Marriage of Gimple and Parker

In this unpublished First Appellate District decision, the Court finds that reversible error was committed by the trial court when it failed to issue a Statement of Decision upon request of mother, as required by California Code of Civil Procedure, section 632. The case was remanded back to the trial court to issue a proper statement of decision.

Husband and wife obtained a status-only divorce in 2004; the court retained jurisdiction with regard to the custody and visitation of the minor child. During the subsequent trial on June 20, 2005, mother asked for primary custody and requested permission to relocate with child to New Mexico. Father requested joint physical and legal custody, with primary residence to be with father during the school year. The court issued its ruling orally, awarding joint physical custody with primary physical custody to father. Father was awarded sole legal custody.

In awarding sole legal custody to father, the court found that the father was more likely to facilitate an ongoing relationship between the child and the other parent; mother seemed to be "somewhat inflexible" on the issues which could affect her dealings with regard to father's contact with child. The court awarded solely legal custody to father because the parties had too many disputes over issues such as education, therapy, medical treatment; one parent needs to make these decisions. The court also made specific and detailed orders with regards to visitation. Finally, the court declared that the order would last one year only and was not a permanent order. At the end of the hearing, the court stated it's assumption that father's counsel would prepare the judgment and counsel agreed.

Only July 29, 2005, mother filed a written request for a statement of decision and motion for reconsideration. Mother requested that the court set forth the evidentiary and legal basis for deciding: legal custody; physical custody; that the order be temporary; that only the past two years of child's life was considered with regard to parental involvement.

Over the course of the next few months, the court kept deferring the matter of issuing a statement of decision and eventually ordered wife's counsel to prepare an amended request. This new request asked for the basis for awarding sole legal custody when neither party had requested that it be changed from joint; physical custody, including basis for denial of move to New Mexico; and why the order was deemed temporary. In the meantime, another hearing was held on November 2, 2005; the court issued findings and a visitation order and ordered father's counsel to prepare a proposed statement of decision.

On June 20, 2006, the court filed its Judgment on the custody and visitation issues from the June 20, 2005 determination. Mother timely appealed, contending that the court committed reversible error by not issuing a statement of decision as required by California Code of Civil Procedure, section 632. (See also Family Code, section 3022.3).

The Appellate Court found that the trial court was required to issue a written statement of decision following mother’s timely written request. “In a nonjury trial, the trial court’s failure to render a statement of decision after timely party request…is reversible per se.” See Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2007) citing In re Marriage of Sellers.

The case was remanded to the trial court to issue a proper statement of decision, although many of the issues are now moot and a new trial is not required.

Labels: child custody, reversible error, statement of decision, visitation