Filed 3/26/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

In re the Marriage of SANDRA and 

LEON E. SWAIN.

__________________________________

SANDRA SWAIN,

Respondent,

v.

LEON E. SWAIN,

Appellant.

 B284468

 (Los Angeles County

 Super. Ct. No. MD031102)

APPEAL from an order of the Superior Court of 

Los Angeles County. Scott Nord, Commissioner. Reversed.

Law Office of John Bigler and John C. Bigler for Appellant.

No appearance for Respondent.

_____________________________________
Appellant Leon E. Swain (Leon) appeals from a postjudgment order denying his motion to terminate spousal support

for his former wife, Sandra Swain (Sandra).1 Sandra did not file 

any opposition and did not appear at the hearing on Leon’s 

motion. She filed an income and expense declaration prior to the 

hearing, but did not serve it on Leon. Leon argued at the hearing 

that the trial court should not consider Sandra’s declaration 

because he had no opportunity to cross-examine her about it. 

The trial court initially agreed, but after the hearing relied on 

Sandra’s declaration in making its ruling. 

In its statement of decision, the trial court found that Leon 

had shown a material change in his circumstances based on

evidence that he recently retired and that Sandra is now 

receiving a portion of his retirement income that is roughly equal 

to the $2,600 per month that Leon had been paying to her in 

support. However, using Sandra’s income and expense 

declaration to determine her needs, the trial court denied Leon’s 

request to terminate support and instead decreased his monthly 

support obligation to $750. 

We conclude that the trial court should not have considered

Sandra’s declaration without an opportunity for crossexamination. Absent that declaration, the record contained no 

information about Sandra’s current circumstances from which 

the trial court could make an assessment of the factors the trial 

court was required to consider in determining whether to 

continue spousal support. Leon met his burden to show changed 

circumstances, and, absent evidence of a continuing need, the 

1 We use the parties’ first names for clarity. No disrespect is 

intended. 

2
trial court abused its discretion in continuing Leon’s spousal 

support obligations. We therefore reverse. 

BACKGROUND

1. The Parties’ Marriage

Leon and Sandra were married in July 1994 and separated 

in October 2005. They had no children together. The parties 

stipulated to a judgment of dissolution that was filed on February 

13, 2007 (Stipulated Judgment). 

The Stipulated Judgment provided for spousal support 

from Leon to Sandra in the amount of $2,600 per month based 

upon Leon’s income at that time of $12,570 per month. The 

Stipulated Judgment stated that the court “finds that [Sandra] 

anticipates becoming self-supporting by January 2008. The 

Court finds that [Sandra] has agreed that if she is not selfsupporting by January 2008 she will have an earning ability of at 

least $2,500 per month. The Court finds that [Sandra] agrees to 

use all reasonable efforts to obtain full-time employment and 

become self-supporting by January 2008.” 

2. Leon’s Requests to Modify or Terminate Spousal 

Support

In 2008 and 2009 Leon made two unsuccessful attempts to 

modify or terminate his support obligation. In ruling on the 2009 

motion, the trial court apparently imputed to Sandra the $2,500 

monthly income specified in the Stipulated Judgment, but still 

declined to modify Leon’s support obligation. 

On December 30, 2016 Leon filed a new request for order 

(RFO) seeking termination of spousal support. Both Leon and 

Sandra were 56 years old at the time of the motion. The primary 

basis for Leon’s request was that he was retiring and Sandra 

would therefore begin receiving an amount from her portion of 

3
his retirement benefits that was close to the amount of spousal

support Leon had been paying. 

After one continuance, the RFO came on for hearing on 

May 2, 2017. Sandra was served with Leon’s RFO papers in 

advance of the hearing. However, she did not appear and did not 

file any responsive declaration. The court ordered the hearing 

continued to June 13, 2017 and ordered the parties to file 

“updated Income and Expense Declarations (FL-150), no later 

than 10 court days prior to the . . . hearing date.” The court 

ordered Leon to provide notice of the court’s order, which he did 

by mail on May 4, 2017. Leon filed the notice on May 8, 2017. 

