Fall 2015, Issue 4

Objections and Declarations: How to Use them for RFOs and Trial

With a newly minted bar card in hand, I began the practice—family law in Los Angeles. I learned to draft pleadings and client declarations, and navigate my way around judicial council forms. Over the years, though, I heard the Old Timers bemoan Reifler hearings and a yearning to return to the “good ol’ days.” Judicial officers nearly begged seminar attendees to rein in on the lengthy declarations—drafted by well-meaning attorneys—and the reams of accompanying written objections. Family law litigants attended Order to Show Causes but their voices were rarely heard. Years pass. Then came Elkins. Low-level panic swept around town. Would declaration practice be forever lost? What to do?

That same year my dad died and we moved back to Orange County to be near my mom. A different county, a different set of tools. In the courts, I quickly learned that at the morning calendar call, OSC time estimates weren’t necessarily to gauge argument, but witness testimony. Litigants often testified and other witnesses crowded hallways. On more than one occasion, I ran into situations where declarations were not read or considered, testimony was taken, but then orders rendered conflicted with the limited showing. In neither venue was there consistency. To the extent Los Angeles was comfortable with declarations, OC found refuge in live bodies. So, it seems more since Elkins, the family law courts have struggled with the notion of live testimony coupled with Request For Orders declarations—that one is not compatible with the other. The Elkins Commission and advent of Family Code Section 217, however, did not make these two evidence vehicles mutually exclusive. For our family law RFO hearings, declarations are in evidence: both the California Rules of Court and Code of Civil Procedure tell us so.

Starting first with CCP 2009, this statute instructs that an affidavit may be used for motions for “the examination of a witness.” From there, we find that family law RFOs fall within the ambit of a motion because CCP 1003 defines motion as an “application for an order.” (Code of Civil Procedure § 1003.) This, then, would include any family law Order to Show Cause and the newly dubbed Request for Order. If there is any question, CCP 1003 further defines “[e]very direction of a court or judge, made or entered in writing, and not included in a judgment, is denominated an order.” (Code of Civil Procedure § 1003.) Pulling it all together, an affidavit (declaration) is proper support—or opposition—for a motion (RFO). And, with a quick scan of old cases, we find this procedural premise has been around for decades—nothing new. (See Miller v. Miller (1943) 57 Cal.App.2d 354, 362-363 [An affidavit was proper support for a motion for increased allowance, pendente lite, for alimony and support of a minor child.].)

Then, getting to the Family Law CRCs, these rules require declarations. Rule 5.92 designates that in any Request for Order, FL-300 must be filed as well as FL-150. These are judicial council form declarations. In Response, an FL-320 declaration must be filed. In addition to the Judicial Council forms 300 and 320, CRC 5.111directs that “a party must file a supporting declaration with the court clerk and serve it on the other party.” And, these declarations must comply with certain procedural requirements outlined in that rule. If a party thinks the declarations do not conform, objections can be filed. And, if those objections are not ruled upon, they can be challenged later on appeal. (California Rules of Court, rule 5.111(a)-(c).) If the Rules of Court require declarations for all RFOs, logically, they must be admitted into evidence. Rule 5.111 implies this by the heading of Article 4—“Evidence at Hearings.” Why the title ‘Evidence at Hearings’ if, indeed, declarations were not evidence? And, if the declarations were not automatically slated for admission, CRC 5.111 would not provide a mechanism to object.

If there is any doubt of motion practice within family law and the use of declarations, a quick perusal of a principal family law treatise and its take on the corresponding CRCs makes it clear: looking to CRC 5.92, the Practice Guide instructs that any post-judgment modification application is made by the same method as pendente lite orders: ‘Notice of Motion’ or ‘Order to Show Cause’ which are prepared on the mandatory Judicial Council Request for Order form. (Hogoboom & King, Cal. Prac. Guide: Family Law (The Rutter Group 2013) paragraph 17:365 and 5:290). So, a party looking to modify must proceed either by OSC or motion (the distinction being that an OSC can secure and perfect personal jurisdiction over the Respondent where a notice of motion cannot). (Ibid, paragraph 5:295). Regardless of whether moving by motion or OSC, Rule 5.92 sets out the requirements: the FL-300 Request for Order Judicial Council form must be used and, with that, evidentiary “facts in support of the orders requested and change of circumstances for any modification” must be listed on the form or on an attached declaration. (Ibid, paragraph 17:367) Our practice guides provide the needed direction. The declarations are in evidence. With that, there is no exception to the court’s required consideration under CCP 2009 or CRC 5.111 just because testimony is also taken. This leads us to FC 217.

