Family law, hearsay, and the boundaries of “all relevant evidence”

Few married couples disagree about their date of marriage. Many spend a small fortune to lure friends and family to a scenic place on a date that is embossed on everything from gilded invitations to take-home gift bags. Spouses forget this date at their peril since marriage converts it into an “anniversary” that may require an advanced dinner reservation.

If a couple divorces, however, their date of separation may be less obvious. One partner might consider it the date he or she learned of a particular transgression after years of mutual indifference. The other might say it was months or years later when the dissolution petition was served. Either date could feasibly satisfy California Family Code § 70:

(a) “Date of separation” means the date that a complete and final break in the marital relationship has occurred, as evidenced by both of the following:

(1) The spouse has expressed to the other spouse the intent to end the marriage.

(2) The conduct of the spouse is consistent with the intent to end the marriage.

(b) In determining the date of separation, a court shall take into consideration all relevant evidence.

But what are the boundaries of “all relevant evidence?” Does this include hearsay, which is generally inadmissible unless it falls into one of the Evidence Code’s many exceptions? While the date of separation may seem to be an insignificant line item in divorce proceedings, the family law implications of this determination can be significant. In a years-long marriage, choosing one date over another may significantly alter the amount of income used to calculate spousal or child support, or determine whether the marriage was a marriage of “long duration.” (See FC § 4336(b).)

Consider a hypothetical:

Kelly and Dana are in trial concerning date of separation – an issue that will determine whether the marriage is one of long duration – potentially entitling Kelly to permanent spousal support. The parties agree that date of marriage is January 1, 2010. Dana believes date of separation is January 1, 2019, the day after their big New Year’s Eve fight when Dana stormed out of the house shouting “This marriage is over!” Kelly believes that the couple did not separate until March 15, 2020, when Kelly filed the Petition for Dissolution. Dana has already presented testimony at the trial from third parties that in 2019 Kelly told others that the marriage was over. At trial, Joe the neighbor starts to testify about what he heard from their other neighbor, Sally, about a conversation she had in 2019 with Kelly about Kelly’s marriage to Dana. “HEARSAY!” shouts Dana’s counsel, unmuting herself.

“IN FACT, MULTIPLE HEARSAY! It’s a statement made other than by Joe while testifying offered to prove the truth of the matter stated [what Joe heard from Sally about Kelly’s marriage] and what Sally was told by Kelly,” she continues.

Rather than working through whether the anticipated testimony is hearsay at all or whether it fits in to a hearsay exception (such as EC § 1220, admission of party or EC § 1230, declaration against interest), Kelly’s attorney responds, “Your Honor, the hearsay rule does not even apply to date of separation disputes. FC § 70 (b), provides ‘In determining the date of separation, the court shall take into consideration all relevant evidence.’ Even my honorable opposing counsel will agree that what Joe started to say about what he heard from Sally about what Kelly said to her about the marriage is ‘relevant evidence.’”

Under California Evidence Code § 210, relevant evidence “means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” Under this hypothetical, Kelly’s belief that the marriage ended in 2020 is clearly a “disputed fact that is of consequence to the determination of the action.” But Sally’s comment to Joe is also “evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated,” otherwise known as hearsay under EC § 1200.

Is Kelly’s attorney correct that the hearsay rule does not apply to date of separation disputes? If not, what does FC § 70(b) mean? If so, is the issue then only one of the weight of the testimony? Can you still disregard or discount the testimony as not being reliable? This article considers whether the Legislature in requiring a court to hear “all relevant evidence,” as it does in FC § 70 and in other statutes such as CCP § 527.8(j) (workplace violence restraining order trials), CCP § 527.6(i) (civil harassment restraining order trials), CCP § 527.85(j) (school violence restraining order trials), and CW&IC § 358 (juvenile dependency dispositional trials), requires that the court hear traditionally inadmissible evidence such as hearsay.

Small claims courts expressly permit hearsay evidence. (See Houghtaling v. Superior Ct. (1993) 17 Cal. App. 4th 1128, 1131, “We hold that in a proceeding conducted under the Small Claims Act (Code Civ.Proc., §§ 116.110 et seq.), relevant hearsay evidence is admissible subject only to those limitations contained in Evidence Code section 352 and the law of testimonial privileges.”) CCP § 116.520(a), the lone small claims evidence code, merely states that “[t]he parties have the right to offer evidence by witnesses at the hearing or, with the permission of the court, at another time.” It is not dispositive here but merits this brief acknowledgment.