Sandra did not appear for the June 13 hearing. However, 

she did comply with the court’s order to file an updated Income 

and Expense Declaration (Declaration). She did not file any 

other responsive declaration or opposition to Leon’s RFO.2 

Leon’s counsel saw Sandra’s Declaration for the first time 

at the hearing. He objected to the Declaration, raising Leon’s due 

process rights and his right to cross-examine Sandra. He also 

pointed out that Sandra was “not here to ask to put it into 

evidence.” In response to his objections, the trial court stated 

“Okay. All right.” 

The trial court received into evidence a letter to Leon from 

the California Public Employees’ Retirement System (CalPERS) 

2 Sandra also did not file a respondent’s brief on this appeal. 

We nevertheless examine Leon’s arguments in light of the record 

and the applicable law. (See Cal. Rules of Court, rule 8.220(a)(2); 

Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197, 1203 [“we do 

not treat the failure to file a respondent’s brief as a ‘default’ (i.e., 

an admission of error) but independently examine the record and 

reverse only if prejudicial error is found”].)

4
dated February 22, 2017. The letter stated that, effective 

December 31, 2016, Sandra’s monthly allowance from Leon’s 

service retirement was $2,630.68. 

Leon testified to various health problems that he said 

contributed to his decision to retire from his position as the City 

Engineer for the City of Santa Monica. Those problems included 

sleep apnea, a hip replacement, pain in his other hip, and plantar 

fasciitis leading to pain and numbness in a foot. He testified that 

these conditions affected his ability to perform his job duties, 

which included walking around jobsites. 

At the conclusion of the hearing, Leon’s counsel asked 

whether the court intended to receive Sandra’s Declaration. The 

court stated that “[i]t’s filed. I have to keep it.” Leon’s counsel 

asked for clarification whether the court intended to receive the 

Declaration into evidence. The trial court responded, “I wasn’t 

going to look at it.” 

3. The Trial Court’s Statement of Decision

The trial court filed its Statement of Decision on June 14, 

2017. The court rejected Leon’s argument that the reduction in 

his income due to his retirement was a material change in 

circumstances, finding that the amount of the reduction was not 

significant in light of the marital standard of living. The court 

also found that Leon retired voluntarily and that his medical 

issues did not affect his earning potential. 

However, the trial court found that Leon “has 

demonstrated a material change in circumstances with respect to 

[Sandra’s] income. Namely, [Sandra] is currently receiving her 

portion of the CalPER’s retirement account in the amount of 

$2,630 per month. This was money which was not previously 

5
used in calculating support for [Sandra]. This would be a change 

of circumstances warranting a modification.” 

Having found a material change in circumstances, the trial 

court then discussed the factors it was obligated to consider 

under Family Code section 4320.3 The court found that the 

marital standard of living was $12,570 per month and Leon’s 

income after retirement was $11,354 per month. The court 

calculated Sandra’s income as $5,130.68 per month, consisting of 

“$2,500 imputed income” based upon the Stipulated Judgment

and “$2,630.68 from CalPERS.” 

For Sandra’s needs and her obligations and assets, the trial 

court relied on her Declaration. The court noted that Leon 

“sought to have the Court exclude this document.” However, the 

court concluded that “[t]he document is submitted under the 

penalty of perjury and can be considered testimony by the Court. 

However, the weight that the Court gives the document will be 

limited given the fact that [Sandra] is not subject to crossexamination.” 

In addition to the factors identified in section 4320, the 

trial court also considered evidence that Leon’s “new spouse has 

income of approximately $16,000 per month.” The court observed 

that, “[t]hough this is not a basis for or [sic] denying a support 

modification, the Court can consider what expenses are 

reasonably based on the supported obligor’s net monthly income.” 

3 Subsequent undesignated statutory references are to the 

Family Code. 

6
The court cited In re Marriage of Romero (2002) 99 Cal.App.4th 

1436 in support of this finding.4

The court concluded that, after reviewing all “the evidence, 

tax consequences, the Parties[

’

] marital standard of living both 

pre and post separation, the Court, after balancing the equities 

and requirements of Section 4320 as stated above, Orders that 

[Leon] shall pay to [Sandra] the sum of $750.00 per month . . . .” 

