Marriage of Pasco, 42 Cal.App.5th 585

The parties divorced by stipulated judgment in December 2014; Richard agreed to pay Zoe $2,500/month spousal support (plus bonuses) and the parties agreed to "review spousal support in December 2016."
Richard filed a request to terminate spousal support on January 4, 2017, citing Zoe’s new job and increased income; he retained an expert who opined Zoe could meet the marital standard of living without support.
The court set a mandatory settlement conference and a two-day trial; both parties submitted statements of issues and contentions and planned competing expert testimony regarding the marital standard of living.
On the first day of trial (August 18, 2017) the court, after brief argument, ruled there was "no material change in circumstances" and denied Richard’s termination request without admitting evidence or taking testimony.
Richard objected, sought recusal, and the court instead awarded Zoe reduced attorney fees of $2,500; Richard appealed the postjudgment order denying termination.
The Court of Appeal reversed, holding the trial court abused its discretion by deciding the modification request without considering evidence, and remanded for the previously scheduled evidentiary trial.

Issue	Richard's Argument	Zoe's Argument	Held
Whether the trial court abused its discretion by denying termination of spousal support without taking evidence	Court could not resolve disputed factual issues on counsel argument; an evidentiary hearing was required	Court acted within its discretion in refusing oral evidence and could rely on filed materials	Reversed: ruling was an abuse of discretion; remand for evidentiary trial
Whether the court could decide the motion based on filed declarations and trial brief without admitting them into evidence	Declarations and briefs are not evidence; court must admit and consider evidence before resolving disputed facts	The court had the parties’ declarations and briefs and treated them as sufficient to decide	Held for Richard: declarations/trial briefs are not automatically evidence and cannot substitute for an evidentiary hearing on disputed facts
Whether a prima facie showing of changed circumstances had been made and what that implied for the hearing	Richard’s filings and the court’s prior setting of a two-day trial indicate a prima facie showing was made, so an evidentiary hearing was required	Zoe argued "arguably" no changed circumstances but did not contest the trial setting or lack of prima facie showing	Court of Appeal: record implies a prima facie showing was made; thus the court should have proceeded with evidence rather than decide on argument alone

In re Marriage of Swain, 21 Cal.App.5th 830 (2018) (trial court must base modification findings on evidence; abuse of discretion where findings are unsupported)
In re Marriage of Brown & Yana, 37 Cal.4th 947 (2006) (party seeking change must make prima facie showing before entitlement to evidentiary hearing)
In re Marriage of Boblitt, 223 Cal.App.4th 1004 (2014) (family proceedings governed by civil rules of evidence and procedure)
In re Marriage of Shimkus, 244 Cal.App.4th 1262 (2016) (filed declarations give notice but are not automatically evidence; documents must be offered and admitted)
In re Marriage of Binette, 24 Cal.App.5th 1119 (2018) (discusses parties' conduct and admission of documents; court disagreed with aspects of its dicta in this case)
In re Heather H., 200 Cal.App.3d 91 (1988) (unsworn testimony is not evidence)
People v. Superior Court (Crook), 83 Cal.App.3d 335 (1978) (statements by counsel are not evidence)
Russell v. Foglio, 160 Cal.App.4th 653 (2008) (notices of appeal liberally construed to protect appellate rights)