California’s gun violence restraining order law likely also authorizes the admission of hearsay but it does not contain a mandate that the court consider all relevant evidence. (See Pen. Code § 18100, et seq.) It does, however, mandate the court “shall consider all evidence of” recent threats of violence. (See PC § 18155(b)(1); PC § 18175(a); see also Dean Hansell & Bryant Y. Yang, “The use of hearsay during restraining order hearings,” Daily Journal, April 6, 2020 at 5.)

The plain text of FC § 70

When interpreting a statute, “[o]ur fundamental task . . . is to determine the Legislature’s intent so as to effectuate the law’s purpose. We first examine the statutory language, giving it a plain and commonsense meaning . . . If the language is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend.” (Sierra Club v. Superior Court (2013) 57 Cal.4th 157, 165-166.)

FC § 70(b)’s language appears clear and unambiguous. Taken at face value, “all relevant evidence” means just that – any evidence that might help prove or disprove a disputed, consequential fact. Furthermore, “shall” is mandatory so FC § 70(b) doesn’t just allow courts to hear all relevant evidence but requires it. (EC § 11.) A literal reading of the statute thus suggests that courts must hear all evidence that is probative about the true date of separation, even hearsay.

EC § 351 complicates this analysis, however, by stating that “[e]xcept as otherwise provided by statute, all relevant evidence is admissible.” The hearsay rule (EC § 1200(b): Except as provided by law, hearsay evidence is inadmissible) is such a statute and is specifically identified in the Senate Committee Comments accompanying EC § 351. This seems to impose a statutory restriction on a court’s ability to admit “all relevant evidence.” Thus, the question becomes whether the Legislature intended FC § 70 to be an exception to EC § 1200.

The legislative intent behind FC § 70

“If the statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute’s purpose, legislative history, and public policy.” (Sierra Club v. Superior Court (2013) 57 Cal.4th 157, 166.) The Legislature stated its intentions in the text of FC § 70(c): “It is the intent of the Legislature in enacting this section to abrogate the decisions in In re Marriage of Davis (2015) 61 Cal.4th 846 and In re Marriage of Norviel (2002) 102 Cal.App.4th 1152.” In both, Davis and Norviel, judges were asked to choose between a bright-line rule in which the intent to separate is marked by one partner moving out of the shared home and a more discretionary approach that considered the totality of circumstances without requiring a partner to physically vacate the shared home. Both cases took the bright-line approach and imposed a physical separation requirement for date of separation determinations.

In stating that FC § 70 is intended to abrogate these cases, the Legislature clearly favors the “totality of circumstances” approach not taken by those courts. Prior to Davis and Norviel, In re Marriage of Hardin (1995) 38 Cal. App. 4th 448 used a totality of circumstances approach. In Hardin, the court found that “[t]he ultimate question to be decided in determining the date of separation is whether either or both of the parties perceived the rift in their relationship as final. The best evidence of this is their words and actions.” 38 Cal. App. 4th 448 at 453. Although the court stopped short of saying “including hearsay,” such a subjective analysis might naturally encompass the type of secondhand recollections that the hearsay rule renders inadmissible. In fact, Justice Bamattre-Manoukian dissented in Norviel, noting that admitting all probative evidence “is particularly appropriate in family law matters where the testimony of the parties often is, as in this case, in conflict, and where the trial court is called upon to make credibility judgments.” (Norviel 102 Cal.App.4th 1152 at 1165.)

Admitting all relevant evidence furthers the Legislature’s broader goal in enacting FC § 70:

Requiring courts to determine the date of separation based on a totality of the evidence should benefit the parties by ensuring the court apply the facts of the case to the law and determine what is fair given the parties’ unique circumstances. While this could increase litigation costs, it will increase just outcomes. (California Bill Analysis, S.B. 1255 Assem., 6/8/2016 at 8, emphasis added.)

Pinpointing the date of separation is a highly fact-based process that requires a court to consider the parties’ expressed intentions in conjunction with their objective actions. This invites consideration of hearsay evidence, as evidenced in the Kelly and Dana hypothetical.

