In its statement of decision, the trial court found that Leon had shown a material change in his circumstances based on evidence that he recently retired and that Sandra is now receiving a portion of his retirement income that is roughly equal to the $2,600 per month that Leon had been paying to her in support. However, using Sandra's income and expense declaration to determine her needs, the trial court denied Leon's request to terminate support and instead decreased his monthly support obligation to $750.
We conclude that the trial court shоuld not have considered Sandra's declaration without an opportunity for cross-examination. Absent that declaration, the record contained no information about Sandra's current circumstances from which the trial court could make an assessment of the factors the trial court was required to consider in determining whether to continue spousal support. Leon met his burden to show changed circumstances, and, absent evidence of a continuing need, the trial court abused its discretion in continuing Leon's spousal support obligations. We therefore reverse.
1. The Parties' Marriage
Leon and Sandra were married in July 1994 and separated in October 2005. They had no children together. The parties stipulated to a judgment of dissolution that was filed on February 13, 2007 (Stipulated Judgment).
The Stipulated Judgment provided for spousal support from Leon to Sandra in
2. Leon's Requests to Modify or Terminate Spousal Support
In 2008 and 2009 Leon made two unsuccessful attempts to modify or terminate his support obligation. In ruling on the 2009 motion, the trial court apparently imputed to Sandra the $2,500 monthly income specified in the Stipulated Judgment, but still declined to modify Leon's support obligation.
On December 30, 2016 Leon filed a new request for order (RFO) seeking termination of spousal support. Both Leon and Sandra were 56 years old at the time of the motion. The primary basis for Leon's request was that he was retiring and Sandra would therefore begin receiving an amount from her portion of his retirement benefits that was close to the amount of spousal support Leon had been paying.
After one continuance, the RFO came on for hearing on May 2, 2017. Sandra was served with Leon's RFO papers in advance of the hearing. However, she did not appear and did not file any responsive declaration. The court ordered the hearing continued to June 13, 2017 and ordered the parties to file "updated Income and Expense Declarations (FL-150), no later than 10 court days prior to the ... hearing date." The court ordered Leon to provide notice of the court's order, which he did by mail on May 4, 2017. Leon filed the notice on May 8, 2017.
Leon's counsel saw Sandra's Declaration for the first time at the hearing. He objected to the Declaration, raising Leon's due process rights and his right to cross-examine Sandra. Hе also pointed out that Sandra was "not here to ask to put it into evidence." In response to his objections, the trial court stated "Okay. All right."
The trial court received into evidence a letter to Leon from the California Public Employees' Retirement System (CalPERS) dated February 22, 2017. The letter stated that, effective December 31, 2016, Sandra's monthly allowance from Leon's service retirement was $2,630.68.
Leon testified to various health problems that he said contributed to his decision to retire from his position as the City Engineer for the City of Santa Monica. Those problems included sleeр apnea, a hip replacement, pain in his other hip, and plantar fasciitis leading to pain and numbness in a foot. He testified that these conditions affected his ability to perform his job duties, which included walking around jobsites.
3. The Trial Court's Statement of Decision
The trial court filed its Statement of Decision on June 14, 2017. The court rejected Leon's argument that the reduction in his income due to his retirement was a material change in circumstances, finding that the amount of the reduction was not significant in light of the marital standard of living. The court also found that Leon retired voluntarily and that his medical issues did not affect his earning potential.
However, the trial court found that Leon "has demonstrated a material change in circumstances with respect to [Sandra's] income. Namely, [Sandra]
Having found a material change in circumstances, the trial court then discussed the factors it was obligated to consider under Family Code section 4320.
For Sandra's nеeds and her obligations and assets, the trial court relied on her Declaration. The court noted that Leon "sought to have the Court exclude this document." However, the court concluded that "[t]he document is submitted under the penalty of perjury and can be considered testimony by the Court. However, the weight that the Court gives the document will be limited given the fact that [Sandra] is not subject to cross-examination."
In addition to the factors identified in section 4320, the trial court also considered evidence that Leon's "new spouse has income of approximately $16,000 per month." The сourt observed that, "[t]hough this is not a basis for or [sic ] denying a support modification, the Court can consider what expenses are reasonably based on the supported obligor's net monthly income." The court cited In re Marriage of Romero (2002)
The court concluded that, after reviewing all "the evidence, tax consequences, the Parties['] marital standard of living both pre and post separation, the Court, after balancing the equities and requirements of Section 4320 as stated above, Orders that [Leon] shall pay to [Sandra] the sum of $750.00 per month ...." The court declined to make the order retroactive to the date the motion was filed, "as no evidence was presented as to when the income from CalPERS was received by [Sandra]. As such, the Court will assume that it began on the date of her filing of her Income and Expense Declaration."
