In Marriage of Leichty (F069875 Dec. 7, 2015) the Fifth District reiterated an important distinction pertaining to the interrelationship between the burden of proof at trial and the "substantial evidence" standard of review. If an appellant is challenging express or implied trial court findings "in favor of the party with the burden of proof, the reviewing court will infer the existence of that implied finding only if it is supported by substantial evidence." In those case the appellant who lost at trial can argue the ruling is unsupported by substantial evidence. But what if the appellant had the burden of proof in the lower court, "and the trier of fact explicitly or implicitly concluded the appellant did not carry the burden"? As an appellant, it often is preferable to couch your argument as legal error, but that line of attack may be unavailable if the trial court relied on the governing legal precedent and/or recited the relevant "factors" underlying the decision. All is not lost, however. In those cases, the reviewing court can look to "'whether the evidence compels a finding in favor of the appellant as a matter of law.'" "Under the finding-compelled-as-a-matter-of-law standard, the finding was required only if the appellant's evidence was (1) uncontradicted or unimpeached and (2) of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding." So ascertain which party had the burden at trial and frame your appellate argument accordingly.
