21 Cal.App.5th 830
Cal. Ct. App.2018Background
- Leon and Sandra Swain divorced by stipulated judgment in 2007; Leon was ordered to pay Sandra $2,600/month spousal support and the judgment imputed Sandra an earning ability of $2,500/month if not self-supporting by Jan 2008.
- Leon retired in late 2016 citing health issues and filed a 2016 request for order to terminate spousal support, arguing Sandra had begun receiving a portion of his CalPERS retirement roughly equal to the support payments.
- Sandra did not appear at the modification hearing, but she filed an updated Income and Expense Declaration (FL-150) that Leon’s counsel first saw at the hearing; Leon objected because he had no opportunity to cross-examine her.
- The trial court admitted a CalPERS letter showing Sandra received $2,630.68/month and, despite earlier indicating it would not rely on Sandra’s declaration, used her FL-150 to calculate needs and reduced support to $750/month instead of terminating it.
- On appeal, the Court of Appeal held the trial court erred by considering Sandra’s declaration over Leon’s objection (Fam. Code §217), and that without admissible evidence of Sandra’s current needs the court abused its discretion in continuing support.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court could consider Sandra’s untested written Income & Expense Declaration over Leon’s objection at a post-judgment support modification hearing | Leon: §217 requires live testimony absent stipulation or good cause; written declaration inadmissible when opposing party cannot cross-examine | Trial court/Sandra (implicitly): declaration is a sworn statement admissible as evidence and may be considered; CalPERS letter suffices | Court: §217 (and Elkins history) bars reliance on such hearsay when opposing party objects and has no opportunity to cross-examine; declaration inadmissible here |
| Whether the trial court abused its discretion by continuing/reducing (rather than terminating) Leon’s spousal support obligation after his retirement | Leon: retirement materially reduced his ability to pay and Sandra’s CalPERS payments replaced prior support; absent admissible evidence of Sandra’s needs, support should terminate | Trial court: found a material change because Sandra began receiving CalPERS payments; relied on her FL-150 to find continuing need and ordered $750/month | Court: without Sandra’s declaration there was no admissible evidence of her current needs; Leon met burden to show changed circumstances; continuing support was an abuse of discretion — obligation terminated |
Key Cases Cited
- Elkins v. Superior Court, 41 Cal.4th 1337 (2007) (trial procedures requiring written declarations in place of live testimony are inconsistent with hearsay rules for contested marital dissolution proceedings)
- Reifler v. Superior Court, 39 Cal.App.3d 479 (1974) (long-cause post-judgment family law motions historically decided on affidavits under CCP §2009)
- In re Marriage of Shimkus, 244 Cal.App.4th 1262 (2016) (receipt of pension payments can constitute material change warranting modification of spousal support)
- In re Marriage of Sinks, 204 Cal.App.3d 586 (1988) (modification must be based on current facts and circumstances)
- Fost v. Superior Court, 80 Cal.App.4th 724 (2000) (remedy for witness unavailability or refusal to submit to cross-examination is exclusion of that testimony)
- In re Marriage of Schmir, 134 Cal.App.4th 43 (2005) (appellate review of support modification requires findings based on substantial evidence)