A California Court of Appeals has ruled that Wife’s Income and Expense Declaration was inadmissible hearsay where Wife was not present to be cross-examined at the hearing on Husband’s motion to terminate his espousal support obligation and she had filed no response. According to the Appellate Court, Trial Court abused its discretion by failing to terminate Husband’s espousal support obligation and basing its order for reduced espousal support on Wife’s Income and Expense Declaration.
In the case of In re Marriage of Swain, Husband and Wife were married in July of 1994, and separated in October of 2005. On February 13, 2007, Trial Court filed their stipulated divorce judgment which provided, among other things, that Husband would pay Wife espousal support of $2,600 per month and that Wife is expected to be self-supporting by January 2008. If she was not, the judgment provided that Trial Court could attribute $2,500 per month to her as her earning ability.
Husband filed unsuccessful motions to modify or terminate espousal support in 2008 and 2009. On December 30, 2016, Husband filed another Request For Order, seeking to terminate espousal support. In his supporting declaration, Husband stated that he was retiring and that Wife would begin receiving her share of his retirement benefits in an amount “close to the amount of espousal support” he was now paying. Wife was served on May 2, 2017, but she did not file a response or make an appearance at the hearing. Trial Court then continued the hearing to June 13, 2017, and ordered the parties to file Income and Expense Declarations at least 10 days before that date. Wife did so, but filed nothing else with the Court.
At the hearing, Husband’s attorney objected to Wife’s Income and Expense Declaration because Wife was not present to be cross-examined as to its content and had not asked that it be put into evidence. Trial Court responded “Okay. All right.” Trial Court then accepted a letter from Calpers, stating that Wife’s monthly payments from Husband’s retirement benefits were $2,630 per month, effective December 31, 2016. Husband testified about the various physical ailments that prevented him from doing his job and precipitated his retirement at age 56. Husband’s counsel then asked Trial Court if Wife’s Income and Expense Declaration would be received as evidence. Trial Court replied that the Income and Expense Declaration was filed, but “I wasn’t going to look at it.”
On June 14, 2017, Trial Court issued a Statement of Decision in which it found that Husband’s retirement was voluntary, that his medical issues did not affect his ability to earn, and that his retirement was insignificant “in light of the marital standard of living.” Trial Court also found that Husband had shown a material change of circumstances in Wife’s income, since she would be receiving the retirement payments. After considering the appropriate California Family Code Section 4320 factors (all the listed factors that the court must consider in ordering or modifying a long term espousal support), Trial Court looked to Wife’s Income and Expense Declaration to determine her need for support, noting that it was executed under penalty of perjury and could “be considered testimony,” but its weight would be limited due to Wife’s unavailability for cross-examination. Trial Court then reduced Husband’s espousal support payments to $750 per month, but declined to terminate espousal support.
Claiming that Trial Court erred by considering Wife’s Income and Expense Declaration where she was unavailable for cross-examination, Husband appealed, and now a California Court of Appeals has agreed with Husband and has reversed Trial Court’s decision. The Appellate Court has ruled that (1) Family Code Section 217 precludes Trial Court from considering Wife’s Income and Expense Declaration (it is inadmissible hearsay) where Husband sought to exclude it and Wife was not available for cross-examination; and (2) Trial Court lacked sufficient evidence to determine Wife’s need absent inadmissible Income and Expense Declaration (it had only Husband’s evidence regarding her retirement benefits). The Appellate Court has ruled that Trial Court erred by considering Wife’s Income and Expense Declaration to determine her need for support and abused its discretion by ordering any espousal support and declining to terminate support. The Appellate Court has reversed Trial Court’s support order and terminates Husband’s espousal support obligation.