Pasco v. Pasco (In re Katherine)
| Decision Date | 25 November 2019 |
| Docket Number | C085721 |
| Citation | 42 Cal.App.5th 585,255 Cal.Rptr.3d 583 |
| Court | California Court of Appeals Court of Appeals |
| Parties | IN RE the MARRIAGE OF Zoe Katherine and Richard Anthony PASCO. Zoe Katherine Pasco, Respondent, v. Richard Anthony Pasco, Appellant. |
Law Office of Stephanie J. Finelli and Stephanie J. Finelli, Sacramento, for Appellant.
DOWNEY BRAND, Jay-Allen Eisen, Sacramento, Sheila W. Pendergast ; HEMMER & BARR and Jill L. Barr for Respondent.
Richard Anthony Pasco (Richard) appeals from a postjudgment order denying his request for an order terminating spousal support. He claims the trial court abused its discretion by denying his request on the first day of trial "without ever actually taking evidence." Respondent Zoe Katherine Pasco (Zoe) argues the trial court acted within its discretion "in refusing to hear" oral evidence. The issue here is not whether the trial court had discretion to refuse to hear oral evidence; the issue is that the trial court denied Richard’s request without taking any evidence. This was an abuse of the court’s discretion. Accordingly, we reverse the court’s September 11, 2017 order1 and remand the matter with directions to proceed with the previously scheduled, two-day trial unless intervening circumstances or settlement have obviated the need for this trial.
The parties were married for just over 20 years. A stipulated judgment dissolving their marriage was filed on December 19, 2014, and included the parties’ agreement for spousal support. The parties agreed Richard would pay to Zoe $2,500 each month for spousal support (plus a percentage of bonuses) and they would "review spousal support in December 2016." They also agreed "the marital standard of living has not been established" and Zoe would obtain a teaching credential for special education.
On January 4, 2017, Richard filed a request for order terminating spousal support (the request) based on Zoe’s new job and increased monthly income. Richard retained an expert who, after reviewing financial records, "indicated [Zoe] would need $3,300 per month after taxes in order to maintain the marital standard of living." A hearing was set for February 22, 2017.
Zoe opposed the request. She argued there were "several factors that the court will need to consider when conducting the evidentiary hearing on this motion." Zoe noted she was no longer receiving child support and argued, "this is a change of circumstances to which the court should take note." She had to take out a mortgage on the family home, and she disagreed with Richard’s expert on the marital standard of living so would have to retain her own expert. Zoe asked "the court [to] set this matter for an evidentiary hearing so that the court may hear evidence on the appropriate Family Code section 4320 factors." She also asked for attorney fees.
On February 22, 2017, the parties and their counsel appeared before the court on the law and motion calendar. The court set the matter for a two-day trial, as well as the mandatory settlement conference. (Super. Ct. Sacramento County, Local Rules, rule 5.28(A) [].) Prior to the mandatory settlement conference, the parties each submitted a statement of issues and contentions, along with their proposed dispositions. (Super. Ct. Sacramento County, Local Rules, rule 5.29(A) [].)
In his statement of issues and contentions, Richard continued to argue that because Zoe now had a job, she was able to meet the marital standard of living, as determined by his expert, without spousal support. In her statement of issues and contentions, Zoe argued that "[o]nce the court goes through the appropriate Marital Standard of Living analysis, it will be clear that the order for spousal support should not be terminated and it should continue as [Zoe] still needs spousal support." She said her expert did not agree with the marital standard of living reached by Richard’s expert; her expert would "testify that the standard of living was much higher."
She further argued that, although she now received a pay check, her expenses also had increased and she was no longer receiving child support. She thus claimed that "arguably, there is no substantial change in circumstances, which is required for the court to modify a spousal support order." Zoe "reserve[d] her right to fully address the factors of Family Code section 4320 in a trial brief in the event that this matter does not resolve at settlement conference."
The matter did not resolve at the mandatory settlement conference and the two-day trial was confirmed.
On the first day of trial, August 18, 2017, Zoe filed a trial brief in which she again said there was "arguably" no showing of changed circumstances and "[t]he evidence [would] demonstrate that [she] cannot maintain the standard of living based upon her earning capacity." She addressed each of the Family Code section 4320 factors and argued that "[t]he equities" weighed in favor of continuing the existing order for support. She reiterated her request for attorney fees.
At the start of trial, the court asked Zoe’s counsel, Jill Barr, to address her "threshold" argument, that there were no changed circumstances. Barr began: "My argument is that the - - when you look at the overall cash flow, there really hasn’t been a material change in circumstances." The court then engaged Barr and Zoe in a colloquy regarding Zoe’s circumstances. Barr indicated the facts they were discussing would "come out in the evidence."
The court asked Richard’s counsel, Frank Dougherty, if he wanted "to be heard." Dougherty responded:
Dougherty went on to describe the evidence he intended to present at trial. He argued it would both demonstrate changed circumstances and show Zoe could meet or exceed the marital standard of living on her own. Barr challenged Dougherty’s factual assertions as well as his conclusions. The court asked if the matter was submitted. Barr said, "Yes." Dougherty did not respond, "(No audible response.)"
The court ruled there were "no material changes in circumstances at this time to warrant a hearing on modification/termination of spousal support." The court then asked the parties to make their arguments relative to Zoe’s request for attorney fees.
Rather than respond to Zoe’s request for fees, Dougherty objected repeatedly to the court’s ruling. Dougherty argued the court was precluded from ruling on Richard’s request without first considering evidence. Dougherty asked the court to recuse itself under Code of Civil Procedure section 170.1 and send the parties back to the presiding judge for a new trial judge. Dougherty argued the court’s ruling demonstrated Richard could not get a fair hearing in this courtroom. The court asked Dougherty for authority to support his recusal motion. Dougherty responded: "In my wildest dreams I did not imagine or come prepared with case law that a judge after the issue of change of circumstances had not been raised by opposing counsel or her client.[2 ] "The Court: It’s in her motion. It’s in her brief.
The court recessed to conduct its own research, returned, and denied Dougherty’s recusal motion. Relying on Code of Civil Procedure section 170.4, subdivision (b), the court found Dougherty’s request was not properly made. The court continued to press Dougherty to limit his argument to Zoe’s request for attorney fees. Dougherty acquiesced and argued against Zoe’s request for fees.
Dougherty argued Richard incurred significant fees preparing for a trial that did not happen. The equities, therefore, dictated Richard should not be ordered to pay Zoe’s fees. The court was not persuaded and ordered Richard to pay $2,500 to Zoe for her attorney fees, reduced from her original request for fees because there was no trial.
Richard appeals from this order.
Richard contends the trial court abused its discretion by denying his request for an order terminating spousal support without considering any evidence. We agree.
Trial courts have broad discretion in deciding whether to modify a spousal support order based upon changed circumstances. ( In re Marriage of Swain (2018) 21 Cal.App.5th 830, 836, 230 Cal.Rptr.3d 614.) In exercising its discretion, however, ( Id. at pp. 836-837, 230 Cal.Rptr.3d 614.)
Here, the court found no changed circumstances but did so without considering any evidence. Zoe argues the trial court considered the evidence "before the court ... in the stipulated judgment and the income and expense declarations and fact based declarations of the parties." Zoe, however, does not include a citation to the record to support this assertion and we can find nothing in the record to support it. Indeed, the trial court was nearly silent on exactly what documents it did or did not consider in reaching its decision. There is some indication the court was looking at Zoe’s trial brief but nothing more. A...
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