Family Law: $2,500 Fee Award Reversed For Abuse Of Discretion

Trial Court Failed To Consider Any Actual Evidence And Based Its Decision Solely On Argument Of Counsel and Unsworn Statements.

            In Marriage of Pasco, Case No. C085721 (3d Dist., November 25, 2019) (published), husband requested an order terminating spousal support based on wife’s new job and increased monthly income.  To support his request, husband hired an expert to review financial records to determine the monthly amount wife would need to maintain the marital standard of living. 

            Wife opposed husband’s request, retained her own expert, and made a request for attorney fees.  The court set the matter for a two-day trial.  On the first day of trial, the trial court found no changed circumstances warranting an order terminating spousal support, but did so without considering any evidence.  Rather, the trial court listened to arguments from counsel, and may have reviewed wife’s trial brief and the parties’ declarations which were never entered into evidence.  In addition to denying husband’s request to terminate spousal support, the trial court also awarded wife $2,500 in attorney fees. 

            Husband appealed – arguing that the trial court abused its discretion by denying his request “without ever actually taking evidence.”  Wife opposed – arguing that the trial court acted within its discretion in refusing to hear oral evidence.

            The Third District, in disagreement with wife's contention, reversed and remanded with direction to proceed with the previously scheduled two-day trial barring any settlement or circumstances negating the need for the trial.  Citing In re Marriage of Swain (2018) 21 Cal.App.5^th 30, 836-837, the Third District concluded that while trial courts have broad discretion in deciding whether to modify a spousal support order, findings must be based on substantial evidence – something not done here.  The appellate court went on to add that the trial court was precluded from relying on the parties’ declarations which had not been admitted into evidence because a prima facie showing of changed circumstances existed based on husband’s declarations at trial (In re Marriage of Boblitt (2014) 223 Cal.App.4^th 1004, 1022), and that it was further precluded from relying on unsworn statements of either party and on argument of counsel pursuant to In re Heather H. (1988) 200 Cal.App.3d 91, 95; People v. Superior Court (Crook) (1978) 83 Cal.App.3d 335, 342; and California State Bar Rules of Professional Conduct, Rule 3.4(g).