In re Marriage of Binette

Filed 6/29/18
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re the Marriage of WILLIAM and
DIANE BINETTE.

WILLIAM BINETTE,
E068010
Appellant,
(Super.Ct.No. HED1500698)
v.
OPINION
DIANE BINETTE,

Respondent.

APPEAL from the Superior Court of Riverside County. James T. Warren, Judge.

(Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art.

VI, § 6 of the Cal. Const.) Affirmed.

Westover Law Group, Andrew L. Westover and Morgan Cahill-Marsland for

Appellant.

Julie M. Clark for Respondent.

In this family law matter between William Binette (husband) and Diane Binette

(wife), husband appeals from an order setting aside a default judgment that incorporated a

marital settlement agreement (MSA). He contends the trial court erred by considering

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evidence not presented, submitted, or admitted at the hearing, in violation of Family

Code1 section 217. He further asserts that the court erroneously relied upon an incorrect

legal standard when it found the failure to complete preliminary and final disclosures

provided sufficient grounds to vacate the judgment. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Husband and wife were married on February 14, 2002, and they separated on

January 1, 2015. On July 21, 2015, husband petitioned the court for legal separation and

filed a preliminary declaration of disclosure, which included (1) his separate property

declaration (Form FL-160); (2) his community and quasi-community property declaration

(Forms FL-160 & FL-161); and (3) his income and expense declaration (Form FL-150).

Nine days later, a notice and acknowledgment of receipt of the petition and husband’s

preliminary disclosures was filed; however, wife did not respond to the petition.

On August 24, 2015, the parties filed a stipulation and waiver of final declaration

of disclosure (stipulation). According to the stipulation, the parties agreed that they had

complied with Family Code sections 2102 and 2104; that they completed and exchanged

a current income and expense declaration; that they entered into the stipulation

knowingly, intelligently, and voluntarily; and that if they failed to comply with the legal

disclosure obligations, “the court will set aside the judgment.” Husband’s attorney also

caused to be filed a declaration stating that service of wife’s preliminary declaration of

disclosure was being filed simultaneously.

1 All further statutory references are to the Family Code.
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 On September 25, 2015, husband requested entry of default. He did not attach

either a completed income and expense declaration or financial statement because,

according to him, there were no changes since the previous filing and any issues were

resolved by the MSA. On November 10, 2015, a judgment of legal separation was

entered and the property was divided as set forth in the MSA, attached to the judgment.

On July 12, 2016, wife filed a request for order to set aside the default judgment

and MSA (Fam. Code, § 2122, subds. (d) & (e)), and to file a response and request for

dissolution of marriage (RFO). In a supporting declaration, wife stated as follows: She

received husband’s documents the same day he “personally drove [her] to a notary,”

where he demanded that she sign them “in his presence.” Husband also demanded that

wife sign the MSA on July 23, 2015, “the same day that he handed [her] his Declaration

of Disclosure . . . .” Wife pointed out that neither husband’s property declaration nor his

income and expense declaration contained any documents to support them, “so [she] had

to rely on [his] representations of the value of the assets.” Wife opined that “husband

was directing [her] to sign documents that were lies.” She declared that “[a]ll documents

that [she] signed in the Legal Separation case were prepared by [her] husband and/or his

attorney.” She denied having any opportunity to consult with an attorney “outside of

[her] husband’s presence about whether [she] should agree to [his] demands that [she]

waive spousal support after [their] long-term marriage, or any of the other terms of the

MSA.” Wife was also denied the opportunity to consult with a tax professional. When

she filed taxes in April 2016, she “learned that the terms of the MSA converted the

equalization payments from a tax-free equalization payment into a payment that is

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taxable to me and tax-deductible to [husband].” Because she suffers from depression, her

ability to act in her own best interest was impaired. Wife also filed a memorandum of

points and authorities and an income and expense declaration. And, she lodged the

declaration of her primary care physician who confirmed that she suffers from depression

that is “associated with significant cognitive impairment.”

