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Case of the Month Archive

April 2016

Supporting declarations are not automatically admitted into evidence . . .


In partial reversal, Fourth District holds that trial court erred by failing to issue statement of decision when one was requested, to consider all applicable Fam C §4320 factors in ordering spousal support termination, and to make findings re denial of attorney’s fees


In re Marriage of Shimkus

(February 18, 2016)

California Court of Appeal 4 Civil G050323 (Div 3) 244 Cal.App.4 th 1262, 198 Cal.Rptr.3d 799, 2016 FA 1727, per Thompson, J (Bedsworth, Acting PJ and Aronson, J, concurring). Orange County: Sarmiento, J, affirmed in part, reversed in part, and remanded. For appellant: Laurel Brauer, CFLS, and Hogan Song, (949) 737-5505. For respondent: Tamara Mortensen, CFLS, and Joseph Shuff III, (714) 834-0175. CFLP §P.69.25.


Kim and Jeffrey Shimkus were divorced in September 2011 after 22 years of marriage. Their disso judgment stated that his monthly income was $9,442 and hers was $1,143. Based on those figures, the judgment ordered Jeffrey to pay spousal support of $3,000 a month to Kim. In addition, he was ordered to pay nonmodifiable spousal support of $1,100 per month, or a total of $73,752, “as a remedy to collect the equalization payment.” The judgment also divided Jeffrey’s CalPERS pension.


In October 2013, Jeffrey filed a request for an order terminating spousal support. In his supporting declaration, he stated that he was retiring from the fire department in the next 60 days due to his age (61) and his physical condition (bad back and pain from neck injuries), which meant that his income would be reduced to the $7,560 a month he would receive from his CalPERS pension payments. Moreover, Jeffrey claimed, Kim’s income had increased since she was now receiving payments from her share of that pension. Jeffrey claimed that he could no longer pay spousal support, given his retirement income. In opposition, Kim’s declaration stated that Jeffrey had told her he would not pay any future spousal support and had made his last payment in January 2014. She asked the court not to terminate her spousal support payments and to award her attorney’s fees and sanctions.


When the hearing on the requests began, the trial court told the parties that they would “be able to present ‘any and all evidence.’ ” Kim’s attorney asked the trial court to rule on her objections to Jeffrey’s declaration, but the court said it would take oral testimony and rule on objections as the questions were asked. Kim’s attorney replied “ ‘Okay.’ ” Counsel then stated that she would present some evidence “ ‘from the declarations.’ ” When Kim’s testimony concluded, the trial court asked her attorney for “ ‘[a]ny other evidence,’ ” to which counsel responded that “ ‘everything has been provided in the paperwork, your honor.’ ” During closing argument, Kim’s attorney argued that Jeffrey could not seek a spousal support termination because he was in contempt for failing to pay spousal support. The trial court then commented that there had been no finding of contempt against Jeffrey, and Kim’s attorney stated that the evidence of contempt was in Kim’s declaration. Jeffrey’s attorney argued that there was no such evidence before the court, and the trial court reminded Kim’s attorney that the testimony and the documents admitted into evidence constituted the evidence in the hearing. Kim’s counsel, however, insisted that the declarations were evidence too. The trial court then took the matter under advisement, stating that it would be looking at the pleadings and Cal Rules of Court, rule 5.111, which deals with the requirements for filing a declaration with a request for an order and with the mechanisms for objecting to its content. The court said it would also be looking at Kim’s attorney’s objections to Jeffrey’s declarations.


In an order after hearing, the trial court ruled that the declarations were “ ‘unreceived evidence’ ” but not actual evidence. It pegged Jeffrey’s post-retirement income at $7,861 per month, and Kim’s income without spousal support at $6,154 per month. The court also determined that Jeffrey’s retirement and Kim’s income from the pension plan constituted changed circumstances. Then, relying on In re Marriage of Sinks (1988) 204 Cal.App.3d 586, 251 Cal.Rptr.379, 1988 CFLR 3820, 1988 FA 342, the trial court found that the increase in Kim’s income required a dollar for dollar reduction in Jeffrey’s spousal support obligation. The court then terminated spousal support as of January 1, 2014, and ordered each party to pay his or her own attorney’s fees and costs.


Kim then filed objections to the order, asking the trial court to issue a statement of decision and findings under Fam C §4320, but the court took no action. She followed up with a motion to vacate the order. Meanwhile, Jeffrey filed proposed findings and order after hearing, to which Kim objected on the ground that they were untimely. At a hearing on the motion to vacate, the trial court stated that it did not need to issue a statement of decision because its minute order was sufficient. The court denied Kim’s motion to vacate and asked Jeffrey’s attorney to submit findings and order after hearing for its review. Counsel submitted proposed findings and order after hearing, and added findings regarding attorney’s fees, to which Kim’s attorney objected at length. Ultimately, the trial court issued an order after hearing that echoed its minute order.


Kim appealed, and the Fourth District affirmed in part, reversed in part, and remanded.


