The question presented to the Court of Appeal, Fourth Appellate District, Division One (San Diego) in Marriage of George and Deamon* was whether a declaration, i.e., a written statement of fact signed under penalty of perjury, which is filed in support of a motion by a party who does not appear at the motion hearing can be considered in the court’s decision when the other party objects to the declaration because it is hearsay.
The takeaway from Marriage of George and Deamon: the family-court litigant who wants to cross-examine the other party at a motion hearing must satisfy two procedural requirements to do so; and, if those requirements are not satisfied as of the hearing date, a request to continue (i.e., reschedule) the hearing must be made to allow additional time to satisfy those requirements. Otherwise, the family court may consider the other party’s written declarations and other documents without cross-examination and regardless of whether the materials are offered into evidence.
FACTS
In the proceeding for the dissolution of their marriage, the parties, Petitioner Stephanie George and Respondent Daniel Deamon, attended a mandatory settlement conference in June 1, 2017, settling all issues and reciting the settlement on the record in the courtroom. The family court also dissolved the marriage on that date. Mr. Deamon’s attorney was ordered to prepare the written judgment of dissolution of marriage and to forward it to Ms. George for her approval before submitting it to the family court for filing.
Mr. Deamon’s attorney prepared the written judgment and forwarded it to Ms. George, who raised several issues and demands and otherwise refused to sign and return the judgment so it could be submitted to the family court. Thereafter, Mr. Deamon’s attorney offered multiple revisions of the proposed judgment, all of which Ms. George refused to approve. As a result, Mr. Deamon incurred unnecessary fees and costs because of the time spent on the various revisions and Ms. George’s failure to approve any of them.
On July 31, 2017, on Mr. Deamon’s request, his attorney filed a motion (i.e., a request for the family court to make findings and orders) for an entry of judgment under Code of Civil Procedure section 664.6 [“If parties to pending litigation stipulate . . . orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement”], based on the recitals in the courtroom on June 1, 2017. In the same motion, Mr. Deamon’s attorney included a request for a monetary sanction (the “sanction motion”) payable by Ms. George in the form of attorney fees and costs and in the amount of $10,000.00 under Family Code section 271 for Ms. George’s unjustifiable refusal to sign one of several drafts of the proposed judgment.
On September 7, 2017, the family court heard the motion for entry of judgment. At the hearing, Ms. George appeared in court without an attorney and approved the form of the Mr. Deamon’s proposed written judgment, after which the family court signed and filed it. The sanction motion was continued (i.e., rescheduled) to a future hearing date.
The family court heard the sanction motion on October 23, 2017. Ms. George again appeared in court without an attorney. Mr. Deamon’s attorney appeared on his behalf because Mr. Deamon resided in Japan and did not appear telephonically.
Ms. George, however, objected to Mr. Deamon’s failure to appear, which apparently was an ongoing objection throughout the dissolution proceeding. She specifically objected to Mr. Deamon’s declaration in support of his sanction motion because it was hearsay evidence.** At the end of the hearing, rather than make a ruling, the family court took the matter under submission (i.e., the judicial officer wanted contemplative time before making his or her decision and would provide the decision at a later date).
On November 28, 2019, the family court granted Mr. Deamon’s sanction motion, ordering Ms. George to pay $10,000.00 to Mr. Deamon’s attorney. In its decision, the family court considered the declarations and documents to which Ms. George objected on hearsay grounds. Ms. George appealed on the grounds that there was no live testimony with which she could cross- examine Mr. Deamon regarding the declarations and other documents he submitted for the family court’s consideration in making its ruling, and therefore the sanction motion was improperly granted.
ANALYSIS
Ms. George’s appeal relied primarily on Family Code section 217’s right to present live testimony. The appellate court agreed with that right in principle. Family Code section 217(a) requires that at the hearing of any order to show cause [aka request for order] or notice of motion brought pursuant to this code, absent an agreement of the parties or a showing of good cause, the family court must receive any competent and relevant live testimony within the scope of [issues to be addressed at] the hearing. [Every person is competent to be a witness unless disqualified by statute. (Evid. Code sec. 700.)] In finding good cause to refuse live testimony, the family court must state his or her reasons on the record or in writing. (Fam. Code sec. 217(b).) [Although not relevant in this case, a party intending to call a witness other than another party must file in the family court and serve all parties with a witness list which includes a brief description of the anticipated testimony of each witness. (Fam. Code sec. 217(c).]
In agreeing with Ms. George that there is a general right to live testimony at motion hearings, the appellate court stated Ms. George did not follow proper procedures to ensure Mr. Deamon’s live testimony was available for the family court to receive at the hearing of the sanction motion.
To begin with, in a civil proceeding [e.g., a dispute being resolved in family court], a party generally has no legal obligation to be personally present in court at a hearing or trial if he or she is represented by an attorney who appears on his or her behalf. (In re Dolly D. (1995) 41 Cal.App.4th 440, 445.) To ensure Mr. Deamon’s presence, Ms. George was required to serve Mr. Deamon with a notice to appear in accordance with Code of Civil Procedure section 1987(b) or a subpoena requiring him to appear at the hearing. Without doing so, the right to live testimony in the context of Family Code section 217 may be forfeited (Marriage of Binette (2018) 24 Cal.App.5th 1119, 1127). by failing to satisfy that requirement, Ms. George forfeited the right to live testimony by not providing live witnesses whose testimony could be received by the family court.