The court declined to make the order retroactive to the date the 

motion was filed, “as no evidence was presented as to when the 

income from CalPERS was received by [Sandra]. As such, the 

Court will assume that it began on the date of her filing of her 

Income and Expense Declaration.” 

DISCUSSION

1. The Legal Standard on a Motion to Terminate 

Spousal Support

A party moving to modify or terminate spousal support has 

the burden to show a material change in circumstances. (In re 

Marriage of West (2007) 152 Cal.App.4th 240, 246.) A change in 

circumstances “means a reduction or increase in the supporting 

spouse’s ability to pay and/or an increase or decrease in the 

supported spouse’s needs. It includes all factors affecting need 

and the ability to pay.” (Ibid.) A supported spouse’s receipt of 

additional income in the form of retirement benefits may 

constitute a change in circumstances. (In re Marriage of Shimkus 

(2016) 244 Cal.App.4th 1262, 1274-1276 (Shimkus).) 

The trial court has broad discretion in deciding whether to 

modify a spousal support order based upon changed 

4 Leon argues on appeal that this finding was improper. In 

light of our disposition, we need not reach this issue. 

7
circumstances. (Shimkus, supra, 244 Cal.App.4th at p. 1273.) In 

exercising its discretion, the trial court considers the same 

criteria set forth in section 4320 as it was obligated to consider in 

making the initial support order.5 (In re Marriage of 

Shaughnessy (2006) 139 Cal.App.4th 1225, 1235.) However, a 

modification order must be “based on current facts and 

circumstances.” (In re Marriage of Sinks (1988) 204 Cal.App.3d 

586, 592 (Sinks).) 

In exercising its discretion, a trial court must “follow 

established legal principles and base its findings on substantial 

evidence.” (In re Marriage of Schmir (2005) 134 Cal.App.4th 43, 

47.) “If the trial court conforms to these requirements its order 

5 Section 4320 requires the court to consider the following 

factors in ordering spousal support: (1) the extent to which the 

earning capacity of each party is sufficient to maintain the 

standard of living established during the marriage; (2) the extent 

to which the supported party’s present or future earning capacity 

is impaired by periods of unemployment that were incurred 

during the marriage to permit the supported party to devote time 

to domestic duties; (3) the ability of the supporting party to pay 

spousal support; (4) the needs of each party based on the marital 

standard of living; (5) the obligations and assets of each party; (6) 

the duration of the marriage; (7) the ability of the supported 

party to engage in gainful employment without unduly 

interfering with the interests of dependent children in the 

custody of the other party; (8) the age and health of the parties; 

(9) any history of domestic violence; (10) the immediate and 

specific tax consequences; (11) the balance of hardships to each 

party; (12) the goal that the supported party be self-supporting 

within a reasonable period of time; (13) any criminal conviction of 

an abusive spouse; and (14) “[a]ny other factors the court 

determines are just and equitable.” (§ 4320, subds. (a)-(n).) 

8
will be upheld whether or not the appellate court agrees with it 

or would make the same order if it were a trial court.” (Ibid.). 

However, “a court abuses its discretion if its findings are wholly 

unsupported, since a consideration of the evidence ‘is essential to 

a proper exercise of judicial discretion.’ ” (In re Marriage of 

Ackerman (2006) 146 Cal.App.4th 191, 197, quoting Johns v. City 

of Los Angeles (1978) 78 Cal.App.3d 983, 998.) 

2. The Trial Court Improperly Considered Sandra’s 

Income and Expense Declaration Over Leon’s 

Objection

Leon objected to Sandra’s Declaration on the ground that 

she was not present and he therefore could not cross-examine her 

about it. On appeal, Leon claims that the Declaration was 

inadmissible under section 217. Leon argues that section 217 

requires live testimony on a post-judgment motion absent a 

stipulation or a showing of good cause. He also argues that the 

trial court’s reliance on the Declaration after the court stated at 

the hearing that it would not consider it amounted to an 

improper independent investigation by the court.

We agree that section 217, when considered in light of its 

legislative history and the case law leading to its adoption, 

precludes reliance on inadmissible hearsay over a party’s 

objection (subject to the good cause provision of section 217, 

subdivision (b)), at least where the party has no opportunity for 

cross-examination. The trial court therefore erred in considering 

the Declaration over Leon’s objection. 

