24 Cal. App. 5th 1119
Cal. Ct. App. 5th2018Background
- William (husband) filed for legal separation in July 2015, served preliminary disclosures (Forms FL-160/FL-150) but did not attach supporting documents; Diane (wife) did not initially respond.
- Parties signed a stipulation and waiver of final declaration of disclosure stating both had complied with disclosure statutes and agreeing the court could set aside the judgment if disclosures were not complied with.
- A default judgment incorporating a marital settlement agreement (MSA) was entered November 2015; the MSA divided property and waived spousal support.
- Wife moved to set aside the default judgment (Fam. Code § 2122), alleging lack of proper disclosures, coercion, mental impairment (depression), mistake of fact, and newly discovered tax consequences; she lodged declarations and supporting documents.
- At the February 16, 2017 hearing neither party offered live testimony; parties relied on pleadings and lodged declarations. The trial court reviewed the filings on the record, granted wife’s motion to set aside the judgment on grounds of mistake of fact and incomplete disclosure.
- Husband appealed, arguing the court violated Family Code § 217 by relying on undeveloped written declarations instead of receiving live testimony, and that the court applied the wrong legal standard regarding disclosure failures.
Issues
| Issue | Husband's Argument | Wife's Argument | Held |
|---|---|---|---|
| Whether the trial court violated Fam. Code § 217 by not receiving live testimony | Court improperly relied on declarations and pleadings without admitting them or permitting cross-examination | Parties both relied on filings; husband never timely requested or renewed live testimony; court identified documents it had reviewed | No error. Husband forfeited objection by not requesting live testimony; court permissibly considered filed declarations/pleadings given parties’ conduct and implicit waiver; good-cause finding adequate |
| Whether written declarations filed but not orally offered are inadmissible under § 217 / CCP § 2009 | Court erred under Shimkus/Swain principles by relying on declarations without admission or cross-exam | Husband relied on his own filed documents at hearing; he did not object to admission of wife’s filings | Distinguishable from Shimkus/Swain; absence of contemporaneous objection and parties’ reliance on documents meant trial court did not err |
| Whether the default judgment should be set aside for failure to comply with disclosure statutes (Fam. Code §§ 2104–2105) | Disclosures and stipulation waived requirements; judgment remains valid | Preliminary disclosures lacked supporting documents; stipulation was insufficient because statutory disclosure prerequisites were not actually met | Judgment properly vacated: statutory disclosure requirements were not satisfied, so waiver of final disclosure was ineffective; mistake of fact established |
| Whether the court applied incorrect legal standard in vacating the judgment | Court relied on insufficient evidence and wrong legal test regarding disclosure waiver | Court applied correct statutory standards requiring completed preliminary disclosures before waiver; considered statutory factors and record | No error. Court applied correct legal standard and grounded decision in failure to exchange required disclosures |
Key Cases Cited
- Elkins v. Superior Court, 41 Cal.4th 1337 (California 2007) (declarations are hearsay at trial; courts may not require trial by written declarations)
- In re Marriage of Shimkus, 244 Cal.App.4th 1262 (Cal. Ct. App.) (2016) (section 217 requires live testimony absent stipulation or good cause where court directed oral testimony)
- Mendoza v. Ramos, 182 Cal.App.4th 680 (Cal. Ct. App.) (2010) (failure to request live testimony forecloses objection on appeal; parties can forfeit right to oral testimony)
- In re Marriage of Swain, 21 Cal.App.5th 830 (Cal. Ct. App.) (2018) (trial court erred in relying on unchallenged declaration when opposing party objected and sought cross-examination under § 217)
- In re Marriage of Brewer & Federici, 93 Cal.App.4th 1334 (Cal. Ct. App.) (2001) (spousal fiduciary duty requires full disclosure of assets and valuations)
- In re Marriage of Burkle, 139 Cal.App.4th 712 (Cal. Ct. App.) (2006) (statutory disclosure requirements cannot be waived except in strict compliance with statute)