In February 2017, husband opposed wife’s RFO, filing an income and expense

declaration with a copy of his 2016 tax returns, a memorandum of points and authorities,

and a responsive declaration. In his declaration, husband asserted that “90% of the

terms” of their settlement were made by wife. Husband challenged wife’s need for

spousal support. He declared that “[a]ll appropriate disclosure documents were

exchanged; she had more than enough time to review the disclosure documents; our

spousal support order was fully negotiated; she had the ability to get her own attorney

and/or tax expert; she did not suffer from a cognitive impairment”; and “she insisted on

driving us to the notary.” According to husband, wife did not want spousal support

because she “was actually in fear of having to pay [husband] . . . .”

On February 9, 2017, wife replied to husband’s opposition, reiterating her request

to vacate the judgment due to husband’s failure to disclose relevant information, mistake

of fact as to both parties, and the complication of wife’s depression. In support of her

reply, wife lodged husband’s responses to her discovery requests. According to the

documents lodged, husband objected to most of wife’s discovery requests, agreeing to

respond to specified discovery only if the judgment is set aside.

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 The matter was heard on February 16, 2017, and on March 9, 2017, the trial court

granted wife’s RFO on the grounds of mistake of fact.

II. DISCUSSION

A. Applicable Legal Principles.

“Marriage creates a fiduciary relationship between spouses. [Citations.] The

confidential relationship between spouses ‘imposes a duty of the highest good faith and

fair dealing on each spouse . . . .’ [Citation.] As part of these obligations, each spouse is

required to provide the other spouse with access to all books regarding transactions for

purposes of inspection and copying [citation], and rendering upon request ‘true and full

information of all things affecting any transaction which concerns the community

property.’ [Citation.] Additionally, spouses must make full and accurate disclosure and

account for separate and community property. [Citations.] The duty of disclosure

‘includes the obligation to make full disclosure to the other spouse of all material facts

and information regarding the existence, characterization, and valuation of all assets in

which the community has or may have an interest . . . .’ [Citation.]

“The parties also have ‘a continuing duty to update and augment that disclosure to

the extent there have been any material changes so that at the time the parties enter into

an agreement for the resolution of any of these issues . . . each party will have as full and

complete knowledge of the relevant underlying facts as is reasonably possible . . . .’

[Citation.] The final declarations of disclosure must include, among other items, ‘[a]ll

material facts and information regarding the valuation of all assets that are contended to

be community property or in which it is contended the community has an interest.’

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[Citation.]” (In re Marriage of Brewer & Federici (2001) 93 Cal.App.4th 1334, 1342-

1344, fns. omitted.)

Section 2122 governs motions to set aside judgments in dissolution proceedings.

Under this statute, there are six grounds to set aside a judgment: actual fraud, perjury,

duress, mental incapacity, mistake, or failure to comply with the disclosure requirements.

(§ 2122, subds. (a)-(f).) “To set aside a stipulated or uncontested judgment based upon

mistake, the mistake may be ‘either mutual or unilateral, whether mistake of law or

mistake of fact.’ [Citation.]” (In re Marriage of Brewer & Federici, supra, 93

Cal.App.4th at pp. 1344-1345.) “In addition to establishing mistake, the party seeking

relief must also establish that ‘the facts alleged as the grounds for relief materially

affected the original outcome and that the moving party would materially benefit from

the granting of the relief.’ [Citation.]” (Id. at p. 1345.)

An order granting a motion to set aside a judgment under section 2122 is reviewed

under an abuse of discretion standard. (In re Marriage of Rosevear (1998) 65

Cal.App.4th 673, 682-683.)

B. The Trial Court Did Not Violate Section 217.

Husband contends the trial court erred by failing to receive live testimony in

contravention of section 217. He faults the court for allowing wife to “‘rest on the

pleadings,’” instead of presenting evidence, and he argues that while this “may have been

an acceptable practice prior to the passage of [section] 217 . . . it does not accord with the

clear mandate of [In re Marriage of Shimkus (2016) 244 Cal.App.4th 1262 (Shimkus)].”

We conclude the trial court did not violate section 217.

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 For decades, practitioners have enjoyed the informality and flexibility afforded in

marital dissolution proceedings. Nonetheless, these proceedings are governed by the

same statutory rules of evidence and procedure applicable in other civil actions. (Elkins

v. Superior Court (2007) 41 Cal.4th 1337, 1354 (Elkins); § 210 [“the rules of practice and

procedure applicable to civil actions generally . . . apply to, and constitute the rules of

practice and procedure in, proceedings under [the Family Code]”].)