9
a. Interpretation of section 217

A trial court’s decision about the admissibility of evidence 

is ordinarily reviewed under the abuse of discretion standard. 

However, when the issue is one of law, a de novo standard 

applies. (Children’s Hospital Central California v. Blue Cross of 

California (2014) 226 Cal.App.4th 1260, 1277.) Here, the 

interpretation of section 217 is an issue of law, and we therefore 

apply the de novo standard of review. 

Section 217 states that it applies to hearings “on any order 

to show cause or notice of motion brought pursuant to this code,” 

(i.e., Family Code). It provides that, “absent a stipulation of the 

parties or a finding of good cause pursuant to subdivision (b), the 

court shall receive any live, competent testimony that is relevant 

and within the scope of the hearing.” (Id., subd. (a).) 

On its face, the section addresses the admissibility of live 

testimony, not the inadmissibility of written testimony. 

However, the two issues are obviously related. The evidentiary 

rules concerning both issues must take account of the superior 

probative value of live testimony, which provides an opportunity 

to assess witness credibility and to understand and test the 

foundation for a witnesses’ statements. “Ordinarily, written 

testimony is substantially less valuable for the purpose of 

evaluating credibility.” (Elkins v. Superior Court (2007) 41 

Cal.4th 1337, 1358 (Elkins).) 

Because section 217 does not directly address the 

admissibility of written declarations, in interpreting the section 

we may “resort to extrinsic sources, including the ostensible 

objects to be achieved and the legislative history.” (Day v. City of 

Fontana (2001) 25 Cal.4th 268, 272.)

10
b. History of the section

The history of section 217 and the case law that preceded it 

reflect a concern for the value of live testimony rather than 

deciding substantive motions based upon competing declarations. 

The Legislature adopted section 217 in response to our 

Supreme Court’s holding in Elkins. In that case, the court 

considered a local procedure that required parties in family law 

cases to present their cases through written declarations. Live 

direct testimony was permitted only in “ ‘unusual circumstances,’ 

although upon request parties were permitted to cross-examine 

declarants.” (Elkins, supra, 41 Cal.4th at p. 1344.) 

The petitioner in Elkins represented himself in a 

dissolution trial. He was effectively left without a case when the 

trial court concluded that the declaration he had filed failed to 

establish an evidentiary basis for most of the exhibits he wished 

to introduce and he was precluded by the local procedure from 

offering his own oral testimony at trial. (Elkins, supra, 41 

Cal.4th at pp. 1344-1345.) The trial court consequently “divided 

the marital property substantially in the manner requested by 

petitioner’s former spouse.” (Id. at p. 1345.)

The petitioner filed a petition for writ of mandate or 

prohibition challenging the local procedure, which the Court of 

Appeal summarily denied. (Elkins, supra, 41 Cal.4th at p. 1350.) 

Our Supreme Court reversed. The court held that the local 

procedure was inconsistent with statutory provisions governing 

civil trials. The court concluded that, “pursuant to state law, 

marital dissolution trials proceed under the same general rules of 

procedure that govern other civil trials.” (Id. at p. 1345.) Under 

those rules, “[w]ritten testimony in the form of a declaration 

constitutes hearsay and is subject to statutory provisions 

11
governing the introduction of such evidence.” (Ibid.) The court 

held that the local rule and order implementing the declaration 

procedure were “inconsistent with the hearsay rule to the extent 

they render written declarations admissible as a basis for 

decision in a contested marital dissolution trial.” (Id. at p. 1356.) 

In reaching that holding, the court distinguished a marital 

dissolution trial from motions that do not result in a judgment. 

The court noted that Code of Civil Procedure section 2009 

provides a “statutory exception to the hearsay rule” that “permits 

courts to rely upon affidavits in certain motion matters.” (Elkins, 

supra, 41 Cal.4th at p. 1355.)6 The court cited Reifler v. Superior 

Court (1974) 39 Cal.App.3d 479, in which the court upheld a 

Los Angeles Superior Court policy of deciding long-cause postjudgment motions in family law matters on affidavits. The court 

in Reifler decided that Code of Civil Procedure section 2009 

establishes a hearsay exception that provides trial courts with 

discretion to decide family law motions on affidavits so long as 

they do not involve fact-finding that results in a judgment. 

