Swain v. Swain (In re Swain)

• Decision Date: 26 March 2018
• Docket Number: B284468
• Citation: 230 Cal.Rptr.3d 614,21 Cal.App.5th 830
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE the MARRIAGE OF Sandra and Leon E. SWAIN. Sandra Swain, Respondent, v. Leon E. Swain, Appellant.

21 Cal.App.5th 830

230 Cal.Rptr.3d 614

IN RE the MARRIAGE OF Sandra and Leon E. SWAIN.

Sandra Swain, Respondent,

v.Leon E. Swain, Appellant.

B284468

Court of Appeal, Second District, Division 2, California.

Filed March 26, 2018

Law Office of John Bigler and John C. Bigler for Appellant.

No appearance for Respondent.

LUI, P.J.

Appellant Leon E. Swain (Leon) appeals from a postjudgment order denying his motion to terminate spousal support for his former wife, Sandra Swain (Sandra).¹ Sandra did not file any opposition and did not appear at the hearing on Leon's motion. She filed an income and expense declaration prior to the hearing, but did not serve it on Leon. Leon argued at the hearing that the trial court should not consider Sandra's declaration because he had no opportunity to cross-examine her about it. The trial court initially agreed, but after the hearing relied on Sandra's declaration in making its ruling.

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 should 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.

BACKGROUND

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 the amount of $2,600 per month based upon Leon's income at that time of $12,570 per month. The Stipulated Judgment stated that the court "finds that [Sandra] anticipates becoming self-supporting by January 2008. The Court finds that [Sandra] has agreed that if she is not self-supporting by January 2008 she will have an earning ability of at least $2,500 per month. The Court finds that [Sandra] agrees to use all reasonable efforts to obtain full-time employment and become self-supporting by January 2008."

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.

Sandra did not appear for the June 13 hearing. However, she did comply with the court's order to file an updated Income and Expense Declaration (Declaration). She did not file any other responsive declaration or opposition to Leon's RFO.²

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. He 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 sleep 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.

At the conclusion of the hearing, Leon's counsel asked whether the court intended to receive Sandra's Declaration. The court stated that "[i]t's filed. I have to keep it." Leon's counsel asked for clarification whether the court intended to receive the Declaration into evidence. The trial court responded, "I wasn't going to look at it."

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] is currently receiving her portion of the CalPER's retirement account in the amount of $2,630 per month. This was money which was not previously used in calculating support for [Sandra]. This would be a change of circumstances warranting a modification."

Having found a material change in circumstances, the trial court then discussed the factors it was obligated to consider under Family Code section 4320.³ The court found that the marital standard of living was $12,570 per month and Leon's income after retirement was $11,354 per month. The court calculated Sandra's income as $5,130.68 per month, consisting of "$2,500 imputed income" based upon the Stipulated Judgment and "$2,630.68 from CalPERS."

For Sandra's needs 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 court 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) 99 Cal.App.4th 1436, 122 Cal.Rptr.2d 220 in support of this finding.⁴

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."

DISCUSSION

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) 152 Cal.App.4th 240, 246, 60 Cal.Rptr.3d 858.) A change in circumstances "means a reduction or increase in the supporting spouse's ability to pay and/or an increase or decrease in the supported spouse's needs. It includes all factors affecting need and the ability to pay." ( Ibid. ) A supported spouse's receipt of additional income in the form of retirement benefits may constitute a change in circumstances. ( In re Marriage of Shimkus (2016) 244 Cal.App.4th 1262, 1274-1276, 198 Cal.Rptr.3d 799 ( Shimkus ).)

The trial court has broad discretion in deciding whether to modify a spousal support order based upon changed circumstances. ( Shimkus, supra, 244 Cal.App.4th at p. 1273, 198 Cal.Rptr.3d 799.) In exercising its discretion, the trial court considers the same criteria set forth in section 4320 as it was obligated to consider in making the initial support order.⁵ ( In re Marriage of Shaughnessy (2006) 139 Cal.App.4th 1225, 1235, 43 Cal.Rptr.3d 642.) However, a modification order must be "based on current facts and circumstances." ( In re Marriage of Sinks (1988) 204 Cal.App.3d 586, 592, 251 Cal.Rptr. 379 ( Sinks ).)

In exercising its discretion, a trial court mus...