§ 632.) If no party makes a
timely request for a statement of decision, because of the presumption that the
judgment is correct, an appellate court “must infer the trial court . . . made
every factual finding necessary to support its decision.†(Fladeboe
v. American Isuzu Motors, Inc. (2007) 150 Cal.App.4th 42, 61; see also
In re Marriage of Dancy (2000)
82 Cal.App.4th 1142, 1159, superseded by statute as stated in
Cal.4th 179, 185 and fn. 6.) Therefore,
because of the application of this doctrine of implied findings, “a trial
court’s failure to issue a statement of decision can have a significant adverse
effect on that party’s ability both to assess whether an appeal is justified
and, if an appeal is filed, to present an effective challenge to the trial
court’s decision.†(Gruendl v. Oewel Partnership, Inc. (1997) 55 Cal.App.4th 654, 661.)
A
court’s failure to file a statement of decision following a timely request
therefore constitutes “per se reversible error.†(Miramar
Hotel Corp. v. Frank B. Hall & Co. (1985) 163 Cal.App.3d 1126 (
case, the court issued its tentative decision (labeled as “ ‘Memorandum of
Decision and Statement of Decision . . .’ â€), and the cross-complainants made a
timely request for statement of decision.
(Id. at p. 1127.) There was no indication in the record that
the court took notice of the request, and a judgment was entered without a
statement of decision having been filed.
(Id. at p. 1128.) The appellate court rejected the court’s
attempt to circumvent the statement of decision process by terming its decision
as such, holding that the tentative decision did not explain the legal and
factual bases for the court’s decision and “the trial court deprived appellants
of an opportunity to make proposals and objections concerning the court’s statement
of decision. [Citation.]†(Id. at
p. 1129.) Holding that the filing
of a statement of decision under such circumstances was mandatory under section
632 (Miramar Hotel, at p. 1129), the
court explained: “The Legislature, by
its enactment of section 632, and the Judicial Council, by its adoption of
California Rules of Court, rule 232 [now rule 3.1590] . . . , have created a
comprehensive method for informing the parties and ultimately the appellate
courts of the factual and legal basis for the trial court’s decision. [¶] A statement of decision prepared in
conformity to the established procedure may be vitally important to the
litigants in framing the issues, if any, that need to be considered or reviewed
on appeal. Parenthetically, such a statement
may render obvious the futility of an appeal.
Eventually, a careful issue identification and delineation may also be
of considerable assistance to the appellate court.†(Id.
at pp. 1128-1129, fn. omitted.)
Numerous
cases are in accord with Miramar Hotel,
supra, that the failure to file a
statement of decision following a party’s timely request for one is reversible
error. (See, e.g., Espinoza v. Calva (2008) 169 Cal.App.4th 1393, 1397-1398;
Cal.App.4th 1007, 1010-1011; In re
Marriage of Ananeh-Firempong (1990) 219 Cal.App.3d 272, 282-284;
AFL-CIO v. County of Monterey (1989) 208 Cal.App.3d 676, 678-681;
Cal.App.3d 214, 219-220, disapproved on another ground in
Cal.3d 440, 451, fn. 13; In re Marriage
of S. (1985) 171 Cal.App.3d 738, 746-750.) The proper procedure where such error has
occurred is for the appellate court to remand the case to the trial judge who
heard the matter with instructions that he or she complete the process of
preparing and entering a statement of decision.
(Karlsen v. Superior Court (2006)
139 Cal.App.4th 1526, 1531.)
C. Analysis of Claim of Error
1. Whether
request was made
We
address initially Jeanne’s claim that the record does not reflect that Fritz
made a request for statement of decision.
We reject that contention.
At
the conclusion of the second day of trial, the following exchange occurred
between Temporary Judge Cox, counsel for Fritz (Heidi Hudson), and counsel for
Jeanne (Constance Carpenter): “[The
Court:] I would note counsel has requested a statement of decision on
[permanent spousal support]. [¶ Ms.
Carpenter:] The Watts and the attorney’s fees.
[¶ Ms. Hudson:] On the Watts and the attorney’s fees. [¶The Court:] Also— [¶ Ms. Hudson:] And on
the permanent spousal support. [¶The
Court:] Okay. [¶ Ms.