(Reifler, at pp. 484-485; Elkins, at p. 1355.) 

Following Elkins, and at the suggestion of the Supreme 

Court in that case, the Judicial Council of California established 

the “Elkins Family Law Task Force” (Task Force) that undertook 

to “study and propose measures to assist trial courts in achieving 

efficiency and fairness in marital dissolution proceedings and to 

6 “[E]xcept as otherwise provided by statute or rule adopted 

by the Judicial Council, ‘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].’ ” (Elkins, supra, 41 Cal.4th at p. 1354, quoting 

§ 210.) 

12
ensure access to justice for litigants, many of whom [were] selfrepresented.” (Elkins, supra, 41 Cal.4th at p. 1369, fn. 20; 

Judicial Council of Cal., Elkins Family Law Task Force, Final 

Report and Recommendations (Apr. 2010) p. 9, at 

<http://www.courts.ca.gov/elkins.htm> [as of Mar. 26, 2018]

(Elkins Report).) One of the Task Force’s recommendations 

concerned the right to present live testimony at hearings. 

The Task Force’s final report noted that “Reifler has been 

widely interpreted to allow broad judicial discretion about 

whether or not to take live testimony at hearings on requests for 

orders or simply make decisions based solely on the supporting 

declarations.” (Elkins Report, supra, p. 27.) However, many 

family law motions concern “substantive relief regarding the 

fundamental issues in controversy” and are therefore different 

from “purely procedural motions, such as those occurring in civil 

litigation.” (Id. at pp. 27-28.) The Task Force concluded that the 

significance of many family law orders, including support orders, 

is “not necessarily determined by whether those orders were 

granted at a hearing before a trial, based upon a trial or agreedupon judgment, or at a hearing to modify that judgment.” (Id. at 

p. 28.) Consequently, the Task Force recommended a rule 

requiring that, “[a]t the hearing on any order to show cause or 

notice of motion (or request for order) brought pursuant to the 

Family Code, absent a stipulation of the parties or a finding of 

good cause, the judge must receive any live, competent testimony 

that is relevant and within the scope of the hearing and may ask 

questions of the parties.” (Id. at pp. 28-29.) 

The Legislature subsequently included this recommended 

language almost verbatim in the 2010 bill that established 

13
section 217, subdivision (a).7 The legislative history of the section 

confirms that the Legislature intended to implement the Task 

Force recommendations. (See Sen. Com. On Judiciary, Analysis 

of Assem. Bill No. 939 (2009-2010 Reg. Sess.) as amended June 

17, 2010, p. 1 [“This bill would make various changes to family 

law proceedings thereby implementing a number of the 

legislative recommendations issued by the Elkins Family Law 

Task Force”].) 

Based on this history, it is reasonable to conclude that, in 

enacting section 217, subdivision (a), the Legislature intended to 

abrogate the distinction the court made in Elkins between 

marital dissolution trials and family law motions that do not 

result in a judgment. (See Elkins, supra, 41 Cal.4th at p. 1355.) 

This raises the question whether the holding in Reifler remains 

valid, or whether the exception to the hearsay rule in Code of 

Civil Procedure section 2009 no longer applies at all to the use of 

declarations for family law motions that seek “substantive relief 

7 Unlike the Task Force’s recommendation, section 217, 

subdivision (a) does not specifically refer to a hearing on a 

“request for order.” (Elkins Report, supra, p. 29.) However, 

under California Rules of Court, rule 5.92, “[t]he term ‘request for 

order’ has the same meaning as the terms ‘motion’ or ‘notice of 

motion’ when they are used in the Code of Civil Procedure.” (Id., 

(a)(1)(A).) Moreover, California Rules of Court, rule 5.113, which 

describes the factors a court must consider in determining 

whether good cause exists to refuse to receive live testimony, 

specifically states that section 217 applies to a hearing on “any 

request for order brought under the Family Code.” (Cal. Rules of 

Court, rule 5.113(a).) Thus, there is no question that section 217 

applied to the hearing on Leon’s request for an order terminating

his spousal support obligation. 

