Legal News and Appellate Tips

Most findings in family court are left to the judge’s discretion. But not a custody order—at least, not once the judge has found that the parent has engaged in domestic violence. Even though the father’s only “domestic violence” was ringing up the mother’s employer, the court in Hutchins v. Hutchins (D4d1 Sept. 13, 2022 no. D078855) 2022 WL 4138735 (nonpub. opn.) held that the 50/50 custody order could not stand, because the family court failed to make written findings on the seven statutory factors. (Fam. Code, § 3044(b)(2).)

Here, the family court acknowledged the presumption, and concluded that it was “rebutted.” But this was not enough. The trial court must undertake two steps before concluding that the presumption of section 3044 has been overcome.

And the failure to make the findings was prejudicial error. But the court’s analysis on this point is underwhelming. And it seems to run afoul of the Supreme Court’s F.P. v. Monier holding from 2017 that missing findings are not structural error, and real prejudice has to be shown. On the record here, it appears the father easily could have rebutted all of the section 3044 factors.

On remand, I suspect the family court will simply make the missing findings to support to same 50/50 custody result.

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 in F.P. v. Monier. Instead, to be reversible, the trial court’s failure to make findings must prejudice the appellant.

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.

Comment: While I strongly agree that litigants deserve reasons for a court’s decision, the court’s analysis in Abdelqader is unsatisfying. The court furnished no basis to distinguish the Supreme Court’s Monier holding. 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.

This unpublished decision reviews a trial court's reliance on improper evidence. The case, In re Marriage of Patterson (D5 Feb. 9, 2021) No. F076753, is a good illustration of a key points of trial practice: The trial court may not rely on evidence that was not properly admitting into the record. And judicial notice will not get you there on matters of "substantial consequence" without following the statutory procedures.

The case is also a good illustration of a key point of appellate practice: Even if the trial court relies on improper evidence, that error is not reversible unless the evidence prejudiced the appellant. If there was other substantial evidence supporting the findings, as there was here, the error will be deemed harmless.