Testimony at a Hearing
In re Marriage of George and Deamon is a procedural case.
The parties to this case settled their divorce in June of 2017. The terms of the settlement were put on the record. The court informed the parties that the settlement was enforceable under the Code of Civil Procedure Section 664.6. The husband’s attorney was ordered to prepare a formal judgment. Throughout the proceedings the husband did not appear in person. He lives in Japan and would either appear by phone or his attorney would appear on his behalf.
The wife refused to sign the formal judgment prepared by the husband’s attorney. In July of 2017, the husband filed a request for entry of judgment under CCP 664.6. He also filed a motion for sanctions under Family Code Section 271 based on the wife’s refusal to sign the judgment. At the hearing, the wife renewed her objection that the husband did not appear in person. The court ordered the wife to pay sanctions. The wife appealed.
The court of appeal upheld the order. It stated that the wife did not follow proper procedures in obtaining her husbands’ appearance. The first thing she should have done was to file and serve her husband with a notice to appear under the Code of Civil Procedure Section 1987(b). In addition, she did not complete the requirements of Family Code section 217 which requires the parties to submit a witness list. At the hearing, the wife could have asked the court for a continuance so that she could file her witness list.
When live testimony is not presented for a motion, the Code of Civil Procedure Section 2009 controls. Section 2009 allows a motion hearing to be decided on declarations despite the hearsay rule.
Code of Civil Procedure Section 664.6:
If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.
Code of Civil Procedure Section 1987(b):
In the case of the production of a party to the record of any civil action or proceeding or of a person for whose immediate benefit an action or proceeding is prosecuted or defended or of anyone who is an officer, director, or managing agent of any such party or person, the service of a subpoena upon any such witness is not required if written notice requesting the witness to attend before a court, or at a trial of an issue therein, with the time and place thereof, is served upon the attorney of that party or person. The notice shall be served at least 10 days before the time required for attendance unless the court prescribes a shorter time. If entitled thereto, the witness, upon demand, shall be paid witness fees and mileage before being required to testify. The giving of the notice shall have the same effect as service of a subpoena on the witness, and the parties shall have those rights and the court may make those orders, including the imposition of sanctions, as in the case of a subpoena for attendance before the court.
Code of Civil Procedure Section 2009:
An affidavit may be used to verify a pleading or a paper in a special proceeding, to prove the service of a summons, notice, or other paper in an action or special proceeding, to obtain a provisional remedy, the examination of a witness, or a stay of proceedings, and in uncontested proceedings to establish a record of birth, or upon a motion, and in any other case expressly permitted by statute.
Family Code Section 217:
(a) At a hearing on any order to show cause or notice of motion brought pursuant to this code, absent a stipulation of the parties or a finding of good cause pursuant to subdivision (b), the court shall receive any live, competent testimony that is relevant and within the scope of the hearing and the court may ask questions of the parties.
(b) In appropriate cases, a court may make a finding of good cause to refuse to receive live testimony and shall state its reasons for the finding on the record or in writing. The Judicial Council shall, by January 1, 2012, adopt a statewide rule of court regarding the factors a court shall consider in making a finding of good cause.
(c) A party seeking to present live testimony from witnesses other than the parties shall, prior to the hearing, file and serve a witness list with a brief description of the anticipated testimony. If the witness list is not served prior to the hearing, the court may, on request, grant a brief continuance and may make appropriate temporary orders pending the continued hearing.
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Although the posting of this information can be considered free legal advice for a divorce in Orange County, it does not address other factors which may play a significant role in a particular dissolution. Circumstances in your divorce may alter the results in your dissolution.
Please note that this legal advice does not establish a family law attorney-client relationship. This is a legal advertisement for Treviño Law, Inc.