So You Want To Have A Hearing


In the not too distant past, your chance of holding an evidentiary hearing in Court was slim and none (better chance for none).


Why? Because of the rule set forth in a case called REIFLER (Reifler v. Super. Ct. (Reifler) (1974) 39 Cal.App.3d 479, 114 Cal.Rptr. 356). The Reifler case gave the Court authority to rule based on Declarations and other documents submitted by the parties. Many jurisdictions set forth Local Court Rules that placed even further limits on a party’s ability to present evidence, including live testimony in Court.


Along came Jeffrey Elkins, a man who tried to follow Local Court Rules when introducing evidence during a divorce trial dividing all the assets and debts of his Marriage. Mr. Elkins represented himself, and, according to the trial judge, didn’t do a very good job following Local Rules regarding presentation of evidence. As a result, most of the assets of the marriage were awarded to Mrs. Elkins.


Jeffrey appealed, and the California Supreme Court took umbrage with a trial judge who gave everything to wife because husband failed to follow Local Rules. The Court said “. . . efficiency is not an end in itself. Delay reduction and calendar management are required for a purpose: to promote the just resolution of cases on their merits. Accordingly, decisions about whether to grant a continuance or extend discovery ‘must be made in an atmosphere of substantial justice. When the two policies collide head-on, the strong public policy favoring disposition on the merits outweighs the competing policy favoring judicial efficiency.'” Elkins v. Super. Ct. (Elkins) (2007) 41 Cal.4th 1337, 63 Cal.Rptr.3d 483, 163 P.3d 160


Jeffrey received a new trial (at which he got most of his property back). But also, when the Supreme Court talks, the Legislature listens, and now we have a new statute, Family Code Section 217, which states:


“(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.”


So bring your witnesses and put them on the Stand, just make sure you comply with Fam.C §217(c)! (And even if you don’t have it ready at the time of the hearing, you can ask for a short continuance to submit the proper documents).

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