Reifler v. Superior Court
| Decision Date | 24 May 1974 |
| Citation | 114 Cal.Rptr. 356,39 Cal.App.3d 479 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Lisette Lou REIFLER, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent; Donald I. REIFLER, Real Party in Interest. Civ. 43678. |
Aaron L. Lincoff, Santa Monica, for petitioner.
John H. Larson, County Counsel, and Dwight V. Nelsen, Deputy County Counsel, Los Angeles, for respondent.
No appearance for real party in interest.
In this petition for writ of mandate, we consider: (1) the power of the trial court to require that issues arising in postjudgment proceedings in marital dissolution matters be submitted upon affidavits or declarations, 1 excluding testimonial evidence; and (2) the validity of an unwritten trial court 'policy' requiring that such a procedure be employed. We conclude that to the extent the postjudgment proceedings arise on motion as that term is defined in Code of Civil Procedure section 1003, the trial court is vested with discretion to exclude oral testimony and require submission upon declarations. We conclude also that the discretion is one which must be exercised by the trial judge and that a general court 'policy' may not be substituted for exercise of discretion.
The facts governing the proceedings at bench are established by the uncontroverted allegations of the petition for writ of mandate as amplified by the trial court file. The marriage of Petitioner (Wife) and Respondent (Husband) was dissolved by an interlocutory judgment of dissolution of marriage entered on April 17, 1972, a final judgment terminating marital status entered May 22, 1972, and a judgment 'upon reserved issues after judgment dissolving the status of marriage' entered March 1, 1973. The judgment awarded Wife spousal support of $700 per month and child support of $550 per month for each of two children. Thirty days later, Husband instituted an order to show cause seeking to terminate spousal support and to reduce child support. The court reduced Husband's spousal support obligation to $400 per month and his child support obligation to $200 per month per child.
On August 16, 1973, Husband again initiated an order to show cause seeking to be relieved of spousal support and to reduce his child support obligation to $100 per month per child. On September 18, 1973, Husband filed and served a notice of 'Motion To Transfer A Liquid Asset (Cash) To (Wife) in Lieu of Support for the Period Sept. 15th, 1973--Nov. 30th.' That motion sought a court order requiring that a sum due Husband on liquidation of a partnership held in trust by counsel be transferred to Wife in payment of Husband's obligations per the judgment as modified. Wife filed declarations in opposition to the order to show cause and notice of motion. She countered further with a notice of motion to strike portions of Husband's declaration, a notice of motion for an order requiring Husband to pay attorney's fees and costs, an order to show cause seeking an increase in spousal and child support, a notice of motion for the appointment of a receiver and to require Husband to post security to pay counsel fees directly to Wife's attorney and to pay costs, and an order to show cause seeking to hold Husband in contempt for failure to comply with the judgment.
After several continuances, the group of motions and orders to show cause were set for hearing on January 14, 1974. Counsel for Wife estimated that the hearings would consume approximately three days. The trial judge responded: Counsel for Wife objected to the procedure, stating that it was necessary for him to produce testimony to establish that Husband had secreted assets and also necessary to produce oral testimony on the OSC re Husband's alleged contempt. The trial court reaffirmed its ruling inviting Wife's counsel to test the ruling by an application for writ of mandate to this court. Counsel accepted the invitation and filed his petition with us. We issued our alternative writ of mandate.
In her petition, Wife contends that: (1) hearing of the pending matters on declaration is improper because they involve controverted issues of fact which are not preliminary or ancillary to 'the real controversy'; and (2) the trial court jurisdictionally erred in failing to exercise a discretion granted it by statute to determine whether oral testimony should be received or the matters submitted on declaration.
With the exception of the order to show cause re contempt, the trial court was vested with discretion to allow or exclude oral testimony in amplification or impeachment of the declarations filed by the parties.
Code of Civil Procedure section 2009 states: 'An affidavit may be used to verify a pleading . . ., to prove the service of a summons, notice, or other paper in an action or special proceeding, to obtain a provisional remedy . . ., or upon a motion. . . .' Section 2009 is construed as empowering the trial court to determine motions upon declarations alone and to allow the court discretion to refuse oral testimony. (Beckett v. Kaynar Mfg. Co., Inc., 49 Cal.2d 695, 698, n. 3, 321 P.2d 749; Crocker Citizens Nat. Bank v. Knapp, 251 Cal.App.2d 875, 880, 60 Cal.Rptr. 66; Skouland v. Skouland, 201 Cal.App.2d 677, 678, 20 Cal.Rptr. 185; Pari-Mutuel etc. Guild v. L. A. Turf Club, 169 Cal.App.2d 571, 582, 337 P.2d 575.)
A motion is defined in Code of Civil Procedure section 1003. That section states: 'An order to show cause is a notice of motion and a citation to the party to appear at a stated time and place to show cause why a motion should not be granted.' (Difani v. Riverside County Oil Co., 201 Cal. 210, 213--214, 256 P. 210, 212, cited with approval in Green v. Gordon, 39 Cal.2d 230, 232, 246 P.2d 38.)
Here, with the exception of the order to show cause re contempt issued at the instance of Wife, all of the proceedings before the trial court were directed toward obtaining a written direction from the trial judge not included in a judgment. Some, such as Wife's motion to strike portions of declarations, were purely procedural. Others, such as those seeking modification of the judgment and attorney's fees and costs, pertained to directions after judgment and not included within it. Wife's application for appointment of a receiver not only sought such a...
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