Admitted, or not . . .
Kim contended that the trial court erred by failing to treat her supporting declarations as admitted evidence. She argued that her request for orders was the same as a motion, thus a supporting declaration should be considered as an affidavit and admissible in connection with a motion. The justices didn’t agree. They reasoned that Fam C §217 requires live testimony in any hearing on a motion or OSC, unless the parties stipulate to the matter being heard on the pleadings or the trial court finds good cause for doing so. Here, the panel noted, the trial court had “made it clear the hearing would be conducted using live testimony.” Moreover, when the trial court informed Kim’s attorney that it would rule on objections as they arose in oral testimony, counsel had responded “ ‘Okay.’ ” The justices pointed out that Kim should have presented evidence from the declarations through oral testimony, or alternatively, moved to admit the declarations as evidence or stipulated to have them admitted. Summing up, the panel concluded that declarations filed with a motion or request for order are intended to give notice to the other party of the basis for the request, but are not automatically admitted as evidence.


Sufficiently clean hands . . .
The justices quickly disposed of Kim’s contention that the disentitlement doctrine should have barred Jeffrey from receiving a termination of his spousal support obligation. According to Kim, the fact that Jeffrey stopped paying spousal support some months before the hearing meant that he was in contempt and was not entitled to seek relief. The panel found no evidence that Jeffrey had stopped paying; the only mention of that was in Kim’s declarations, which it had already determined were not admitted evidence. The panel acknowledged that the lower court erred in ruling that the doctrine did not apply unless there had been a formal judgment of contempt’ per Guardianship of Melissa W. (2002) 96 Cal.App.4 th 1293, 118 Cal.Rptr.2d 42, 2002 CFLR 8995, 2002 FA 1040, no such judgment was needed. However, they concluded, even if the declarations had been admitted, it was not an abuse of discretion for the trial court to refuse to apply the disentitlement doctrine.


Ch-ch-ch-changes . . .
Kim next asserted that Jeffrey’s early retirement and her receipt of part of his pension benefits should not have been considered changes of circumstances that supported terminating his spousal support obligation. She contended that the lower court should have relied on the reasoning in In re Marriage of Dietz (2009) 176 Cal.App.4 th 387, 97 Cal.Rptr.3d 616, 2009 CFLR 1129, 2009 FA 1403, where the court found that a wife’s ability to access her share of the retirement benefits was not a change in circumstances because the parties must have anticipated that when they stipulated to the spousal support provision in their disso judgment. Again, the justices disagreed. They found that Dietz was distinguishable because here, the spousal support provision was based only on the parties’ gross monthly incomes, without considering any future payments. Moreover, the Dietz court had commented that “ ‘there might be a case’ ” in which a trial court could consider the retirement payments as additional income, the panel said, and they believed that this was such a case. Turning to Jeffrey’s retirement, the justices reasoned that per Cal. Code Regs., tit. 2, §586.1(a)(2)(C), a firefighter’s normal retirement age is 55, and Jeffrey had worked 30 years as a firefighter, and had the injuries to prove it. They saw nothing to convince them that he had retired early or could have worked longer at a desk job; the only indication of this was in Kim’s declaration, which, again, was unadmitted evidence.


Why do it? . . .
The panel, however, found that the lower court should have considered all of the factors required by Fam C §4320, not just the fact that Jeffrey had justifiably retired, before it ordered termination of spousal support. They agreed with Kim that the trial court impermissibly failed to issue a statement of decision in which it set out its reasons for ordering the termination. The trial court’s minute order, the justices found, did not suffice because neither it nor the order after hearing contained the required Fam C §4320 findings. Failure to make those findings, the panel concluded, was reversible error. The lower court also erred, the panel continued, by failing to issue findings supporting its denial of a fee award. Accordingly, the justices reversed the trial court’s order after hearing and remanded for that court to consider and apply the Fam C §4320 factors, make findings re its denial of Kim’s request for attorney’s fees, and issue a statement of decision setting out the bases for its decision. They affirmed the rest of the order.





In law, as in so many other instances, the devil is in the details; in family law, it’s the procedural details. In In re Marriage of Obrecht (elsewhere in this issue), we saw Raul Obrecht’s appeal stymied by the lack of a reporter’s transcript to support some of his allegations on appeal. Here, Kim’s opposition at trial and her appeal are similarly stymied by her attorney’s misunderstanding of the admissibility of declarations in motion proceedings. All family law attorneys, but especially those new to the practice, should make this case required reading. As we see here, it can sometimes be tricky to determine what is in evidence and what is not; after all, the trial court said it would look at all the pleadings. This opinion gives a clearly reasoned and well-explained lesson on family law procedure that will be a great help in future cases.



The justices also remind us that there are other factors besides a party’s age that can determine whether it was reasonable for him or her to retire. It will be news to many of us that a firefighter’s “ ‘normal retirement age’ ” is set by California Code Regs at 55, not 65. This brings up another point: family law attorneys should not confine their research to the Family Code. We need to ask ourselves whether there are other codes that affect our cases and be sure we’ve broadened the scope of our thinking in our cases to include things like the regs here that have the potential to trip us up. It will take a little more time, but good practice requires it.



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