1. The Legal Standard on a Motion to Terminate Spousal Support
A party moving to modify or terminate spousal support has the burden to show a material change in circumstances. ( In re Marriage of West (2007)
The trial court has broad discretion in deciding whether to modify a spousal support order based upon changed circumstances. ( Shimkus, supra,
In exercising its discretion, a trial court must "follоw established legal principles and base its findings on substantial evidence." ( In re Marriage of Schmir (2005)
2. The Trial Court Improperly Considered Sandra's Income and Expense Declaration Over Leon's Objection
Leon objected to Sandra's Declaration on the ground that she was not present and he therefore could not cross-examine her about it. On appeal, Leon claims that the Declaration was inadmissible under section 217. Leon argues that section 217
We agree that section 217, when considered in light of its legislative history and the case law leading tо its adoption, precludes reliance on inadmissible hearsay over a party's objection (subject to the good cause provision of section 217, subdivision (b)), at least where the party has no opportunity for cross-examination. The trial court therefore erred in considering the Declaration over Leon's objection.
a. Interpretation of section 217
A trial court's decision about the admissibility of evidence is ordinarily reviewed under the abuse of discretion standard. However, when the issue is one of law, a de novo standard applies. ( Children's Hospital Central California v. Blue Cross of California (2014)
Section 217 states that it applies to hearings "on any order to show cause or notice of motion brought pursuant to this code," (i.e., Family Code). It provides that, "absent a stipulation of the parties or a finding of good cause pursuant to subdivision (b), the court shall receive any live, competent testimony that is relevant and within the scope of the hearing." (Id ., subd. (a).)
On its face, the section addresses the admissibility of live testimony, not the inadmissibility of written testimony. However, the two issues are obviously related. The evidentiary rules concerning both issues must tаke account of the superior probative value of live testimony, which provides an opportunity to assess witness credibility and to understand and test the foundation for
Because section 217 does not directly address the admissibility of written declarations, in interpreting the section we may "resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history." ( Day v. City of Fontana (2001)
b. History of the section
The history of section 217 and the case law that preceded it reflect a concern for the value of live testimony rather than deciding substantive motions based upon competing declarations.
The Legislature adopted section 217 in response to our Supreme Court's holding in Elkins . In that case, the court considered a local procedure that required parties in family law cases to present their cases through written declarations. Live direct testimony was permitted only in " 'unusual circumstances,' although upon request parties were permitted to cross-examine declarants." ( Elkins, supra,
The petitioner in Elkins represented himself in a dissolution trial. He was effectively left without a сase when the trial court concluded that the declaration he had filed failed to establish an evidentiary basis for most of the exhibits he wished to introduce and he was precluded by the local procedure from offering his own oral testimony at trial. (
The petitioner filed a petition for writ of mandate or prohibition challenging the local procedure, which the Court of Appeal summarily denied. ( Elkins, supra,
Following Elkins, and at the suggestion of the Supreme Court in that case, the Judicial Council of California established the "Elkins Family Law Task Force" (Task Force) that undertook to "study and propose measures to assist trial courts in achieving efficiency and fairness in marital dissolution proceedings and to ensure access to justice for litigants, many of whom [were] self-represented." ( Elkins, supra,
The Task Force's final report noted that " Reifler has been widely interpreted to allow broad judicial discretion about whether or not to take live testimony at hearings on requests for orders or simply make decisions based solely on the supporting declarations." (Elkins Report, supra , p. 27.) However, many family law motions concern "substantive relief regarding the fundamental issues in controversy"
The Legislature subsequently included this recommended language almost verbatim in the 2010 bill that established section 217, subdivision (a).
Based on this history, it is reasonable to conclude that, in enacting section 217, subdivision (a), the Legislature intended to abrogate the distinction the court made in Elkins between marital dissolution trials and family law motions that do not result in a judgment. (See Elkins, supra,
Several cases have noted the effect of section 217 on the holding in Elkins without deciding the scope of that section's changes to the evidentiary rules applicable to post-judgment proceedings. In Chalmers v. Hirschkop (2013)
In Shimkus , supra,
The court's holding in Shimkus was based on the ex-wife's failure to introduce her declaration into evidence. ( Shimkus, supra,
Thus, none of the published cases interpreting section 217 has squarely decided that section 217 completely abrogated the hearsay exception in Code of Civil Procedure section 2009 for substantive family law motions.
c. Sandra's Declaration was inadmissible under section 217.
In this case, we also need not answer the general question whether section 217 makes written declarations submitted in connection with family law motions subject to the hearsay rule in every case. We conclude that, at a minimum, the hearsay exception in Code of Civil Procedure section 2009 does not apply to a motion to modify a family law judgment where, as here, the opposing party seeks to exclude the declaration on the ground that he or she is unable to cross-examine the declarant. In that situation, the opposing party's objection not only seeks to exclude hearsay evidence, but also amounts to an assertion of the party's right under section 217 to "live, competent testimony that is relevant and within the scope of the hearing." (Id ., subd. (a).) The opposing party's live testimony is necessary for cross-examination.