14
regarding the fundamental issues in controversy.” (See Elkins 

Report, supra, at p. 27.)

Several cases have noted the effect of section 217 on the 

holding in Elkins without deciding the scope of that section’s 

changes to the evidentiary rules applicable to post-judgment 

proceedings. In Chalmers v. Hirschkop (2013) 213 Cal.App.4th 

289, the court affirmed the trial court’s denial of a stepparent’s 

motion to modify a visitation order. The stepparent argued that 

the trial court should have held an evidentiary hearing on her 

motion. The court noted that Elkins distinguished between the 

evidence admissible in pre-judgment and post-judgment 

proceedings, but also noted the stepparent’s argument that 

“courts’ holdings that evidentiary rulings do not apply to 

postjudgment motions were decided prior to the enactment of 

section 217.” (Id. at p. 312.) The court did not resolve that issue, 

but simply noted that the stepparent did not have a right to 

examine the 10-year-old child under section 217 because the 

stepparent did not file a motion under section 217; she did not 

comply with “any of the requirements” of that section; and good 

cause existed to avoid requiring the child to testify under section 

217, subdivision (b). (Chalmers, at p. 313.)

In Shimkus, supra, 244 Cal.App.4th 1262, the trial court

granted an ex-husband’s post-judgment motion to terminate 

spousal support he had been ordered to pay to his ex-wife. On 

appeal, the court rejected the ex-wife’s claim that the trial court 

erred in failing to consider the declaration that she filed prior to 

the hearing on the motion. The ex-wife never moved to admit the 

declaration as an exhibit at the hearing. The court noted that 

“[s]ection 217 instructs that in a hearing on a motion or order to 

show cause, except under limited circumstances, i.e., the parties’ 

15
stipulation or good cause, live testimony is required. (§ 217, 

subds. (a), (b).) And the court made it clear the hearing would be 

conducted using live testimony.” (Id. at p. 1270, fn. omitted.) 

The court’s holding in Shimkus was based on the ex-wife’s 

failure to introduce her declaration into evidence. (Shimkus, 

supra, 244 Cal.App.4th at p. 1271.) While the court noted that 

“Elkins was decided before enactment of section 217, requiring 

live testimony for motions,” the court also agreed that it “may be 

so” that “section 217 and Code of Civil Procedure section 2009 are 

not mutually exclusive.” (Id., at pp. 1270-1271.) 

Thus, none of the published cases interpreting section 217 

has squarely decided that section 217 completely abrogated the 

hearsay exception in Code of Civil Procedure section 2009 for 

substantive family law motions. 

c. Sandra’s Declaration was inadmissible under 

section 217.

In this case, we also need not answer the general question

whether section 217 makes written declarations submitted in 

connection with family law motions subject to the hearsay rule in 

every case. We conclude that, at a minimum, the hearsay 

exception in Code of Civil Procedure section 2009 does not apply 

to a motion to modify a family law judgment where, as here, the 

opposing party seeks to exclude the declaration on the ground 

that he or she is unable to cross-examine the declarant. In that 

situation, the opposing party’s objection not only seeks to exclude

hearsay evidence, but also amounts to an assertion of the party’s

right under section 217 to “live, competent testimony that is 

relevant and within the scope of the hearing.” (Id., subd. (a).) 

The opposing party’s live testimony is necessary for crossexamination. 

16
The lack of an opportunity to cross-examine the declarant 

deprives the opposing party of important evidence concerning the

credibility of the declarant and the reliability of testimony in the 

declaration. The “chief purpose” of cross-examination is “ ‘to test 

the credibility, knowledge and recollection of the witness.’ ” 

(Fost v. Superior Court (2000) 80 Cal.App.4th 724, 733 (Fost), 

quoting 3 Witkin, Cal. Evidence (3d ed. 1986) § 1873, p. 1827.) 

The right to cross-examination “relates to the fundamental 

fairness of the proceedings.” (Fost, at p. 733.) 