In Elkins, the Supreme Court reiterated the supremacy of statutory rules of

evidence and procedure when it struck a local court rule that called for the admission of

declarations in lieu of direct testimony at trial. The Supreme Court found that the local

court rule was inconsistent with the well-established rule that “declarations constitute

hearsay and are inadmissible at trial, subject to specific statutory exceptions, unless the

parties stipulate to the admission of the declarations or fail to enter a hearsay objection.

[Citations.]” (Elkins, supra, 41 Cal.4th at p. 1354.) One of those statutory exceptions to

the hearsay rule is Code of Civil Procedure section 2009, which authorizes affidavits or

declarations in certain motion matters. (Elkins, supra, at p. 1355.) However, this

“‘section only applies to matters of procedure,—matters collateral, ancillary, or incidental

to an action or proceeding,—and has no relation to proof of facts the existence of which

are made issues in the case, and which it is necessary to establish to sustain a cause of

action.’ [Citations.]” (Ibid.) The Supreme Court concluded that “consistent with the

traditional concept of a trial as reflected in provisions of the Evidence Code and the Code

of Civil Procedure . . . [the local rule] calling for the admission and use of declarations at

trial conflict[s] with the hearsay rule.” (Id. at pp. 1359-1360.) It therefore held that

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courts may not prohibit oral testimony or require the parties to present their case at trial

by written declarations. (Id. at pp. 1355-1357.)

In response to Elkins, the California Legislature enacted section 217 (Stats. 2010,

ch. 352, § 3) to alleviate the harsh effects stemming from the common practice of family

law courts seeking to expedite family law proceedings by requiring litigants to rely

primarily on written declarations in lieu of introducing live testimony. (Sen. Com. on

Judiciary, com. on Assem. Bill No. 939 (2009-2020 Reg. Sess.) Sept. 27, 2010.) Section

217, in relevant part, provides: “(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.”2 The purpose of section 217 is to encourage reliance on live, rather than

2 The Judicial Council adopted California Rules of Court, rule 5.113 which, in
relevant part, provides:
“(a) Purpose
“Under Family Code section 217, at a hearing on any request for order brought
under the Family Code, absent a stipulation of the parties or a finding of good cause
under (b), the court must receive any live, competent, and admissible testimony that is
relevant and within the scope of the hearing.
“(b) Factors
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written, testimony in family law proceedings. (Sen. Com. on Judiciary, com. on Assem.

Bill No. 939 (2009-2020 Reg. Sess.) Sept. 27, 2010.)

The February 16, 2017, proceeding at issue in the present case did not involve a

contested marital dissolution trial, as was the issue in Elkins. It involved a hearing that

falls under section 217, which gives the parties the right to present live testimony instead

of relying on declarations. However, section 217 does not mandate live testimony when

the parties indicate their desire to rely solely on declarations. Rather, the right to live

testimony may be forfeited. (Mendoza v. Ramos (2010) 182 Cal.App.4th 680, 687

(Mendoza).) The Mendoza case involved a child support action, in which the father

argued that the trial court improperly denied him the right to cross-examine the mother at

a hearing on his petition. (Id. at pp. 682-683, 684.) The court noted that while Elkins

“In addition to the rules of evidence, a court must consider the following factors in
making a finding of good cause to refuse to receive live testimony under Family Code
section 217:
“(1) Whether a substantive matter is at issue—such as child custody, visitation
(parenting time), parentage, child support, spousal support, requests for restraining
orders, or the characterization, division, or temporary use and control of the property or
debt of the parties;
“(2) Whether material facts are in controversy;
“(3) Whether live testimony is necessary for the court to assess the credibility of
the parties or other witnesses;
“(4) The right of the parties to question anyone submitting reports or other
information to the court;
“(5) Whether a party offering testimony from a non-party has complied with
Family Code section 217(c); and
“(6) Any other factor that is just and equitable.
“(c) Findings
“If the court makes a finding of good cause to exclude live testimony, it must state
its reasons on the record or in writing. The court is required to state only those factors on
which the finding of good cause is based.” (Cal. Rules of Court, rule 5.113 (a), (b), (c),
bolding omitted.)
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“confirms the rights of litigants in family law matters to the protections afforded in other

civil proceedings,” neither party “requested live testimony at the hearing, nor did [the

father] indicate to the court that he wished to have the opportunity to examine [the

mother]. Instead, the parties relied on their filings, and on the arguments of counsel.”