The Elkins decision was codified in Family Code Section 217. Mr. Elkins was not allowed to showcase his exhibits because most were not mentioned in a required-by-local-rule pre-trial declaration. And, because Mr. Elkins had failed to lay the foundation in his declaration, he was then not allowed to supplement by live testimony. He was denied due process, denied time to present his case because of a faulty local rule. The appellate court summarily denied his writ petition, but the Supremes saw otherwise. Seeing no need to address the constitutional issue —finding it easier just to show the local rule’s obvious evidentiary glitch—they simply outlined the hearsay component of declarations at trial:

We need not reach petitioner’s constitutional claim because, as applied to contested marital dissolution trials, the rule and order are inconsistent with various statutory provisions. fn. 1 As we explain below, we reach this conclusion because, pursuant to state law, marital dissolution trials proceed under the same general rules of procedure that govern other civil trials. Written testimony in the form of a declaration constitutes hearsay and is subject to statutory provisions governing the introduction of such evidence. Our interpretation of the hearsay rule is consistent with various statutes affording litigants a “day in court,” including the opportunity to present all relevant, competent evidence on material issues, ordinarily through the oral testimony of witnesses testifying in the presence of the trier of fact.

But the Elkins court was specifically addressing trials. Looking to Footnote 1, it reads: “Our conclusion does not affect hearings on motions.” The court was careful to acknowledge differing evidentiary rules for motions. There is no confusion that trial rules apply to Family courts just as they do with general civil cases. But, possible confusion about family law hearings exists. Family law is an odd procedural duck: there may be a myriad of RFO hearings before ever getting to trial—many of which being very substantive in nature. And, although they might look and smell like ‘mini-trials,’ from a declaration standpoint, they are not.

For FC 217, we are speaking family law RFO hearings—motions and OSCs.1 The purpose of 217—absent a finding of good cause—is to require the court to receive “any live, competent, and admissible testimony that is relevant and with the scope of the hearing.” (California Rules of Court, rule 5.113; Family Code § 217) Yes, FC 217 requires the court to accept live testimony unless good cause dictates otherwise. But this doesn’t mean declarations are out the window.; rather, the reverse. The court can exclude live testimony and rely solely on declarations. (Family Code § 217(b).) And, if a party doesn’t ask to present testimony, there is no court error in not allowing it. (Hogoboom & King, Cal. Prac. Guide: Family Law (The Rutter Group 2013) paragraph 5:493.6.) If declarations were not the mainstay evidence of hearings and RFOs, why would 217 have ever been contemplated? Under both FC 217 and CRC 5.111, the court can choose not to allow live testimony. With a good cause finding to disallow, there would be none. So, what evidence? The declarations.

Still, some make the argument that declarations are hearsay. This they are. But, the Elkins hearsay exclusion holds they are only inadmissible at trial where controverted facts require fact-finding resulting in a judgment. (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1355-56.) For motions—our RFOs—the CCP 2009 exception to the hearsay rule applies. This is why Elkins emphasized “[a]lthough affidavits or declarations are authorized in certain motion matters under Code of Civil Procedure section 2009, this statute does not authorize their admission at a contested trial leading to judgment.” (Ibid. [emphasis in original].) Even still, where the declarations are submitted at trial, if the parties stipulate to the admission or fail to enter a hearsay objection the declaration is admissible. (Ibid.)

And, others make it a practice—at the outset of any hearing—to identify declarations they want admitted and make that request. But, there is no requirement and no reason to do so. Rather, the CRC directs only that one object to declarations if they are noncompliant with the rules. Perhaps these attorneys are thinking trials. And, at trial, one might offer a declaration as an exhibit—hoping to avoid a hearsay objection—or reach an agreement that the declarations come in subject to cross. In this regard, Elkins was careful to differentiate where statutory exceptions allow for declarations, but emphasized they are inadmissible at trial—unless the parties stipulate to admission or fail to enter a hearsay objection. (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1345 and 1354-56.) So there is no requirement to offer declarations at an RFO; they are already in evidence.

Family Law RFO declarations come in all shapes and sizes. There are initial Request for Order Declarations, Income and Expense Declarations, Responsive Declarations, Support Declaration for Attorney’s Fees and Costs, Keech declarations, Support Declarations for Support, and a myriad of others. And—once filed—are all in evidence unless timely objected. In sum, they are used throughout family law proceedings, are required under the CRCs, per CCP 1003 are defined as support of motion, and—despite being hearsay—are immune from that objection and admissible because of CCP 2009. For case law, Miller is one to conclude affidavits are proper evidentiary support. And, as for Elkins, the hearsay admonishment was specifically directed to trial procedure—the case differentiating declaration admissibility between motions and trials. Further, the CRCs require declarations to be filed with any Request for Order and comply with the myriad of rules found under the heading of Article 4—Evidence at Hearings. And, if the declarations fail to comport with those directives, objections can be filed. Then, moving to the relatively new Fam Code 217—that statute requires only that the court provide good cause if wanting to exclude live testimony and make orders exclusively by declarations—not that declarations are inadmissible. So, regardless of shape or size, RFO declarations are in evidence. Object if you don’t like it—one way or another. ■

1 FC 217: At a hearing on any order to show cause or notice of motion brought pursuant to this code, absent a stipulation of the parties or a finding of good cause pursuant to subdivision (b), the court shall receive any live, competent testimony that is relevant and within the scope of the hearing and the court may ask questions of the parties.