Kowal Law Group Logo
New Trial Motion Judge

Spousal Support Order Reversed on Appeal for Lack of Explicit Findings

Tim Kowal     January 6, 2021

In this dissolution proceeding in Nevai v. Klemunes (In re Marriage of Nevai) (D3 Dec. 29, 2020) No. C086584, wife, who had quit her engineering career to raise the couple's child, asked for monthly permanent support of $10,000 from husband, who earned between $16,000 and $18,000 per month. Wife also asked that husband be ordered to pay both side's attorney fees. The trial court awarded her only $3,584 per month, based on a computer-generated report, and denied her fees.

Wife appealed, arguing the trial court's rulings were not supported by express findings on the factors required under Family Code sections 2030, 2032, and 4320.

Ordinarily, a losing party must follow a rigorous process of requesting findings and objecting to missing or insufficient findings. Wife did not follow that procedure here. No party requested a statement of decision. And as husband correctly argued on appeal, in the absence of a statement of decision, under the implied-findings doctrine the reviewing court presumes the trial court followed the law, weighed the required factors, and made all findings necessary to support the judgment.

And these implied findings concerning support and fee orders will be upheld unless the reviewing court finds the trial court abused its broad discretion.

The Third District declined to follow these presumptions, however, and held the trial court abused its discretion by following a computer-generated model rather than exercising independent judgment. Following In re Marriage of Schulze (1997) 60 Cal.App.4th 519, 525, even starting with a computer-generated figure "and then mak[ing] adjustments" falls short of the required independent findings required by section 4320, because "the ultimate order is not really the product of a truly independent exercise of judicial discretion." (Schulze, at pp. 526-527.)

Indeed, the permanent award was only $89 different from the computer-generated temporary order, leading the Court to conclude it could not indulge the fictional inference that the trial court made the independent findings required of it.

The Court held the same regarding the trial court's order denying wife's request for attorney fees under Family Code section 2030. Section 2030 requires explicit findings, which also were not forthcoming here. And the Court again declined to indulge the presumption they had been impliedly made, given the trial court's "equivocal" "mus[ing]" that wife "might prevail in a [section] 2030 argument," but that she "certainly would not prevail under a [section] 271 argument," which left unanswered "whether the court granted or denied wife's request for need-based fees, let alone whether and how it weighed the three required findings regarding reasonableness, disparity in access to funds, and husband's ability to pay for legal representation for both parties."

The upshot: While the statement of decision is normally requested by the losing party, the prevailing party also should consider requesting a statement of decision when necessary findings are missing.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at [email protected] or (714) 641-1232.

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 CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
Get “Not To Be Published,” a weekly digest of these articles, delivered directly to your inbox!

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality."

— Will Durant

"Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading. They cannot ask that a judgment afterwards obtained be set aside merely because their equilibrium was slightly disturbed by an unexpected motion."

Posz v. Burchell (1962) 209 Cal.App.2d 324, 334

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind."

— Sir Thomas More in Robert Bolt's A Man for All Seasons

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws."

— Plato (427-347 B.C.)

“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”

— James Madison, Federalist 62

"A judge is a law student who grades his own papers."

— H.L. Mencken

"So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, 'Buy spear from side or bear it,' that is, buy off the feud or fight it out."

— Roscoe Pound, An Introduction to the Philosophy of Law

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor."

Rubin v. Green (1993) 4 Cal.4th 1187

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody."

—T.H. White, The Once and Future King

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else."

— Hon. Sir Owen Dixon, Chief Justice of Australia

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly.


Copyright © 2024 Kowal Law Group
linkedin facebook pinterest youtube rss twitter instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter instagram