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Appeals, Writs, and Complex Motions Practice

Statements of Decision, Part 1

You Know You Need One: A Good Statement of Decision (Part One) © 2015 by Kimball J.P. Sargeant

We all know what a statement of decision is: a formal document, signed by the judge after a bench trial, explaining the factual and legal basis for the court’s decision. Obtaining one after a family law trial may be important, not only for an anticipated appeal, but also to establish a baseline for the parties in the event there are later proceedings to modify an order for custody, visitation or support, based on changed circumstances.
Most practitioners also know how to initiate the statement of decision process, which is relatively straight-froward. In a short trial (generally, one calendar day or less), the request must be made before the attorneys submit the matter for decision. For a longer trial, the request must be made within 10 days after the court announces its tentative decision. (CCP § 632.)

Be specific!
But a lawyer who believes he has protected his client’s rights merely by timely asking for one has embarked on a fool’s errand. Experienced litigators realize that section 632 requires the requesting party to “specify” the “controverted issues” on which he or she is requesting a statement of decision. Nor is an attorney’s work done when she specifies the issues (both legal and factual) for which an explanation and analysis is requested. Unless the court undertakes to write its own proposed statement of decision, one of the parties (almost universally the prevailing party) will be tasked with drafting the proposed statement.
Both parties are entitled, and should consider making, proposals for the content of the statement. And then the parties have the opportunity to make objections to the proposed statement.
This two-part article provides family law attorneys with guidance and suggestions, from an appellate practitioner’s perspective, on how to go about specifying the “principal controverted issues at trial” in a request for statement of decision, as well as how to craft better proposals.

What’s a principal controverted issue?
To begin, we need to define what is meant by the “principal controverted issues” in a case. Courts have said that a statement of decision need only set forth “ultimate facts”; the court is not required to address or make findings on mere “evidentiary facts.” Use of the descriptor, “ultimate,” may cause mischief, however, if taken to mean that the trial court need only state its conclusion as to the ultimate question on an issue.
For example, in one case the judge valued a family law litigant’s law practice at zero, declaring in its statement of decision that it was applying the excess earnings method to reach this result. On appeal, the appellate court found that, while this accounting method was an appropriate one to value the practice’s goodwill, the sole use of that method failed to account for the practice’s fixed assets, accounts receivable, work in progress not billed, liabilities, etc. The trial court was required to use an alternate method to value these assets and liabilities, and to then state its findings with respect to each element to properly determine overall value. (In re Marriage of Garrity and Bishton (1986) 181 Cal.App.3d 675, 688-689.) Thus, while the ultimate question was the overall value of the law practice, the trial judge was required to state the methods adopted for valuation, and to make subsidiary findings for each element.
An alternate term, which has been used to describe the proper scope of a request, is that it must be directed to a “material issue of fact.” That is “one which is relevant and essential to the judgment and closely and directly related to the trial court's determination of the ultimate issue in the case.” (Kuffel v. Seaside Oil Co. (1977) 69 Cal.App.3d 555, 565.) Thus, it is proper to ask the trial judge to make findings on “subsidiary issues” if such issues are closely and directly related resolving the ultimate question itself. Put another way, the trial judge is not required to make findings on subsidiary facts that are “remote in the chain of determination of the ultimate fact.” (Id.)
Here is a practical suggestion to help in framing requested subsidiary findings on an ultimate question. Assuming for the moment the court has found against you, ask yourself this: if the court finds in my favor on the requested subsidiary issue of fact, will that finding necessarily change the court’s tentative decision on that issue? If so, then you have very likely identified a material issue of fact. And even if a favorable finding does not compel a change in the disposition, if it nonetheless substantially undercuts the logic and force of the court’s resolution of the ultimate question, then perhaps you have a material issue of fact. At the other end of the spectrum, courts have consistently found that requests for findings on the credibility of a particular witness, the impact of certain evidence, or the precise nature of a monetary calculation, all fall in the category of mere evidentiary facts.
A good starting point for constructing your requested findings of fact is to determine the essential legal elements underlying the issue in question. Almost every issue that arises in a family law action is governed by statute, and the relevant statute’s terms, sometimes augmented by court decision, establish the “elements” for a particular claim. (See, e.g., Fam. Code, § 4320, setting forth the factors to be considered by the family court in its order on spousal support.) Courts have held that a statement of decision after a bench trial is adequate if it fairly discloses the judge’s determinations as to the “core facts,” such as the essential elements of a claim.

Be fair! Don’t argue!
It is also important to frame your requests for findings on particular issues in a neutral manner; avoid compound questions, argumentative or accusative ones, or interrogatories, demanding to know “which facts support that finding.” (See Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547.)
I strongly recommend that, in drafting a request, at least your outer tone with the court (if not your inner heart) should be collaborative in reaching the best decision possible, and not confrontational. If your specification of material issues is overly argumentative, you may risk losing your entitlement to a statement of decision on those questions. (See Yield Dynamics, supra.)
In next month’s article, I will work through a sample case, loosely based one I was involved with a few years ago, to illustrate the principles we have covered here. Stay tuned!

Kimball J.P. Sargeant is a principal at the Law Offices of Sargeant & Conrad. Both he and his partner, Linda Conrad, are Certified Appellate Specialists by the State Bar’s Board of Legal Specialization.