Shimkus v. Shimkus (In re Shimkus)

• Citation: 198 Cal.Rptr.3d 799,244 Cal.App.4th 1262
• Decision Date: 18 February 2016
• Docket Number: G050323, G050599
• Court: California Court of Appeals
• Parties: IN RE MARRIAGE OF Kim M. and Jeffrey E. SHIMKUS. Kim M. Shimkus, Appellant, v. Jeffrey E. Shimkus, Respondent.

244 Cal.App.4th 1262

198 Cal.Rptr.3d 799

IN RE MARRIAGE OF Kim M. and Jeffrey E. SHIMKUS.Kim M. Shimkus, Appellant,

v.Jeffrey E. Shimkus, Respondent.

G050323, G050599

Court of Appeal, Fourth District, Division 3, California.

Filed February 18, 2016

Brauer Law Corporation, Laurel B. Brauer, Los Angeles and Hogan W. Song, Irvine, for Appellant.

Shuff Law Firm, Tamara Shuff Mortensen and Joseph A. Shuff III, Santa Ana, for Respondent.

OPINION

THOMPSON, J.

Appellant Kim M. Shimkus (Kim)¹ appeals from a postjudgment order granting the request of respondent Jeffrey E. Shimkus (Jeff) to terminate spousal support. She contends the court erred when it did not automatically admit declarations into evidence; failed to apply the disentitlement doctrine; found there was a change of circumstances warranting termination of spousal support; and failed to require Jeff to prove inability to work. She also claims procedural errors: the court did not provide a statement of decision, failed to set out its analysis of the factors in Family Code section 4320 (all further statutory references are to this code unless otherwise specified), and failed to make findings as to its denial of attorney fees.

We conclude the court did not err when it refused to consider the declarations that were never offered into evidence. Nor was it error to find the disentitlement doctrine did not apply. Further the court properly found a change of circumstances allowing it to consider whether support should be modified.

However, in making its decision the court was required to consider all of the section 4320 factors. We cannot determine whether it did so because it failed to issue a statement of decision. Therefore, we reverse and remand for the court to consider all of the applicable section 4320 factors, issue a statement of decision, and to make findings as to its denial of attorney fees.

FACTS AND PROCEDURAL HISTORY

The parties were married for almost 22 years before they separated. The judgment of dissolution was filed in September 2011. Jeff was ordered to pay spousal support in the sum of $3,000 per month, based on his gross monthly income of $9,442 and Kim's gross monthly income of $1,143 per month. Jeff was also ordered to pay $73,752 nonmodifiable spousal support, as a remedy to collect the equalization payment, payable at the rate of $1,100 per month (nonmodifiable support). Jeff's pensions were also divided.

In October 2013 Jeff filed a request for order (RFO)² to, among other things, terminate spousal support (support RFO). In his declaration he claimed there would be a "substantial change in circumstances" (boldface omitted) in the next 60 days when he retired from the fire department, thereby reducing his income. He was retiring at age 61 because of the physical demands of the job and would be receiving a pension through the California Public Employees' Retirement System (CalPERS) of about $7,560 per month.³ He claimed this was a significant reduction in his base monthly payment in addition to the loss of overtime. He stated that his income would be insufficient to continue to pay support.

Jeff set out Kim's income and stated he understood she had begun to draw on her portion of the CalPERS pension awarded in the judgment. He claimed, based on the reduction in his income, it would cause him substantial financial hardship if he had to continue to pay support. He further asserted Kim's increased income from the pension justified termination of support.

In opposition, Kim filed an RFO for attorney fees and sanctions (fee RFO). She stated the last support payment she received was in January 2014. In addition, Jeff had told her he would not pay any further support and had not made a payment in February 2014.

At the beginning of the hearing on the RFO's, the court stated each party would be able to present "any and all evidence." Kim's lawyer requested the court rule first on her objections to the declarations of Jeff and his counsel. The court replied it would take oral testimony and would rule on any objections made when questions were asked. Kim's attorney responded, "Okay."

In her opening statement, Kim's lawyer stated she would be presenting certain evidence "from the declarations." At the end of Kim's testimony, the court inquired of her attorney, "Any other evidence?" and counsel replied, "No, everything has been provided in the paperwork, your honor." The court did not respond.

