Written Declarations in California Dissolution Trials

In Elkins v. Superior Court (2007) 41 Cal.4th 1337, the California Supreme Court invalidated a local superior court rule and a trial scheduling order used in family court in Contra Costa County. That rule and order provided that in dissolution trials, the parties must present their cases by means of written declarations. Witness testimony under direct examination was not allowed except in "'unusual circumstances,'" although parties were permitted to cross-examine declarants upon request. In addition, the parties were required to establish in their pretrial declarations the admissibility of all exhibits they sought to introduce at trial. (Id. at pp. 1344, 1346-1347.) The husband's pretrial declaration in Elkins failed to establish the evidentiary foundation for all but two of his 36 exhibits; the trial court therefore excluded the remaining 34 exhibits. Without the exhibits, and without the ability to present his case or establish a foundation for his exhibits through oral testimony, the husband rested his case. The trial court then divided the marital property substantially in the manner requested by the wife. (Id. at pp. 1344-1345, 1347-1350.) The husband in Elkins filed a petition for writ of mandate challenging the local rule and trial scheduling order on the grounds that they were inconsistent with the guarantee of due process of law, and that they conflicted with various provisions of the Evidence Code and the Code of Civil Procedure. The respondent court countered that the promulgation of the rule and order came within its power to govern the proceedings before it, and that the rule and order were consistent with constitutional and statutory provisions. (Elkins, supra, 41 Cal.4th at pp. 1345, 1350.) The Supreme Court in Elkins concluded that, as applied to contested marital dissolution trials, the rule and order were inconsistent with various statutory provisions. It said: "Marital dissolution trials proceed under the same general rules of procedure that govern other civil trials. Written testimony in the form of a declaration constitutes hearsay and is subject to statutory provisions governing the introduction of such evidence. Our interpretation of the hearsay rule is consistent with various statutes affording litigants a 'day in court,' including the opportunity to present all relevant, competent evidence on material issues, ordinarily through the oral testimony of witnesses testifying in the presence of the trier of fact." (Elkins, supra, 41 Cal.4th at p. 1345.) The Supreme Court then concluded that the trial court abused its discretion by excluding most of the husband's evidence simply because he failed, prior to trial, to file a declaration establishing the admissibility of his trial evidence, and that the sanction of exclusion was disproportionate and inconsistent with the policy favoring determination of cases on their merits. (Id. at pp. 1363-1364.)