The lack of an opportunity to cross-examine the declarant deprives the opposing party of important evidence concerning the credibility of the
In Fost , the court held that the remedy for a defense witness's refusal to answer a prosecutor's cross-examination questions on the basis of the newsperson's "shield law" ( Cal. Const., art. I, § 2, subd. (b); Evid. Code, § 1070 ) was to strike the
The same rule applies here. Under section 217, absent a stipulation or a finding of good cause, Leon had a right to any live testimony that was "relevant and within the scope of the hearing." (§ 217, subd. (a).) Such live testimony included the opportunity to cross-examine Sandra concerning statements in her Declaration on which the trial court might rely. The proper remedy for the absence of an opportunity for cross-examination was to exclude her written declaration from evidence.
Leon objected to the admission of Sandra's declaration, and the trial court did not find good cause to consider the declaration in lieu of live testimony. To the contrary: the trial court gave every indication at the hearing that it intended not to consider the declaration in issuing its ruling. The court therefore erred in relying on the declaration in its Statement of Decision.
In the absence of Sandra's declaration, the only evidence beforе the trial court was Leon's testimony and exhibits showing the changed circumstances resulting from his retirement. The trial court found that Leon had demonstrated a material change in circumstances due to Sandra's receipt of her portion of the CalPERS retirement account. (See Shimkus, supra,
In contrast to this evidence of Leon's changed circumstances, there was nothing in the record concerning Sandra's current financial situation, including her employment status and prospects. (See Sinks, supra,
On this record, it was error for the trial court to continue Leon's support obligation. The uncontradicted evidence established that Sandra had begun receiving more from her portion of Leon's retirement benefits than he had previously been paying in spousal support. (See Sinks, supra, 204 Cal.App.3d at pp. 591-592, fn. 2,
The trial court's order is reversed. Leon's spousal support obligation is terminated.
In the interests of justice Leon is responsible for his own costs on appeal, in light of Sandra's lack of opposition to Leon's motion below and on appeal.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.
Notes
We use the parties' first names for clarity. No disrespect is intended.
Sandra also did not file a respondent's brief on this appeal. We nevertheless examine Leon's arguments in light of the record and the applicable law. (See Cal. Rules of Court, rule 8.220(a)(2) ; Kennedy v. Eldridge (2011)
Subsequent undesignated statutory references are to the Family Code.
Leon argues on appeal that this finding was improper. In light of our disposition, we need not reach this issue.
Section 4320 requires the court to consider the following factors in ordering spousal support: (1) the extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage; (2) the extent to which the supported party's present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties; (3) the ability of the supporting party to pay spousal support; (4) the needs of each party based on the marital standard of living; (5) the obligations and assets of each party; (6) the duration of the marriage; (7) the ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the other party; (8) the age and health of the parties; (9) any history of domestic violence; (10) the immediate and specific tax consequences; (11) the balance of hardships to each party; (12) the goal that the supported party be self-supporting within a reasonable period of time; (13) any criminal conviction of an abusive spouse; and (14) "[a]ny other factors the court determines are just and equitable." (§ 4320, subds. (a) -(n).)
"[E]xcept as otherwise provided by statute or rule adopted by the Judicial Council, 'the rules of practice and procedure applicable to civil actions generally ... apply to, and constitute the rules of practice and procedure in, proceedings under [the Family Code].' " (Elkins, supra,
Unlike the Task Force's recommendation, section 217, subdivision (a) does not specifically refer to a hearing on a "request for order." (Elkins Report, supra , p. 29.) However, under California Rules of Court, rule 5.92, "[t]he term 'request for order' has the same meaning as the terms 'motion' or 'notice of motion' when they are used in the Code of Civil Procedure." (Id ., (a)(1)(A).) Moreover, California Rules of Court, rule 5.113, which describes the factors a court must consider in determining whether good cause exists to refuse to receive live testimony, specifically states that section 217 applies to a hearing on "any request for order brought under the Family Code." (Cal. Rules of Court, rule 5.113(a).) Thus, there is no question that section 217 applied to the hearing on Leon's request for an order terminating his spousal support obligation.
In a criminal case, the remedy for a defense witness's refusal to answer cross-examination questions on the basis of privilege is for the defendant to seek an order compelling the witness to testify on cross-examination to avoid having the witness's direct testimony stricken. (See Fost, supra, 80 Cal.App.4th at pp. 737-738,
In light of our holding that the Declaration was inadmissible, we need not consider Leon's argument that the trial court's consideration of that declaration after stating that it would not do so amounted to an improper independent judicial investigation.
Indeed, as Leon emphasizes, there was nothing in the record before the trial court showing that Sandra even requested a continuation of spousal support.
The trial court's Statement of Decision was incorrect in referring to "testimony" other than Sandra's inadmissible income and expense declaration concerning her current needs. Sandra did not testify and Leon's testimony did not include any information about Sandra's current financial situation.