A Failure to Request a Statement of Decision Results in a Waiver of Such Findings

The Court of Appeal held that a memorandum of intended decision, indicating that the Orange County divorce court erroneously applied the statute retroactively in determining the amount of spousal support was not part of the record on appeal and a party could not appeal the Orange County divorce judgment on the basis of retroactive application as she failed to request a statement of decision and/or a transcript of the proceeding and the judgment was silent with respect to the Orange County divorce court’s reasoning.

Gladys and Joseph married in 1953 and separated in 1984. The Orange County divorce court in its memorandum of intended decision, indicated it was retroactively applying Civil Code Section 4800.2. Neither Orange County divorce attorney requested a statement of decision be made, nor was one rendered. The judgment was silent with respect to the Orange County divorce court’s reasoning: it merely confirmed certain property of the parties as separate property and divided the community property. Gladys’ Orange County divorce attorney appealed the judgment, claiming that the Orange County divorce court erroneously applied section 4800.2 retroactively.

Gladys’ Orange County divorce lawyer elected on appeal to submit a clerk’s transcript containing various pleadings of the parties, the trial briefs, a memorandum of tentative decision, and the Orange County divorce Judgment on Reversed Issues. Therefore, this Court must decide whether the record on appeal discloses the error. First, the issue of whether the Orange County divorce court’s memorandum of intended decision can be considered part of the record on appeal. In In Estate of Bernard (1962) 206 Cal.App.2d 375, concluded the court’s memorandum of intended decision was not part of the record on appeal. “A court is not bound by its statement of intended decision and may enter a wholly different judgment than that announced.” (Canal-Rundolph Anaheim, Inc. v. Willkoski (1978) 78 Cal.App.3d 477, 494.) Furthermore, [t]he memorandum decision cannot be relied upon to fill the interstices in findings and conclusions left void by the failure to find pursuant to properly filed request under Code of Civil Procedure Section 634.” Morris v. Thogmartin (1973) 29 Cal.App.3d 922, 930.  Here, Gladys’ divorce attorney may not rely solely on the memorandum of intended decision. A statement of decision would have allowed the Orange County divorce court to place upon the record its view of the facts and law of the case. A failure to request a Code of Civil Procedure Section 632 statement results in a waiver of such findings; Gladys’ Orange County divorce atorney cannot now be heard to complain. Since a statement of decision was not requested by Gladys’ Orange County divorce attorney, the Orange County divorce court did not have the opportunity to amend. The judgment therefore governs. Furthermore, Gladys’ Orange County divorce attorney argues it was an error not to award fees to either party. However, Gladys’ Orange County divorce attorney failed to appreciate the significance of the Code of Civil Procedure Section 632. It serves the purpose of allowing the divorce court the opportunity to express its reasoning. Having failed to request a statement of decision.

The Orange County divorce court’s judgment was affirmed.

In re Marriage of Ditto, 206 Cal.App.3d 643 (1988).