(Mendoza, supra, at p. 687.) Thus, because the father failed to request testimony, the

court concluded he forfeited his right to obtain relief. (Ibid.) This is because issues not

raised in the trial court may not be raised for the first time on appeal. (Ibid.)

In the present case, neither party presented live testimony at the hearing. The

court began the hearing by confirming that both husband and wife had been sworn in. In

response to the court’s inquiry of a time estimate, wife’s counsel replied: “If the Court

could give us a preliminary—an indication of the Court’s intended, I may just rest on the

pleadings.” Husband’s counsel replied, “Probably 15 minutes—ten, 15 minutes, if it’s

just going to be attorney argument.” The following exchange then occurred:

“THE COURT: Nobody is presenting any testimony?

“[HUSBAND’S COUNSEL]: I believe that testimony may be necessary

depending on the tentative of the Court, but our position is . . . that this judgment is

ironclad.

“THE COURT: I’m sorry?

“[HUSBAND’S COUNSEL]: Our position—

“THE COURT: I know what your position is. I’m trying to get a time

estimate . . . I know very well what your position is. I’ve read the paperwork. In fact, I

guess I should [recite] on the record what I read.” The court then recited each of the

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documents it had reviewed and considered.3 Wife’s counsel observed, “I believe the

Court has recited every document that’s been filed in this case since I filed our initial

documents in July.”

The court invited wife’s counsel to proceed:

“[WIFE’S COUNSEL]: Thank you, Your Honor. I—in my belief, this has been

adequately pled supported by the testimony of [wife], and I am willing to rest on the

pleadings, sir.

“THE COURT: Thank you. This is a very important issue, obviously, involving

basically all of the assets as well as spousal support, and so it’s a very important issue,

and I want you to understand that. [Wife’s counsel], anything else?

“[WIFE’S COUNSEL]: If the Court has any questions he would like to direct my

client, I would be open to that as well.

“THE COURT: Thank you. [Husband’s counsel]?

“[HUSBAND’S COUNSEL]: Yes, Your Honor. As you can see from the

judgment, it’s extensive. It has all the necessary waivers in it. She waived disclosures

3 “I have read a motion [to set aside judgment and MSA, etc.] that was filed on
July 12th, 2016; I have read—I have reviewed an FL160 that was filed July 21, 2015 . . .
I think actually it was attached to the motion. I have reviewed points and authorities that
were filed August 1, 2016 by . . . [¶] . . . [¶] —by [wife]; I have reviewed an Income and
Expense Declaration filed September 21, 2016 by [wife]; I have reviewed an Income and
Expense Declaration filed by [wife], February 3rd, 2017; I have reviewed a responsive
declaration filed February 3rd, 2017; I have reviewed a memorandum of points and
authorities filed February 3rd, 2017; I have reviewed an Income and Expense Declaration
filed by [husband], February 3rd, 2017; I have reviewed respondent’s points and
authorities in reply filed by [wife], February 9th, 2017; and I have reviewed a notice of
lodgment of evidence in support of respondent’s points and authorities in reply filed
February 9th, 2017, by [wife].”
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regarding value, she waived her right to seek Counsel, she waived her right to further

discovery. There’s acknowledgments contained within the judgment that she is fully and

completely informed, it’s voluntary, free from fraud, undue influence, coercion, or

duress. . . .” Husband’s counsel continued, contesting wife’s claims and referring to

documents that he had filed with the court. Regarding wife’s claim that she suffered

from depression, husband’s counsel argued that her physician’s declaration is hearsay and

assumes facts not in evidence. Otherwise, counsel submitted. Husband’s counsel never

objected to the court considering the documents filed. Instead, his argument repeatedly

referenced the documents filed on husband’s behalf, and observed that husband “disputes

[wife’s] facts in his declaration.”4 Husband’s counsel further offered that husband is able

to testify about the parties’ actions regarding the judgment and MSA.

