Pasco: Spousal Support; Right to Evidentiary Hearing

In re Marriage of Pasco (Spousal Support; Right to Evidentiary Hearing)

California Court of Appeal, Third District

Published Opinion, (2019) 42 Cal.App.5th 585

File Date:
Filed 11/25/2019

In re Marriage of Pasco (Spousal Support; Right to Evidentiary Hearing), after judgment, the ex-husband wanted to terminate his spousal support obligation because he claimed his ex-wife got a job. He argued that her employment was a change in circumstances that warranted a termination of support. The family court denied his motion without hearing evidence. That ruling was reversed on appeal.

“The family court is bound by the rules of evidence. (See In re Marriage of Boblitt (2014) 223 Cal.App.4th 1004, 1022 [family proceedings governed by the same statutory rules of evidence and procedure applicable in other civil actions]; Fam. Code, § 210 [“the rules of practice and procedure applicable to civil actions generally . . . apply to, and constitute the rules of practice and procedure in, proceedings under [the Family Code]”]; Cal. Rules of Court, rule 5.2(d).)

Declarations filed in support of a request for order are intended only to give notice to the opposing party of the basis of the request. (In re Marriage of Shimkus (2016) 244 Cal.App.4th 1262, 1271 (Shimkus); Cal. Rules of Court, rule 5.92(b)(1).) They are not, as Zoe apparently assumes, automatically admitted into evidence. (Shimkus, at p.

Thus, unless the parties’ declarations are offered as evidence, marked, and subject to objections, they are not evidence the court may consider in resolving disputed factual issues.
In sum, the family court based its decision on Richard’s request for an order solely on the argument of counsel and Zoe’s unsworn statements in response to the court’s questions. The court did not consider any actual evidence. This was an abuse of the court’s discretion.”


The case listed here was not handled by Walzer Melcher unless the description states that Walzer Melcher appeared as counsel.