An argument exists, however, that the Legislature merely intended to require a holistic approach at a date of separation hearing, not bypass basic evidentiary tenets. In the numerous drafts leading up to FC § 70’s passage in 2016, the California Senate repeatedly stated that the bill was intended to “restore the discretion that many courts exercised in determining the date of separation.” (2015 California Senate Bill No. 1255, California 2015-2016 Regular Session.) Nowhere does the Senate parse or modify FC § 70(b)’s wording since the statute took effect in 2017. It could have read “the court shall take into consideration all relevant evidence including hearsay,” but it does not. Instead, FC § 70’s legislative history suggests that allowing otherwise-inadmissible evidence was a secondary consideration in a statute that was more concerned with abrogating the bright-line approach used in Davis and Norviel.

The Legislative comments when drafting and amending the statute do not address FC § 70(b). Instead, we infer that the Legislature prefers an inclusive consideration of “all relevant evidence” to serve its stated goal that courts examine the totality of circumstances.

Absent meaningful clues from the Legislature, an examination of other, similarly worded statutes to see how “all relevant evidence” has been interpreted over time may offer clarity.

Statutes other than FC § 70 with “all relevant” language and how they are interpreted.

Case law addressing FC § 70 is minimal and no reviewing court has been asked to address whether hearsay evidence can be admitted under subsection (b). Courts addressing issues other than date of separation determinations, however, have admitted hearsay using statutes that include “all relevant” language similar to that in FC § 70(b). In Kaiser Found. Hosps. v. Wilson (2011) 201 Cal. App. 4th 550, 557, a workplace harassment case, the court applied CCP § 527.8(j), which mandates that “the judge shall receive any testimony that is relevant” in workplace restraining order inquiries. Kaiser seemed to settle the hearsay issue in civil harassment cases by concluding that “the testimony that a trial court may consider in making a ruling on a petition pursuant to section 527.8 is not limited to nonhearsay testimony.” (201 Cal. App. 4th 550 at 558, emphasis added.) While it is tempting to extend this finding to other statutes, the Kaiser court largely based its decision to allow hearsay on the expedited nature of restraining order proceedings. See id., “Considering the fact that the purpose of the statute is to prevent violence in the workplace, the expedited nature of the proceeding contemplated by the statute, and the Legislature’s directive that the trial court shall receive all relevant testimony without qualification, we conclude that the testimony that a trial court may consider in making a ruling on a petition pursuant to section 527.8 is not limited to nonhearsay testimony.”

Duronslet v. Kamps (2012) 203 Cal. App. 4th 717 demonstrates that broadly allowing hearsay evidence is the rule, not an exception for statutes that include “all relevant” language. The Duronslet court considered issuing a civil harassment restraining order under CCP § 527.6(h), which also states that “the judge shall receive any testimony that is relevant” in reaching a decision. This, the court reasoned, “would seem to authorize the court to admit hearsay evidence during hearings conducted pursuant to Section 527.6, subdivision (d).” (Id. at 729.) Ultimately, hearsay was admitted and factored heavily into the court’s decision to issue a restraining order.

In both Kaiser and Duronslet, however, it is worth noting that “any testimony that is relevant” is not identical to “all relevant evidence.” The word “testimony” suggests that civil harassment courts are particularly concerned with including verbal exchanges that would otherwise be inadmissible hearsay. While “all relevant evidence” likely encompasses “any testimony that is relevant” the less testimony-specific wording in FC § 70(b) does not invite potentially unreliable verbal exchanges to the same degree as CCP § 527.6(h).

Juvenile dependency proceedings often allow otherwise-inadmissible hearsay evidence as well. The court in In re Corey A. (1991) 227 Cal. App. 3d 339 compared a jurisdictional hearing statute’s wording with that of a dispositional hearing statute. The jurisdictional statute states that, “[a]ny legally admissible evidence that is relevant to the circumstances or acts that are alleged to bring the minor within the jurisdiction of the juvenile court is admissible and may be received in evidence.” (Cal. Welf. & Inst. Code § 355(a).) The statute adds that a timely objection will render any hearsay evidence inadmissible, subject to several exceptions. (Id. § 355(c)(1)(A)-(D).) The dispositional statute, meanwhile, requires that the court “shall receive in evidence the social study of the child made by the social worker . . . and other relevant and material evidence as may be offered.” (Cal. Welf. & Inst. Code § 358.)

