Family Law Litigation After Shimkus: Before Submitting at a Hearing, Always Move to Admit Your Declarations

• Publication year: 2017
• Author: By Lauri Kritt Martin

Family Law Litigation After Shimkus: Before Submitting at a Hearing, Always Move to Admit Your Declarations

By Lauri Kritt Martin

Since Reifler v. Superior Court (1974) 39 Cal.App.3d 479, family law attorneys in California have long relied on ubiquitous language in family law declarations stating that the declaration is offered in lieu of personal testimony under Sections 2009 and 2015.5 of the Code of Civil Procedure and California Rule of Court 5.111. However, in In re Marriage of Shimkus (2016) 244 Cal.App.4th 1262, the Court of Appeal signaled that such practices should no longer be used as a short cut for admission of evidence.

[Page 30]

Reifler held that the trial court had discretion to exclude oral testimony for all post-judgment matters except for an order to show cause re contempt, and that the local policy of excluding oral testimony was acceptable, as long as it was not a substitute for the court's discretion to admit oral testimony if appropriate. This ruling came about in large part due to the need to expedite family law hearings in Los Angeles, and shorten trial court calendars. One result of Reifler was that family law attorneys focused more on the drafting of their declarations, and placed less emphasis and importance on their trial skills and introduction of evidence at the actual hearing.

About 33 years later, the pendulum swung the other way. In Elkins v. Superior Court (2007) 41 Cal.4th 1337, the Supreme Court found that the goal of efficiently moving family law cases through the trial courts should not be allowed to prevent parties from presenting oral testimony, since the value of the testimony was greater than the perceived efficiency of moving matters through the trial court. Elkins held that "[a]ll relevant evidence is admissible, including evidence bearing on the issue of witness credibility (Evid. Code, §§ 2210, 351), and the oral testimony of witnesses supplies valuable evidence relevant to credibility, a critical issue in many marital dissolution trials. Permitting oral testimony rather than relying upon written declarations also is consistent with the historically and statutorily accepted practice of conducting trial by means of the oral testimony of witnesses given in the presence of the trier of fact. ... [¶¶] Oral testimony of witnesses given in the presence of the trier of fact is valued for its probative worth on the issue of credibility, because such testimony affords the trier of fact an opportunity to observe the...