Opinion
Certified for Partial Publication
Pursuant to rules 976 and 976.1 of the California Rules of Court, this opinion is certified for partial publication. The portions which have been deleted from publication are identified by double brackets ( [[/]] ).
Review Granted July 20, 1989.
Review Granted Previously published at: 220 Cal.App.3d 504 (Cal.Const. art. 6, s 12; Cal. Rules of Court, Rules 8.500, 8.1105 and 8.1110, 8.1115, 8.1120 and 8.1125) Husband appealed from judgment of dissolution entered in the Superior Court, Los Angeles County, Richard E. Denner, J. The Court of Appeal, Fred Woods, J., held that husband waived his right to raise any alleged omissions or deficiencies in statement of decision on appeal by failing to bring his claims of error to the attention of trial court by any of the methods provided in Code of Civil Procedure.
Affirmed.
Johnson, J., concurred in the judgment.
Carl I. Leibovitz, John V. Spilker, Los Angeles, and Jerrold S. Gross, for appellant.
Robert H. McNeill, Jr., Ivie & McNeill, Inc., Los Angeles, and Michael J. Rand, Encino, for respondent.
FRED WOODS, Associate Justice.
Husband appeals from a judgment on reserved issues. We affirm.
INTRODUCTION
The central issue on this appeal pertains to a statement of decision by the trial court which appellant claims is deficient. Appellant, the losing party at a court trial, timely requested and was served with a proposed statement of decision prepared by the prevailing party pursuant to court order. Thereafter appellant was served with a statement of decision by the clerk of the court in substantially the same form and content as the proposed statement submitted by the prevailing party. Can appellant raise for the first time on appeal issues pertaining to claimed deficiencies in the statement of decision, which, but for oversight or intention, appellant could have addressed and possibly resolved at the trial level?
Several reported Court of Appeal decisions conclude that the failure to bring to the attention of the trial court an omission in a statement of decision is not fatal to an appellant's right to raise the issue of the trial court's failure to make an express finding on a principal controverted issue for the first time on appeal. Two legal treatises echo this view with a third suggesting that implanted ambiguity in a statement of decision will increase the chances for reversal on appeal. Our research, however, does not reveal any California Supreme Court decision which would support the decisions or the treatise writers. As hereafter discussed, we conclude that the preferable approach is to the contrary [258 Cal.Rptr. 283]and decline to follow those Court of Appeal decisions which hold otherwise.
An ancillary issue is raised pertaining to the sufficiency of the evidence to support the trial court's determination that 1,004 shares of IBM stock were community property. We conclude that there is no merit in this contention as substantial evidence supports the determination of the trial court on this issue.
FACTUAL AND PROCEDURAL BACKGROUND
Husband and Wife were married on April 29, 1974, and separated on June 4, 1984. A contested dissolution trial was heard on five days in late 1985 and early 1986.
Request for Statement of Decision
The intended decision of Judge Richard Denner was announced on January 28, 1986. Husband filed a request for a statement of decision. The court ordered Wife's counsel to prepare the statement of decision. Wife's counsel submitted a proposed statement of decision. No objections to the statement nor counterproposals were filed by Husband.
The court resolved the character of the IBM stock as community or separate and divided and awarded it as follows: a. to Wife, the following community property-163 shares of IBM stock as her separate property; b. to Husband, the following community property-841 shares of IBM stock as his separate property; and c. confirmed to Husband as his separate property, 44 shares of IBM stock acquired premarriage.
[[/]]
Husband filed a timely notice of appeal.
DISCUSSION
Husband first contends that the trial court failed to render a proper statement of decision. He secondly contends the evidence was insufficient to warrant treatment of 1,004 shares of IBM stock as community property. I.
The Failure to Bring Omissions or Ambiguities in The Statement of Decision to The Attention of The Trial Court Waives The Right to Raise Those Errors on Appeal
Husband contends that the court failed to render a proper statement of decision as it did not explain the factual or legal basis for its decision. In Husband's brief, he discusses several examples of what he considers to be deficiencies in the statement of decision. Husband cites at least one example of where the statement of decision does not make a requested finding on a principal controverted issue (whether or not the community was entitled to a credit for expenditures on a parcel of real property which the court confirmed as Wife's separate property). We need not address these examples since, for the reasons discussed in this opinion, we conclude that the failure to bring an omission or error in the statement of decision to the attention of the trial court waives the right to raise the deficiency on appeal.
Husband relies on McCurter v. Older (1985) 173 Cal.App.3d 582, 219 Cal.Rptr. 104, to support his position that his failure to object to the statement of decision in the trial court is not fatal to his right to object thereto for the first time on appeal. In McCurter, the trial court failed to address the issue of constructive fraud in its statement of decision although requested to do so by the losing party. The court reasoned that: " The failure to object to a proposed statement of decision is not a waiver of the failure of the court to explain the factual and legal basis for its decision on ... a principal controverted issue. " (Emphasis added.) ( Id., at p. 594, 219 Cal.Rptr. 104.)
