Failure to Request a Statement of Decision Changed the Outcome of This Appeal

Timothy Kowal, Esq.
August 24, 2022

One of the first pieces of advice an appellate attorney will give a trial attorney is: Don’t forget to request a statement of decision. But this advice puzzles experienced trial attorneys, who know that the trial judge, after a bench trial, is already required—without request—to give tentative decisions. And a statement of decision is usually just a copy-and-paste job of the tentative. So what, then, is the big deal?

The appellant in Marriage of Burger (D4d3 Aug. 18, 2022 No. G060313) 2022 WL 3500197 could tell you. Even though the trial judge had issued a written decision, the appellant lost her appeal because she failed to request a statement of decision. Here’s how it happened:

Nancy Burger was seeking an increased support award from her ex-husband, Robert. Nancy argued that Robert should contribute more money to meet her marital standard of living. Nancy also sought her attorney fees. The trial judge ultimately denied her request, including the request for attorney fees.

(For those interested, the opinion contains is an interesting discussion about how different courts handle a supporting spouse’s payment of adult children’s college tuition.)

Denial of certain requests—here, for need-based attorney fees under Family Code § 2030—must be accompanied by findings of the statutory factors.

Nancy argued that the trial court failed to consider her request for attorney fees and costs. She pointed out that the trial court's written ruling contained no express analysis of the factors governing need-based attorney fee awards under section 2030. Instead, the trial court summarily denied her request for attorney fees. Nancy argued this amounts to a failure by the trial court to exercise its discretion as to the attorney fee request and required reversal.

And Nancy had a point. Section 2030 says that the trial court “shall make findings” on the statutory factors. And a recent published opinion in Abdelqader v. Abraham (2022) 76 Cal.App.5th 186 held that, where a statute requires the trial court to make findings, the statute means what it says. The appellant is not expected to do anything further, including requesting a statement of decision.

But the failure to request the findings in a statement of decision meant that the Court of Appeal would infer the findings were made.

Unfortunately for Nancy, however, the court here held that her statutory right to findings was not enough. Robert pointed out that Nancy had failed to request a statement of decision. Absent a statement of decision, the reviewing court will infer any factual findings supported by substantial evidence that are necessary to the result. (Slavin v. Borinstein (1994) 25 Cal.App.4th 713, 718; In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133-1134.)

The cause-and-effect of failing to request a statement of decision is set out nicely in the opinion:

“This transforms the applicable standard of review from abuse of discretion to substantial evidence. In short, if substantial evidence exists such that the trial court could have properly exercised its discretion against awarding attorney fees, we must affirm. Crucially, this change means we do not consider whether the record reflects the trial court actually exercised its discretion and analyzed all the relevant factors—the standard of review compels us to assume the trial court did so if substantial evidence exists to support its judgment.”

And because the record reflected a comparison of assets indicating Nancy had more net assets than Robert, substantial evidence supported the denial of need-based fees.

This is significant because, had the abuse-of-discretion standard applied, reversal would have been required. That is because findings were required to be made, the trial court does not make them, and thus the Court of Appeal could not presume that the trial court considered the mandatory statutory factors. This results in a finding that the trial court abused its discretion, because the failure to exercise discretion is an abuse of discretion.

But instead, because the appellant did not request a statement of decision, the Court of Appeal inferred that the required findings—those not included in the written ruling—were impliedly made. That means the trial court did consider the requisite factors, and thus did not abuse its discretion.

Of course, this is all a legal fiction. But legal fictions comprise the substantial part of legal decisions.


This result is contrary to Abdelqader v. Abraham (2022) 76 Cal.App.5th 186 (discussed here). That case dealt with a similar statute that requires written findings be made (there, to rebut a presumption of domestic violence under Family Code § 3044).

The respondent in Abdelqader urged that the missing findings could be inferred under the implied-findings doctrine because the appellant had failed to request a statement of decision. But the Court of Appeal rejected that argument, holding that the trial court’s obligation to make findings required by statute was not conditioned on requesting a statement of decision: “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.” (Abdelqader, supra, 76 Cal.App.5th at p. 8.)

The same result should have obtained here. Just as with section 3044 at issue in Abdelqader, section 2030 requires that the trial court “shall make findings” on various factors. And just as in Abdelqader, the court here failed to make the required findings.

There appears to be a split on this issue within the Fourth District.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim 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 Contact Tim at or (714) 641-1232.

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