Following argument, the trial court took the matter under submission. Wife’s

request was granted and the judgment was set aside.

According to husband, absent live testimony there was no evidence presented to

support the trial court’s ruling. Not so. While section 217 requires the court to receive

“relevant” testimony that is “within the scope of the hearing” when offered by the parties

(§ 217, subd. (a)), it does not foreclose the parties from submitting evidence through

other means, such as declarations, pleadings, etc. (§ 210 [“the rules of practice and

procedure applicable to civil actions generally . . . apply to, and constitute the rules of

4 Husband contends that “[b]y relying on Wife’s declaration, without it being
offered at the hearing, allowing objections, or subjecting Wife to cross examination, the
trial court effectively denied Husband the basic right of due process.” However,
husband’s reliance on his own declaration and other filed documents at the hearing belies
this claim; husband is disingenuous to fault the trial court for doing the same that he did.
12
practice and procedure in, proceedings under this [Family] code.”]; Code Civ. Proc.,

§ 2009 [“An affidavit may be used . . . upon a motion.”].) If husband wanted to testify or

examine wife, he could have informed the court of his intent to do so. He did not.

Rather, he stated: “I believe that testimony may be necessary depending on the tentative

of the Court, but our position is . . . that this judgment is ironclad.” The court responded

by informing the parties of each document it had read and reviewed. Husband never

indicated that the contingency he anticipated—that live testimony is necessary—had

occurred, nor did he explicitly request to present live testimony.

Nonetheless, citing Shimkus, supra, 244 Cal.App.4th at pages 1270 through 1271,

husband maintains that the trial court erred in relying on evidence in wife’s declarations

when they were never admitted into evidence. In Shimkus, the husband moved for a

postjudgment order terminating spousal support. (Id. at p. 1266.) Both parties submitted

declarations. At the start of the hearing, the wife sought a ruling on her objections to the

husband’s declarations, but the trial court replied that “it would take oral testimony and

would rule on any objections made when questions were asked.” (Ibid.) Following

testimony, and during closing argument, the wife referenced her declaration as containing

specific evidence; however, the court stated “the evidence in the hearing was the

testimony and documents admitted, and ‘[n]othing else.’” (Id. at p. 1267.) The court

took the matter under submission and later granted the husband’s motion. Regarding the

declarations, the court characterized them as “‘un-received evidence,’” ruling that “the

only evidence was that presented by oral testimony and exhibits introduced into

evidence.” (Ibid.)

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 On appeal, the wife challenged the trial court’s failure to “automatically” admit

the declarations. (Shimkus, supra, 244 Cal.App.4th at pp. 1269-1270.) Rejecting her

challenge, our colleagues in Division Three held that section 217 requires live testimony,

“except under limited circumstances, i.e., the parties’ stipulation or good cause.” (Id. at

p. 1270.) In support of its holding, the appellate court relied on the trial court’s clear

direction to the parties that it would be “hearing the testimony orally . . . .” (Ibid.) Under

such command, the parties needed to present live testimony, seek a stipulation to allow

the admission of the declarations, or seek to have the declarations admitted into evidence.

(Id. at pp. 1270-1271.) Because none of these actions were taken, the appellate court

found that the “declarations were not automatically in evidence nor did the [trial] court

err in not admitting them under the circumstances of this case.” (Id. at p. 1271.)

The facts in Shimkus are distinguishable from those presented in this case. Here,

the trial court never limited receipt of evidence to live testimony. Rather, it asked the

parties whether they would be presenting live testimony. In response, they indicated that

testimony may be necessary depending on the court’s position, otherwise, the matter was

adequately pled. When the court listed each of the documents it had reviewed, husband

did not raise any evidentiary objection. Rather, he relied upon the documents in support

of his argument. His actions indicate an implicit agreement between the parties to rely on

the documents submitted, unless the court directed otherwise.

