Failure to Make Required Findings Held Reversible Per Se

Timothy Kowal, Esq.
April 5, 2022

Trial courts are required to make findings after certain proceedings. So is a court’s failure to make findings reversible error? A few years ago, the California Supreme Court answered: No. (F.P. v. Monier (2017) 3 Cal.5th 1099 [failure to issue statement of decision not reversible per se].) Instead, to be reversible, the trial court’s failure to make findings must prejudice the appellant. (Id.)

But the Fourth District held the opposite in a published opinion in Abdelqader v. Abraham (Mar. 10, 2022 D4d1) --- Cal.Rptr.3d ----. The trial court failed to make required findings, and on that basis, the Court of Appeal reversed. Although the respondent argued the error was harmless, the court disagreed. The court essentially concluded the failure to make findings was a structural defect — the precise argument the Supreme Court rejected in Monier.

Findings Are Mandatory to Rebut the Presumption Under Fam. Code, § 3044:

In Abdelqader, after husband and wife separated, wife filed a request for a domestic violence restraining order, alleging verbal and physical abuse. Mother obtained a TRO, but then had second thoughts and withdrew the application, declaring she no longer needed protection. Then she decided she was right the first time, and the court found husband had committed domestic violence.

That finding of domestic violence triggered the rebuttable presumption under Family Code section 3044 that an award of joint or sole custody to father is not in the children’s best interests. (Ellis v. Lyons (2016) 2 Cal.App.5th 404, 415.) The section 3044 “presumption is mandatory and the trial court has no discretion in deciding whether to apply it....” (Celia S. v. Hugo H. (2016) 3 Cal.App.5th 655, 661 (Celia S.).)

To rebut the section 3044 presumption, the trial court must make findings that the award of custody is in the child's best interest (§ 3044, subd. (b)(1)), and that the six additional enumerated factors, on balance, support an award of custody. (§ 3044, subd. (b)(2).) If the court determines the presumption has been rebutted, it must state the reasons for its decision in writing or on the record. The statement of reasons must address all of the factors outlined in section 3044, subdivision (b). (§ 3044, subd. (f); Jaime G. v. H.L. (2018) 25 Cal.App.5th 794, 805.)

The Trial Court’s Failure to Make the Findings Required by Fam. Code, § 3044(f) Is Automatically Reversible Per Se:

Despite section 3044(f) requires the trial court make findings on the factors under subdivision (b), the trial court failed to make any findings. The court emphasized that “the statute is explicit that the court must consider the factors set forth in subdivision (b) and, if the court determines that the presumption has been overcome, it must state its reasons in writing or on the record. (§§ 3044, subd. (f)(1).)

Husband argued that, under the doctrine of implied findings, the court must infer the trial court made the required findings. “ ‘Under the doctrine of “implied findings,” when parties waive a statement of decision expressly or by not requesting one in a timely manner, appellate courts reviewing the appealed judgment must presume the trial court made all factual findings necessary to support the [order] for which there is substantial evidence.’ ” (In re Marriage of McHugh (2014) 231 Cal.App.4th 1238, 1248.)

But the court refused to apply the doctrine of implied findings: “our independent research has not found any case where an appellate court held that a trial court does not have to comply with the requirements of section 3044 unless a party requests a statement of decision. The reason for this absence is clear. Section 3044 is not triggered by whether a party requests a statement of decision. Further, such a request (or the absence of such a request) does not impact a court's duty to follow section 3044 whatsoever.”

The respondent specifically noted that the appellant had failed to establish the missing findings resulted in any harm. But the court reversed anyway, reiterating that findings under section 3044(f) were mandatory.

Comment: While I strongly agree that litigants deserve reasons for a court’s decision, this analysis is unsatisfying. First, note that it is a fundamental tenet of appellate review that the judgment appealed from is presumed correct, and “‘All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.’” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) The requirement of findings under section 3044(f) is not more mandatory than the requirement under Code of Civil Procedure section 632 concerning statements of decision. And the Supreme Court in Monier held that the lack of mandatory findings in the latter case is not automatically reversible: prejudice must be shown. The Abdelqader court furnished no basis to distinguish Monier. In fact, the court did not even mention Monier.

The Upshot: In any custody matter in which the presumption under Family Code section 3044 is triggered, look hard for any missing findings. Under Abdelqader, that defect is reversible per se.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at, and publishes a newsletter of appellate tips for trial attorneys at His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at or (714) 641-1232.

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