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.
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 for attorney fees.
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, as required under section 2030.
Unfortunately for Nancy, however, 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.)
Had the abuse-of-discretion standard applied, reversal would have been required. Instead, the Court of Appeal presumed the trial court did consider the factors, even though it made no findings on them. Affirmed.
Note that this result is contrary to Abdelqader v. Abraham (2022) 76 Cal.App.5th 186. Dealing with a similar statute that requires written findings be made (to rebut a presumption of domestic violence under Family Code § 3044).
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. A request for a statement of decision is not required where the statute independently requires findings be made.
But the Burger court did not discuss Abdelqader. There appears to be a split on this issue within the Fourth District.