Likewise, husband has not argued that any objection to the alleged failure to

comply with section 217 would have been futile. Thus, as in Mendoza, supra,

182 Cal.App.4th 680, 687, husband has forfeited his right to raise these issues on appeal.

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“It is a well-recognized proposition that ‘[a] person is free to waive any or all procedures

required and designed to safeguard fundamental rights’ . . . . [Citation.] Such waiver

may be express, i.e., by stipulation of the parties, or implied. [Citation.] It is also a

fundamental principle of appellate review that objections must be raised in the trial court

to preserve questions for review. Appellate courts will not consider objections that were

not presented to the trial court. [Citation.]” (In re Marriage of S. (1985) 171 Cal.App.3d

738, 745; see also In re the Marriage of Kerry (1984) 158 Cal.App.3d 456, 466 [even if

affidavit in support of motion is objectionable, failure to object “waives the defects, and

the affidavit becomes competent evidence”].) It follows that husband’s failure to object

to the procedures employed by the trial court impliedly waived any objection. He

therefore has failed to preserve any objection he may have had for review on appeal.

On March 26, 2018, Husband notified this court about new legal authority that he

is relying upon to support his argument: In re Marriage of Swain (Mar. 26, 2018, No.

B284468) __ Cal.App.5th __ [2018 Cal.App. LEXIS 246] (Swain). In Swain, the

husband appealed from a postjudgment order denying his motion to terminate spousal

support. The wife never filed any opposition to the motion, nor did she appear at the

hearing. Rather, she filed an income and expense declaration, but failed to serve it on the

husband. (Id. at pp. 3-4.) At the hearing, the husband objected to the wife’s declaration,

raising his due process rights and his right to cross-examine her. (Id. at p. 4.) He further

pointed out that the wife “was ‘not here to ask to put [her declaration] into evidence.’”

(Ibid.) Upon inquiry, the trial court stated that the wife’s declaration was filed, but that

15
the court “‘wasn’t going to look at it.’” (Id. at p. 5.) Relying on the wife’s declaration,

the court denied the husband’s motion. (Id. at pp. 5-7.)

On appeal, the appellate court reversed, finding that the trial court erred in relying

on wife’s declaration. (Swain, supra, at pp. 19-21.) The appellate court considered the

legislative history of section 217, and the applicability of Code of Civil Procedure

section 2009 in family law proceedings. (Swain, supra, at pp. 11-17.) It found that

“none of the published cases interpreting section 217 has squarely decided that section

217 completely abrogated the hearsay exception in Code of Civil Procedure section 2009

for substantive family law motions.” (Id. at p. 17.) Addressing the issue as a matter of

first impression, the Swain court concluded that “the hearsay exception in Code of Civil

Procedure section 2009 does not apply to a motion to modify a family law judgment

where . . . the opposing party seeks to exclude the declaration on the ground that he or

she is unable to cross-examine the declarant. In that situation, the opposing party’s

objection not only seeks to exclude hearsay evidence, but also amounts to an assertion of

the party’s right under section 217 to ‘live, competent testimony that is relevant and

within the scope of the hearing.’ [Citation].” (Id. at pp. 17-18.) However, the Swain

court did “not answer the general question whether section 217 makes written

declarations submitted in connection with family law motions subject to the hearsay rule

in every case.” (Swain, supra, at p. 17.)

While we concur in the Swain court’s analysis of section 217, Swain is

distinguishable from this case on its facts. In Swain, the husband objected to the wife’s

declaration and sought to cross-examine her. Here, in contrast, husband never objected to

16
wife’s documents, nor did he make any unqualified request to cross-examine her on her

declaration. Rather, husband’s only request for live testimony was phrased as contingent

upon the trial court’s ruling, and never renewed. Nonetheless, husband argued the issues

based on the documents before the court. Because husband led the trial court to believe

that it could, and should, consider the documents before it without the need for live

testimony, his claim of error, criticizing the court for doing so, is rejected.