Carpenter:] Permanent spousal
support. If there is going to be a
statement of decision, it is not a settlement conference, that’s a trial. [¶The Court:] They can always be waived. It is being requested right now presuming a
trial[. W]e are in trial, and if we
compromise and settle then [there is] not going to be a statement of
decision. It will be settled.†After brief further discussion unrelated to a
request for statement of decision, the trial was adjourned for the day with an
indication that it would resume with further proceedings on three issues: Fritz’s claim for Watts credits, permanent spousal support, and attorney fees and
costs.
The
foregoing demonstrates that a proper oral request for statement of decision was
made in compliance with section 632 before the matter was submitted. (Whittington
v. McKinney (1991) 234 Cal.App.3d 123, 126 [request for statement of
decision may be made orally]; In re
Marriage of Ananeh-Firempong, supra,
219 Cal.App.3d at p. 284 [same].) What
is less clear is whether the request was being made on behalf of Fritz, Jeanne,
or both parties. But within 10 days
after the court issued its Intended Decision, Fritz’s attorney thereafter
indicated in writing that she had requested a statement of decision “at the
outset of trial†and renewed that request.
Although Jeanne’s counsel submitted proposed corrections to the Intended
Decision, there is nothing in the record indicating that she disputed the claim
that Fritz had requested a statement of decision during trial. We therefore conclude that Fritz made a
timely request for statement of decision.
2. Failure
to issue statement of decision
It
is plain that once we have determined that Fritz in fact requested a statement
of decision and none was forthcoming, the principle of per se reversal
enunciated in Miramar Hotel,
support of the proposition—urges that the Intended Decision and judgment
satisfy the requirements of a statement of decision and thus should be deemed
such a statement under section 632.
Jeanne’s argument lacks merit.
Section
632 and California Rules of Court, rule 3.1590, provide a specific procedure
that the court must follow in the event a timely request for statement of
decision is made by any party. In the
tentative decision, the court may either indicate that it will prepare, or will
order a party to prepare, a statement of decision. (Cal. Rules of Court, rule 3.1590(c)(2),
(3).) Alternatively, a court may
specifically indicate that its tentative decision will be its proposed
statement of decision, subject to a party thereafter asserting formal
objections thereto. (Cal. Rules of
Court, rule 3.1590(c)(1).) As a fourth
approach, it may “[d]irect that the tentative decision will become the
statement of decision unless, within 10 days after announcement or service of
the tentative decision, a party specifies those principal controverted issues
as to which the party is requesting a statement of decision or makes proposals
not included in the tentative decision.â€
(Cal. Rules of Court, rule 3.1590(c)(4).) But because a tentative decision is not
binding on the court (Cal. Rules of Court, rule 3.1590(b)), unless the court
expressly orders otherwise as provided in rule 3.1590 of the California Rules
of Court, the tentative decision may not be considered the statement of
decision. (In re Marriage of Ditto (1988) 206 Cal.App.3d 643, 647; see also
Wegner et al., Cal. Practice Guide:
Civil Trials and Evidence (The Rutter Group 2011) ¶ 16:164, p. 16-37.)
The
court here did not designate that its tentative decision (identified as its
Intended Decision) would serve as its statement of decision in accordance with
either subdivision (1) or (4) of rule 3.1590(c) of the California Rules of
Court. There is no authority for
Jeanne’s suggestion that either the Intended Decision or the judgment thereafter
entered may be deemed a surrogate statement of decision under these
circumstances, or that the procedural requirements of section 632 and
California Rules of Court, rule 3.1590 may be otherwise ignored. We therefore conclude that the court’s failure
to file a statement of decision constituted per se reversible error. (Miramar
Hotel, supra, 163 Cal.App.3d
1126.)
DISPOSITION
The
judgment is reversed and the matter is remanded with instructions that the
trial judge file a statement of decision.
The court exercises its discretion in ordering that each party shall
bear his/her respective costs on appeal.
(Cal. Rules of Court, rule 8.278(a)(5).)
Duffy,
J.
WE CONCUR:
Rushing, P.J.
Premo, J.
parties by their first names. We mean no
disrespect in doing so. (See
Cal.App.4th 1131, 1136, fn. 1.)
in October 2005, Cox, an attorney in Scotts Valley, was appointed temporary
judge for all purposes in the case. The
first two days of trial were reported; the third day, by stipulation of the
parties, was not reported.