The Corey A. court reviewed the more permissive language of WIC § 358 and concluded that “[t]he statutes clearly indicate legislative intent to treat the two phases of dependency proceedings differently. Under [WIC] § 355, more stringent evidentiary requirements must be met . . . At the subsequent dispositional phase, any relevant evidence including hearsay shall be admitted pursuant to section 358, subdivision (b) to help the court determine the child’s best interests.” (227 Cal.App.3d 339 at 346-47, emphasis added.) In re Madison T. (2013) 213 Cal. App. 4th 1506 reiterates this approach. In Madison T., the court stated that “a social worker’s testimony at a dispositional hearing is largely based on hearsay . . . [T]he fact that the evidence is hearsay is not objectionable as long as the evidence is otherwise reliable, as it was here.” (213 Cal.App.4th 1506 at 1510.) This suggests that broad permission to admit “all relevant evidence” includes hearsay but is subject to reliability judgments.

Reliability of evidence: family law judges weigh the evidence, not juries

A compelling rationale for permitting hearsay in date of separation determinations is that family court trials do not have juries who may be less capable of determining the reliability of hearsay evidence. Reliability was clearly a concern to the Madison T. court, which noted that hearsay is not objectionable “as long as [it] is otherwise reliable.” (Id.) Assuming a presiding judge can correctly determine reliability, however, Madison T. shows that hearsay evidence can play an important role in extracting the kernel of truth from conflicting testimony. As the above hypothetical demonstrates, testimony like Joe’s may prove decisive if reliable.

In Kaiser, the reviewing court concluded that “[t]rial judges are particularly aware of the potential unreliability of hearsay evidence, and are likely to keep this in mind when weighing all of the evidence presented.” Since “all relevant evidence” in FC § 70 closely parallels the “any testimony that is relevant” language of CCP § 527.6(h) and CCP § 527.8(j), the Kaiser and Duronslet reasoning could extend to date of separation determinations.

Doing so, however, neglects a “unique” aspect of restraining order hearings that does not necessarily extend to marriage dissolution proceedings – their abbreviated nature. As the Kaiser court noted, “injunctive proceedings under section 527.8 are intended to parallel those under section 527.6, which are procedurally truncated, expedited, and intended to provide quick relief to victims of civil harassment.” (201 Cal. App. 4th 550 at 557.) This need for expediency factored heavily into the court’s decision to admit hearsay evidence in that case.

Much to the chagrin of the separating parties, marriage dissolution is not necessarily swift. Unlike a judge issuing a restraining order on an expedited basis, family law matters often take time. Although child custody may be pressing, the date of separation is often reserved until trial. That said, judges must base a date of separation determination on “all relevant evidence.” As the Madison T. court found with regard to juvenile dependency, deciding in the parties’ best interest may require admitting hearsay evidence. (213 Cal. App. 4th 1506 at 1509.)

Conclusion

The Legislature mandates that a family law court admitting evidence under FC § 70 must hear all evidence that it finds relevant to the date of separation determination. The plain language of FC § 70(b) supports this conclusion. Absent any qualifiers or further conditions, the directive “a court shall take into consideration all relevant evidence” is a clear mandate to admit any evidence that would help the court make an informed determination.

The legislative intent behind FC § 70 further justifies this conclusion. Although the Legislature enacted FC § 70 to abrogate Davis and Norviel and require courts to base date of separation determinations on the totality of circumstances. Doing so inherently necessitates considering testimony like hearsay that reveals a party’s subjective intent.

Finally, courts applying statutes that allow admitting “all relevant” evidence in juvenile dependency, civil harassment, and workplace violence restraining order cases have reached this same conclusion but add an important caveat – hearsay is only admissible in a bench trial where a judge alone makes the determination and can decide that it is in fact reliable. As with other bench trials, judges routinely gauge the reliability of testimony based on the witness’s credibility and other factors. If the relevant evidence is deemed reliable, it will be given due weight. If it is not, the judge will use his or her discretion to give it minimal or no weight in reaching a conclusion.