Assuming, without deciding, that the court’s actions constituted a refusal to

receive live testimony, we conclude that the court made a sufficient finding of good cause

under the circumstances of this case. (§ 217, subd. (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.”].) As set forth above, the trial court

began by acknowledging that a substantive matter (spousal support) was at issue and that

the parties were entitled to question anyone submitting reports or other information to the

court. (Cal. Rules of Court, rule 5.113(b)(1) and (4).) The court’s lengthy recitation of

the numerous documents that it had reviewed in preparation for the hearing notified the

parties that the court was well-informed as to the relevant events and the parties’

positions. The court’s words that it knew “very well what [husband’s] position is,” it had

“read the paperwork,” and it had “reviewed” the documents filed with the court, signal

that the court was familiar with the facts and the arguments. Implicit in the court’s words

is a determination that the material facts were not in controversy (rule 5.113(b)(2)), and

that live testimony was not necessary for the court to assess the parties’ credibility

(rule 5.113(b)(3)). The court was not required to set forth its conclusion as to each of the

17
factors listed in rule 5.113(b); it was required to state only those facts upon which the

finding of good cause was based. (Cal. Rules of Court, rule 5.113(c).) The court’s

confirmation that it had thoroughly read the record in the case, along with the absence of

any demand for live testimony, sufficiently indicates that it considered the pertinent

factors and found that material facts were not in controversy and live testimony was

unnecessary. If husband disagreed with the court’s assessment, he should have stated his

position on the record and requested the opportunity to present live testimony as

authorized by section 217. Having failed to do so, the trial court did not err in allowing

wife to “‘rest on the pleadings’” instead of presenting evidence.

C. The Trial Court Did Not Apply an Incorrect Legal Standard in Setting

Aside the Judgment.

In deciding to set aside the judgment, the trial court found that husband failed to

complete the preliminary and final disclosures, as evidenced by the following: (1) there

were no supporting documents attached to the preliminary disclosure; (2) the stipulation

was prepared by husband’s attorney; (3) wife never actually exchanged any documents

with husband; (4) husband was unable to produce copies of the documents that support

the preliminary disclosure; and (5) husband has over $400,000 in cash and checking

accounts that was not disclosed in his income and expense declaration. Husband asserts

that the trial court erroneously relied upon an incorrect legal standard when finding the

failure to complete preliminary and final disclosures provided sufficient grounds to

vacate the judgment.

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 “The Family Code requires the parties to a dissolution proceeding to serve on each

other a preliminary, sworn declaration, on forms prescribed by the Judicial Council,

identifying all assets and liabilities. (Fam. Code, § 2104, subds. (a) & (c).) Similarly,

before the parties to a dissolution proceeding enter into an agreement for the resolution of

property issues, or before any trial, each must serve on the other ‘a final declaration of

disclosure and a current income and expense declaration, executed under penalty of

perjury on a form prescribed by the Judicial Council . . . .’ (Fam. Code, § 2105,

subd. (a).) These mandatory statutory requirements cannot be waived, except in strict

compliance with provisions of the statute. [Citation.]” (In re Marriage of Burkle (2006)

139 Cal.App.4th 712, 745-746, fns. omitted; see In re Marriage of Fell (1997) 55

Cal.App.4th 1058, 1060, 1064-1066 [affirming a judgment setting aside an original

judgment of dissolution and marital settlement agreement, based upon an impermissible

waiver of the mandatory exchange of disclosure declarations at the time of dissolution].)

Section 2105, subdivision (d), which permits such waiver, still requires that “[b]oth

parties have complied with Section 2104 and the preliminary declarations of disclosure

have been completed and exchanged” (§ 2105, subd. (d)(1)), and that “[t]he waiver is

knowingly, intelligently, and voluntarily entered into by each of the parties.” (Id., subd.

(d)(4).)

Here, husband prepared the necessary preliminary declarations of disclosure;

however, he failed to provide the supporting documentation. (§ 2104, subd. (a).) Wife

never completed or exchanged any declarations of disclosure, despite executing the

stipulation stating that she had done so. Given the lack of compliance with the statutory

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requirements, the stipulation was insufficient to act as a waiver of the final disclosure.

The trial court therefore correctly concluded that there had been a mistake of fact by the

parties regarding whether the statutory requirements had been satisfied, and properly

vacated the judgment on that basis.

III. DISPOSITION

The order is affirmed. Wife is awarded her costs on appeal.

CERTIFIED FOR PUBLICATION

RAMIREZ
P. J.
We concur:

MILLER
J.

FIELDS
J.

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