Metropolitan News-Enterprise


Thursday, October 12, 2016


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C.A. Treats Statement of Decision as Final Judgment

Opinion Says Litigant’s Delay in Pointing to Absence of an Actual Judgment Creates a Waiver


By a MetNews Staff Writer


The Court of Appeal held yesterday that a litigant in a divorce case had forfeited the right to argue that a statement of decision was not binding because he waited nearly a year, and after various orders had been made, before pointing out that a judgment had not been entered.

In an unpublished opinion, Justice Richard Huffman of the Fourth District’s Div. One said that because the ex-husband, Philip Paccione, had not earlier disputed the finality of the statement of decision (“SOD”) “and instead had substantially complied with at least one subsequent order carrying out the SOD, we conclude the court correctly determined he waived or forfeited his right to dispute the finality of the SOD.”

Huffman explained:

“It is a well-established principle that a party may not assent to a ruling and then complain of the ruling on appeal….The rationale behind this rule is that parties would otherwise be encouraged to remain silent until it was too late to rectify the error, thereby requiring the court to overturn the judgment….

“Here, Paccione remained silent and acquiesced to the court proceeding as if the SOD was a final order for nearly a year before objecting….By proceeding in this manner and allowing the court to make further orders carrying out the SOD without objection, Paccione waived his right to argue, months later, the SOD was not final.”

By not appealing the orders that had been made pursuant to the SOD, Huffman said, he waived the opportunity to contest them.

Paccione argued that he was foreclosed from appealing from the SOD because the judge had ordered opposing counsel to prepare a judgment. Huffman responded:

“However, had he appealed, the reviewing court would have had the discretion to treat it as a final order under these specific facts as it was signed, filed, and clearly intended to constitute the court’s final decision on the merits.”

The jurist added that Paccione “had several other avenues available for addressing the finality of the SOD” including raising the matter sooner, asking the judge to enter a judgment himself, filing a writ petition to bar the judge from issuing orders until there was a judgment, or moving for a new trial.

Paccione insisted that any holding that he is estopped from challenging the effectiveness of the SOD constitutes a new rule that should not be applied retrospectively. Huffman wrote:

“The trial court did not decide, nor do we here, that estoppel precludes Paccione’s right to appeal. The trial court decided, and we confirm, Paccione forfeited the right to argue the SOD was not a final decision by allowing the court to proceed as if it was without objection. The waiver or forfeiture of an argument by failing to object or acquiescing is not a new rule.”

The case is Marriage of Paccione, D068665.


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