During closing argument Kim's counsel argued Jeff was in contempt due to his failure to pay spousal support, and thus he could not seek modification of the order. The court commented it understood case law held there had to be a finding of contempt, not just an allegation, and in this case there had been no such finding. When the court stated it required evidence to such effect, Kim's lawyer responded that the evidence was in Kim's declaration in opposition to the request. Jeff's counsel countered there was no such evidence before the court.

The court stated the evidence in the hearing was the testimony and documents admitted, and "[n]othing else." Kim's lawyer argued that the declarations filed were in evidence, absent any objections.

When the court took the matter under submission, it stated it would "look at all the pleadings" and "closely at [California Rules of Court,] rule 5.111."⁴ (All further references to rules are to the California Rules of Court.) Kim's counsel confirmed the court had not ruled on her objections to the declarations filed by Jeff and his counsel and asked the court to review them, to which the judge replied he would.

In the order (Order) granting the support RFO, as to the declarations, the court ruled the only evidence was that presented by oral testimony and exhibits introduced into evidence, characterizing the declarations as "un-received evidence."

The Order terminated support as of January 1, 2014. The original judgment found Jeff's income was $9,442 and Kim's was $1,143. After payment of spousal support and the nonmodifiable support, Jeff's income was $5,342 and Kim's was $5,243.

The court further ruled:

"At the hearing the evidence showed [Jeff's] income from his retirement is $7,861. This started in January [2014]. The evidence also showed that his average income in 2013, before his retirement[,] was $19,344.

"Evidence showed [Kim's] present income was as follows: $1,083 from employment, $280 from her son's assistance,^{[5 ]}$3,691 from her pension and the $1,100 non-modifiable spousal support[;] total, without the $3,000 spousal support order, is $6,154.

"Court received evidence of two significant change of circumstance, the first [Jeff's] retirement and the second [Kim's] income from the pension plan. It can be argued that a retirement before the age of 65 does not automatically result in a modification of support. It can be argued that the retirement was done for the sole purpose of not having to pay the support. This would force the court to look at [Jeff's] ability to earn.

"In the case In re Marriage of Sinks [ ] (1988) 204 Cal.App.3d 586, 251 Cal.Rptr. 379, where[ ]in the court indicated in a case such as this the court may have look at ability to earn; but more importantly in its ruling it ordered that support should be reduced by the exact amount of increase in the supported spousal's [sic ] income, therein $241. It held, ‘[a]ccordingly, we find the trial court should have, in the proper exercise of its discretion, reduced the support level by $241. Otherwise, [the wife] will receive a $241 per month windfall at the expense of [the husband].’ p. 592 footnote 2[.]

"Following the ruling in Sinks, [Jeff's] income is irrelevant (whether it is 19, 9 or 7 thousand); the significant change in circumstances is the increase in [Kim's] income by $3,691. The proper exercise is to reduce the support dollar for dollar as in Sinks. "

This was the extent of the findings on the issue of spousal support modification. The court also ordered the parties to pay their own attorney fees and costs.

Kim filed objections to the Order. She asserted the court failed to issue a statement of decision or findings required under section 4320 and requested the court do so. The court did not take any action.

Kim then filed a motion to vacate the Order, on the same grounds on which she bases her appeal. Within a few days thereafter and before the hearing on the motion to vacate, Jeff served a proposed Findings and Order After Hearing (proposed findings). Kim responded the court had already issued its findings and an order and further that the proposed findings were untimely.

At the hearing on the motion to vacate, as to alleged failure to issue a statement of decision, the court stated its minute order was sufficient, remarking it set out the court's reasoning.

Jeff's attorney agreed the Order was proper if it added findings on attorney fees, and suggested language to that effect. Kim's lawyer countered there had been no findings on attorney fees.

The court denied the motion to vacate and asked Jeff to submit Findings and Order After Hearing (FOAH) for the court's review; counsel did so. The FOAH was filed in June and was identical to the proposed findings except for the addition of findings on attorney fees, set out in checked boxes on the attorney fees attachment to the FOAH.

Kim then filed lengthy objections, disputing the findings as to attorney fees and the marital standard of living; there was no reply from the trial court.

Additional facts are set out in the discussion.

DISCUSSION

1. Admissibility of Declarations

Kim contends the court erred in not automatically admitting the declarations filed with the RFO's and oppositions. Although she advances several theories as to why these declarations were or should have been admitted, they do not persuade.

Preliminarily, Kim never explains the harm in excluding the declarations. She does not point to evidence on which she would have relied had they been admitted or how she has been prejudiced. Under Code of Civil Procedure section 475, we...