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In this unpublished First Appellate District decision, the Court finds that reversible error was committed by the trial court when it failed to issue a Statement of Decision upon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

In a post-divorce proceeding, family law judge in Los Angeles County asked parties to select an evaluator to decide where their two children should go to school. The court also set a deadline for the evaluation and said that the fees would be split by the mother and father out of the proceedings from the sale of the family home.

Mother's lawyer suffered a series of family emergencies and waited almost two weeks before inquiring about the evaluation. Father's counsel indicated that the evaluator's fee would not exceed $2500. A couple of days later, the evaluator called mother's lawyer to see why mother hadn't tried to schedule her interview. Counsel claims he told her "a phone call would have shown [mother] cared about her child". After an exchange regarding how the scheduling should have been handled, mother's lawyer accused evaluator of being biased against mother. Evaluator unilaterally set appointment with mother and one of the children during a time that father had custody of the kids. Mother's counsel requested that the evaluator decide when Mother should pick up the kids so that mother could have time with kids prior to the evaluation to protect against undue influence or bias by the father.

The evaluator then faxed a proposed stipulation that had already been signed by the father. It failed to limit the purpose of the evaluation to school placement. It also indicated his fees were $3,000 initially, with an additional $300/hr. The evaluator then sent mother's lawyer a letter, with a copy to the trial court, stating that he would be evaluating school placement only for the older child and that the retainer of $3000 would be required prior to mother's interview. He also gave his version of the conversation he had with mother's lawyer. He also indicated that mother's lawyer had asked him to alter the current custody visitation order. The next business day, mother's attorney asked the evaluator to recuse himself because he made ex parte communications, had father sign a stipulation and submit to an interview before mother's counsel could review it and protect mother's interests, and failed to protect mother's interests by ordering her additional time with the children before the interview.

Mother appeared ex parte the next day, asking that the court remove the evaluator and vacate the order to pay his fees. The family law judge was disturbed that mother's counsel waited until Monday to ask evaluator recuse himself due to Friday's phone call and that mother's lawyer should have called the evaluator right away to schedule the interview. However, the court also found that the evaluator had made an improper ex parte communication and needed to be removed. Mother was ordered to pay evaluator's bill for time spent -- $2,400.

Mother then filed a motion to vacate the fee order and requested that an evidentiary evaluation be held to determine the basis of the fees and the reasonable value thereof. The Court denied the motion. Mother appeals.

The Court of Appeal found that the trial court abdicated its duty to fix the evaluator's fees under Evidence Code, section 730. First, the trial court did not even review the bill. Second, the court directed mother to take up any issues with the billing directly with the evaluator himself. This is in violation of the court's duty to determine reasonableness of fees. The issues was sent back to the family court judge to determine the reasonableness of the fees, whether he is entitled to anything due to the fact that he violated court rules, and whether mother should have to pay the entire amount. The court must also consider her ability to pay.

Case: Marriage of Tavares
Court: Los Angeles County

Labels: child custody, court-appointed evaluator, visitation