We recognize that a line of authority supports the McCurter holding. (See the authorities collected at 4 Cal.Jur.3d, Appellate Review, § 151, pp. 223-224.) Witkin states that: " The failure to find on a material issue was too fundamental a defect to be waived by failure to object or to propose amendments to the findings in the trial court." (Emphasis added.) (7 Witkin, [258 Cal.Rptr. 284]Cal. Procedure (3d ed. 1985) Trial, § 386, pp. 394-395 and cases collected therein.) A number of appellate decisions hold that the failure of a court to make an express finding on a principal controverted issue is reversible error when there is sufficient evidence to sustain a finding in favor of the complaining party. (See cases collected in McCurter v. Older, supra, 173 Cal.App.3d 582, 593-594, 219 Cal.Rptr. 104.)
The only California Supreme Court decision to be cited by the aforementioned authorities on the subject is Guardianship of Brown (1976) 16 Cal.3d 326, 128 Cal.Rptr. 10, 546 P.2d 298. In Brown, the Court stated that: " It is settled that, unless waived, express findings are required on all material issues raised by the pleadings and the evidence, and failure to find on a material issue will ordinarily constitute reversible error." (Emphasis added.) ( Id., at p. 333, 128 Cal.Rptr. 10, 546 P.2d 298.) However, the appellant in Brown had objected to the proposed findings " on the grounds that they were not supported by the evidence and did not cover all material issues raised." ( Id., at p. 331, 128 Cal.Rptr. 10, 546 P.2d 298.)
A 1968 amendment to Code of Civil Procedure section 632 abolished the mandatory requirement for findings. ( R.E. Folcka Construction, Inc. v. Medallion Home Loan Co. (1987) 191 Cal.App.3d 50, 53, 236 Cal.Rptr. 202.) Then, " the Legislature decided in 1981 to amend section 632 and to abolish findings.... the purpose of the amendment was ‘ to save the court and attorney time by eliminating the requirement for findings of fact and conclusions of law which generate proposed findings and counter findings thereby resulting in a " mini-trial" after the trial’ previously held. [Citation.]" ( Id., at p. 54, 236 Cal.Rptr. 202.)
All statutory references are to the Code of Civil Procedure.
Previously, former section 632 provided the only means by which a party could waive the right to findings. ( East-West Capital Corp. v. Khourie (1970) 10 Cal.App.3d 553, 556, fn. 1, 89 Cal.Rptr. 369; 7 Witkin, Cal. Procedure (3d ed. 1985) Trial, § 373, pp. 379-380.) We note that section 632 no longer provides a listing of the conditions under which express findings on a principal controverted issued can be waived.
Currently, section 632 provides in part that: " The court shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial."
On the other hand, other appellate courts have applied the doctrine of implied findings and concluded that the trial court's failure to make an express finding on a material issue does not necessarily lead to a reversal. These courts have interpreted section 634 to impose on counsel a duty to bring to the attention of the trial court such an omission. " Under such circumstances [when an omission is not brought to the attention of the trial court], a reviewing court must assume the existence of any findings and conclusions favorable to respondent in support of the judgment." (See cases collected in Rees v. Department of Real Estate (1977) 76 Cal.App.3d 286, 291, 142 Cal.Rptr. 789.)
Section 634 presently provides that: " When a statement of decision does not resolve a controverted issue, or if the statement is ambiguous and the record shows that the omission or ambiguity was brought to the attention of the trial court either prior to entry of judgment or in conjunction with a motion under Section 657 or 663, it shall not be inferred on appeal or upon a motion under Section 657 or 663 that the trial court decided in favor of the prevailing party as to those facts or on that issue." (Emphasis added.)
The California Supreme Court followed a similar tack in In re Marriage of Dawley (1976) 17 Cal.3d 342, 131 Cal.Rptr. 3, 551 P.2d 323. Although the trial court did not render a finding on the issue of whether or not an antenuptial agreement had been procured by undue influence, the court reasoned that since the Wife had not invoked her right to request a special finding under former section 634, the Court could resort to an implied finding to uphold the judgment. [258 Cal.Rptr. 285]( Id., at p. 354, 131 Cal.Rptr. 3, 551 P.2d 323.) From the trial court's conclusion that the wife had freely and voluntarily entered into the agreement, the Court resorted to an implied finding that her consent was not procured by undue influence. ( Id., at p. 355, 131 Cal.Rptr. 3, 551 P.2d 323.)
Our conclusion is that we infer that the trial court decided in favor of Wife as the prevailing party on any issue not addressed in the statement of decision. Had the court made a finding that the community was entitled to a credit for expenditures made on separate real property, such a finding would have been at the Wife's expense. In the absence of such a finding we infer that the court did not find evidence of the purported credit to be credible and, accordingly, found no community credit to be due. We decline to follow the line of cases cited in McCurter as it is our opinion that to do so would permit an attorney, through neglect or perhaps calculated intention, to take advantage of opposing counsel and the court and to neglect their obligations and duties as officers of the court.
" Counsel should not forget that they are officers of the court, and while it is their duty to protect and defend the interests of their clients, the obligation is equally imperative to aid the court in avoiding error and in determining the cause in accordance with justice and the established rules of practice." ( Furlong v. White (1921) 51 Cal.App. 265, 271, 196 P. 903.)