Ms. George also argued the declarations were not properly before the family court because she “did not agree to stipulate to the admission of the declarations” into evidence, and Mr. Deamon’s attorney never affirmatively offered the declarations and documents into evidence. She cited Marriage of Shimkus (2016) 244 Ca.App.4th, 1262. However, Shimkus concerned an evidentiary hearing for which the family court stated it would be receiving oral testimony, and under such circumstances the parties were required to offer declarations into evidence.
The appellate court dismissed the argument. If the parties offer no live testimony in support or opposition to a motion, Family Code section 217 does not prevent the motion from being decided based on the “declarations, pleadings, etc.” (Binette, supra, 24 Cal.App.5th at 1129; Code Civ. Pro. sec. 2009 [“An affidavit may be used . . . upon a motion, and in any other case expressly permitted by statute”].) It was proper to consider the sanction motion “based on the declarations and documents submitted prior to the hearing with no additional requirement that they be offered into evidence at the hearing on the motion” when no live testimony was offered by the parties.
Ms. George further argued the family court failed to make a finding of good cause to refuse live testimony under Family Code section 217(b). The appellate court stated Ms. George “did not expressly inform the family court” that she was requesting that she wanted to call Mr. Deamon as a witness so that she could cross-examine him or that she was asking for a continuance to allow her to do so.” According to the appellate court, if she had done so, the family court would have been required to make a finding of good cause to refuse to receive that testimony.
The appellate court stated the failure to make an express finding of good cause to refuse Mr. Deamon’s live testimony could not have had a prejudicial impact on the outcome of the sanction motion for two reasons. First, Ms. George failed to take the proper steps to make Mr. Deamon available at the hearing for cross-examination, and she made no attempt to continue the hearing. Hence, even without a finding of good cause, the family court could not, as a practical matter, grant Ms. George’s request to cross-examine Mr. Deamon.
Secondly, even without a finding of good cause, according to Family Code section 217(a), the family court could only receive live testimony that is “relevant and within the scope of the hearing.” Ms. George presented no explanation as to how her cross-examination of Mr. Deamon would have related to any of the issues upon which the family court decided the sanction issue. The family court’s ruling was based on the contents of the multiple relevant draft judgments that Ms. George refused to sign and the timeline connected with her negotiations with Mr. Deamon’s attorney.
Ms. George also relied on Marriage of Swain (2018) 21 Cal.App.4th 830, 837. In Swain, the appellate court held a family court was required to exclude a former wife’s updated Income and Expense Declaration filed in anticipation of a motion hearing and having never served it to the former husband. She then failed to show up at the continued hearing.
The former husband in Swain first saw her Income and Expense Declaration for the first time at the continued hearing and objected to it because he had no opportunity to cross-examine his former wife. Nevertheless, the family court considered the declaration in making its order over the former husband’s objection, and the Swain appellate court found the family court was mistaken in doing so. The Swain appellate court explained the hearsay exception created by Code of Civil Procedure section 2009, which allows the family court to consider a declaration at a motion hearing, does not apply when the opposing party is “unable” to cross-examine the declarant.
In Ms. George’s appeal, the appellate court indicated the Swain decision did not apply to the facts in Ms. George’s appeal because the former husband in Swain had no opportunity to take the appropriate steps to make the declarant available for cross examination and was completely “unable” to do so. Ms. George, on the other hand, was able to take proper steps to assure Mr. Deamon was available for cross examination at the motion hearing and failed to secure his live testimony. The appellate court in Ms. George’s appeal further distinguished Swain in that the former wife’s Income and Expense Declaration in that case was “centrally relevant” to the former husband’s motion to terminate spousal support, whereas Ms. George provided no explanation as to how the declaration she sought to exclude under Family Code section 217 was relevant to the motion for a Family Code section 271 sanction. (Apparently, Mr. Deamon’s declaration may have been relevant only to the motion for entry of judgment.)
CONCLUSION
The appellate court found that while Ms. George had no opportunity to cross-examine Mr. Deamon, she was able to: 1) file and serve a written notice of her intention to present live testimony (Fam. Code sec. 217(a)); and, 2) serve a written notice to appear (Code Civ. Pro. sec. 1987(b)) to secure Mr. Deamon’s presence at the hearing. Therefore, Ms. George forfeited the right to Mr. Deamon’s live testimony, the hearsay exception in Code of Civil Procedure section 2009 applied, and Mr. Deamon’s hearsay declaration could be considered despite no agreement of the parties.
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*All of the facts, the analysis, and the conclusion are paraphrased or my interpretation of the inferences from the appellate opinion(s). Some portions of the facts, analysis, and conclusion are omitted for brevity.
**Hearsay evidence is a statement (whether written, verbal, or communicated in some other way), other than that of a witness testifying in court, which is being offered into evidence for the truth of the statement. (Evid. Code sec. 1200.) Hearsay evidence is inadmissible as evidence unless a statutory exception exists which allows the hearsay to be considered by the court in resolving a dispute.