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Mooney v. Superior Court of Santa Cruz County Summary

Opinion published February 9, 2016.

Factual Background

In this writ proceeding, Wife challenged the trial court’s failure to rule on her settled statement motion and the trial court’s decision to award attorney’s fees.

In April 2014, the trial court entered a judgment in Husband and Wife’s dissolution action after a one-day trial.   Wife appeared in pro se.  Wife filed a timely notice of appeal in June 2014.  She elected to proceed with a clerk’s transcript and settled statement under California Rule of Court 8.137 as to the oral proceedings in the trial court. 

After she retained counsel, Wife filed a motion for settled statement in the trial court.  In her motion, Wife asserted the hearing went unreported and the only way to provide the appellate court with a record with the oral proceedings was by way of a settled statement.   Husband essentially responded Wife was not entitled to a settled statement and if she were, it would cause him a great burden.

 At a later hearing, Wife’s attorney argued it was immaterial if Husband was burdened by Wife’s settled statement request.  Still later, she filed a three page settled statement.  Husband disputed the accuracy of the statement

Trial Court’s Order


The trial court first ordered Wife to pay Husband’s fees associated with her settled statement motion.  The settled statement imposed a great burden on Husband. The court stated it relied on Family Code sections 2032 and 4320 as authority for the order.  The court found the settled statement Wife submitted was far off the mark from what actually occurred at the hearing.  Wife owed 7,300 for the work Husband already expended on the motion and $2,700 more for further work.  The trial court never issued or filed a written order granting or denying Wife’s motion for a settled statement.  Wife filed a petition for writ of mandate.

Decision on Appeal

    1) Settled Statement


The court of appeal found Wife timely filed a motion for settled statement in conjunction with her notice of appeal.  However, the trial court, despite holding two hearings, never granted or denied her motion.  A trial court may exercise its discretion when it rules upon a settled statement, but a failure to rule at all necessarily represented an abuse of discretion. 

The court of appeal recalled several cases that demonstrated the trial court’s duty on a motion for settled statement.  “Unless there is some justifiable excuse, a trial judge may not arbitrarily refuse to settle the statement.  . . . [A] trial court considering a motion for a settled statement may ordinarily consider (1) the suggestions of the respondent on appeal; (2) the judge’s own memory; (3) notes made by the judge during the trial and any other helpful resources, such as a reporter’s notes or transcript, that are available. “

In this case, there was no justifiable excuse to deny Wife’s motion.  The trial court took possessed notes of the short hearing and told the parties it could assess the accuracy of a statement.  Moreover, Husband’s attorney was present at the hearing and could remember the trial testimony

      2)Attorney’s Fees

The trial court’s attorney’s fees order constituted an abuse of discretion.  First, Husband neve filed a motion or an order to show cause seeking attorney’s fees in the first place (A requirement under section 2030).  Moreover, the court failed to make the statutory finding on whether there was a disparity in the parties’ ability to pay.  Finally, attorney’s fees were not incurred due to Wife’s litigation conduct but Husband’s meritless opposition to the motion and the court’s lack of familiarity with settled statements. 

The court issued a peremptory writ of mandate directing the superior court to vacate its order awarding Husband attorney's fees and to conduct a new hearing on Wife’s motion for a settled statement 



The importance of this case cannot be understated.  A settled statement is so important because, without a record of the oral proceedings in the trial court, it is assumed the record would contain findings and facts that support the trial court’s order.  An appeal without a record is called an appeal upon the judgment roll.  In such an appeal, appellant must affirmatively show error on the face of the record.  This is an especially hard burden to meet and will likely be satisfied in only the rarest of cases.  To avoid this burden, the appellant must prepare a settled statement to take the place of a missing reporter’s transcript.  This is exactly why Wife went through the trouble to do so in this case.  Without one her appeal likely stood no chance.

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