Additionally, the rule espoused in McCurter that failure to object in the trial court is not a waiver of a trial court's failure to find on a material issue seems to have its origins in a 1945 Court of Appeal decision when findings were mandatory. In Wilcox v . Sway ( 1945) 69 Cal.App.2d 560, 160 P.2d 154, the court concluded that the appellant was not required to move for a new trial or to propose amended findings, nor did the appellant have to except to the findings since they were deemed excepted to. ( Id ., at P. 564, 160 P.2d 154.) The Wilcox court reasoned that since findings were on file, a waiver could not be presumed. ( Ibid . ) We observe that section 632, as presently constituted, no longer sets out the exclusive means by which a right to express findings can be waived. We further observe that section 634 positively provides the conditions under which a party can waive the right to an express finding on a principal controverted issue. We therefore conclude that to deem the statement of decision excepted to would defeat the meaning of section 634. In our opinion, to apply the concept of waiver to the instant case comports with the established principles of appellate review. " An appellate court will ordinarily not consider procedural defects or erroneous rulings in connection with relief sought or defenses asserted, where an objection could have been, but was not, presented to the lower court by some appropriate method. [Citations.] ¶ The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver. [Citation.] Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial." (Original emphasis.) (9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 311, p. 321.)
It would be patently unfair for counsel to lull the trial court and opposing counsel into thinking that the statement of decision was acceptable. Another issue would, of course, have been presented if after being notified of the omission or error, the trial court then refused to address the issue contained in the requested finding.
An analogous concept is that of invited error which provides that: " a party must abide by the consequences of his own acts and cannot seek a reversal on appeal for errors which he has committed or invited. In other words, one whose conduct induces or invites the commission of error by the trial court is estopped afterward from taking advantage of such error." ( Abbott v. Cavalli (1931) 114 Cal.App. 379, 383, 300 P. 67.) Any error in the statement of decision was invited by the conduct of Husband's attorney in failing to bring the [258 Cal.Rptr. 286]alleged errors to the attention of the trial court.
From the record, we are unable to determine whether the purported errors and omissions in the statement of decision were known by appellant at the time of trial. We give trial counsel the benefit of any doubt and assume that failure to object at trial to the statement of decision was not through plan, design or intent. If the record had disclosed a calculated intention to remain silent on the purported irregularities in the statement of decision, our response would have been to relegate such sandbagging tactics to the unacceptable and discredited category of " gamemanship" . With the ever increasing workload in the trial courts, we do not think that counsel should have the opportunity to delay the process of justice by sitting idly by, noting errors and not giving the trial court the opportunity to correct the errors. We note that at least one legal practice guide inferentially encourages this method of delay by stating that: " Submitting a statement with omissions or ambiguities, however, enhances the possibility that the statement will be overturned." (2 Cal. Civil Procedure During Trial (Cont.Ed.Bar 1984) Trial Without Jury, § 20.24, p. 436.) We find no salutary effect in such a tactic in today's legal atmosphere.
One rationale for the rule that the failure to object to the findings is not a waiver of a failure to find on a material issue is that the losing litigants and the appellate courts are faced with findings which are so ultimate as to be extremely difficult to determine the factual basis or legal theory of the decision. ( Employers Casualty Co. v. Northwestern Nat. Ins. Group (1980) 109 Cal.App.3d 462, 474, 167 Cal.Rptr. 296.) The Employers Casualty court reasoned that it was the obligation of the trial court to supply a fair record disclosing the court's determination of all issues of fact so that the appellate court would be able to determine the correctness of the conclusions of law. ( Id., at pp. 474-475, 167 Cal.Rptr. 296.)
We do not disagree with that rationale. However, we would place on the potential appellant the responsibility to create the proper record for review by giving the trial court the opportunity to correct any alleged errors. Otherwise, a losing litigant can delay the process by appealing the statement on procedural grounds, wait for the appellate court to remand for a proper statement, and then finally appealing any substantive claims.
At the request of the trial court, Wife's counsel prepared a proposed statement of decision. Husband did not submit any counterproposals nor file any objections to the statement within 15 days as provided for in California Rules of Court, rule 232(d) and (f). Furthermore, Husband did not make a motion for a new trial (§ 657) nor a motion to vacate and enter a different judgment (§ 663). We conclude that the record shows that Husband did not bring his claims of error to the attention of the trial court by any of the methods provided by section 634.
California Rules of Court number 232(d) and (f) provide as follows:
Accordingly, Husband waived his right to raise any alleged omissions or deficiencies in the statement of decision on appeal.
[[/]] DISPOSITION
The judgment is affirmed. Wife to recover costs on appeal.
LILLIE, P.J., concurs.
JOHNSON, J., concurs in the judgment.
" (d) [Objections to proposed statement of decision] Any party affected by the judgment may, within 15 days after the proposed statement of decision and judgment have been served, serve and file objections to the proposed statement of decision or judgment."
" (f) [Hearing] The court may order a hearing on proposals or objections to a proposed statement of decision or the proposed judgment if a statement of decision is not required."