Richard Anthony Pasco (Richard) appeals from a postjudgment order denying his request for an order terminating spousal support. He claims the trial court abused its discretion by denying his request on the first day of trial “without ever actually taking evidence.” Respondent Zoe Katherine Pasco (Zoe) argues the trial court acted within its discretion “in refusing to hear” oral evidence. The issue here is not whether the trial court had discretion to refuse to hear oral evidence; the issue is that the trial court denied Richard’s request without taking any evidence.
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 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. 1271.) 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. (Shimkus, at p. 1271.)
The court of appeal in In re Marriage of Binette (2018) 24 Cal.App.5 1119, held the parties’ conduct resulted in an “implicit agreement to rely on the documents submitted, unless the court directed otherwise.” (Id. at p. 1130.) The court went on to suggest, in dicta, that pursuant to the decision in Shimkus, supra, 244 Cal.App.4th 1262 at p. 1271, unless the trial court provides “clear direction” that it will only be considering oral testimony, the parties’ declarations will be automatically admitted into evidence. (Binette at p. 1130.)
The California Court of Appeal disagreed with this characterization of the holding in Shimkus. Moreover, as noted in Shimkus, this is not how the rules of evidence work: documents must be marked and subject to objections before they can be admitted into evidence. (Shimkus, supra, 244 Cal.App.4th at p. 1271; Cal. Rules of Court, rule 5.92(b)(1).)
This was an abuse of the court’s discretion. Accordingly, The California Court of Appeal reversed the court’s September 11, 2017 order and remanded the matter with directions to proceed with the previously scheduled, two day trial unless intervening circumstances or settlement have obviated the need for this trial.
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