In Fost, the court held that the remedy for a defense

witness’s refusal to answer a prosecutor’s cross-examination 

questions on the basis of the newperson’s “shield law” 

(Cal. Const., art. I, § 2, subd. (b); Evid. Code, § 1070) was to strike 

the witness’s direct testimony. The court observed that, “[w]here 

a witness refuses to submit to cross-examination, or is 

unavailable for that purpose, the conventional remedy is to 

exclude the witness’s testimony on direct.” (Fost, supra, 

80 Cal.App.4th at p. 735, citing 3 Witkin, Cal. Evidence, supra,

§ 1877, p. 1831.) The court concluded that this rule applies even 

in a criminal case in which the witness offers testimony helpful to 

the defense, noting that “[t]here are, in short, exceptionally few 

caveats to the proposition that the right to introduce evidence 

necessarily implicates the responsibility to permit it to be fairly 

tested.” (Fost, at p. 736.)8

8 In a criminal case, the remedy for a defense witness’s 

refusal to answer cross-examination questions on the basis of 

privilege is for the defendant to seek an order compelling the 

witness to testify on cross-examination to avoid having the 

witness’s direct testimony stricken. (See Fost, supra, 80 

Cal.App.4th at pp. 737-738.) 

17
The same rule applies here. Under section 217, absent a 

stipulation or a finding of good cause, Leon had a right to any live 

testimony that was “relevant and within the scope of the 

hearing.” (§ 217, subd. (a).) Such live testimony included the 

opportunity to cross-examine Sandra concerning statements in 

her Declaration on which the trial court might rely. The proper 

remedy for the absence of an opportunity for cross-examination

was to exclude her written declaration from evidence. 

Leon objected to the admission of Sandra’s declaration, and 

the trial court did not find good cause to consider the declaration 

in lieu of live testimony. To the contrary: the trial court gave 

every indication at the hearing that it intended not to consider 

the declaration in issuing its ruling. The court therefore erred in 

relying on the declaration in its Statement of Decision.9 

3. In Light of the Uncontradicted Evidence Concerning 

Changed Circumstances, the Trial Court Abused Its 

Discretion in Denying Leon’s Request to Terminate 

Spousal Support 

In the absence of Sandra’s declaration, the only evidence 

before the trial court was Leon’s testimony and exhibits showing 

the changed circumstances resulting from his retirement. The 

trial court found that Leon had demonstrated a material change 

in circumstances due to Sandra’s receipt of her portion of the 

CalPERS retirement account. (See Shimkus, supra, 244 

Cal.App.4th at p. 1276 [trial court did not err in finding that ex9 In light of our holding that the Declaration was 

inadmissible, we need not consider Leon’s argument that the trial 

court’s consideration of that declaration after stating that it 

would not do so amounted to an improper independent judicial 

investigation. 

18
wife’s receipt of pension payments was a material change of 

circumstances].) That finding was supported by the letter from 

CalPERS that Leon introduced as an exhibit showing that 

Sandra had begun to receive $2,630.68 per month in retirement 

benefits. 

In contrast to this evidence of Leon’s changed 

circumstances, there was nothing in the record concerning 

Sandra’s current financial situation, including her employment 

status and prospects. (See Sinks, supra, 204 Cal.App.3d at p. 592 

[modification order must be based on current circumstances].) In

particular, there was nothing in the record to weigh against 

Sandra’s agreement in the Stipulated Judgment that she

“anticipates becoming self-supporting by January 2008,” which 

was over nine years before Leon brought his motion.10 

On this record, it was error for the trial court to continue 

Leon’s support obligation. The uncontradicted evidence 

established that Sandra had begun receiving more from her 

portion of Leon’s retirement benefits than he had previously been 

paying in spousal support. (See Sinks, supra, 204 Cal.App.3d at 

pp. 591-592, fn. 2 [to avoid a “windfall” at the expense of the exhusband, the trial court should have reduced the ex-husband’s 

support obligation by the amount that his ex-wife had begun 

receiving from her portion of his retirement benefits].) No 

evidence supported the trial court’s findings concerning Sandra’s 

10 Indeed, as Leon emphasizes, there was nothing in the 

record before the trial court showing that Sandra even requested 

a continuation of spousal support. 

19
current needs under section 4320, subdivision (d).11 Under these 

circumstances, the trial court abused its discretion in ordering 

any continuing spousal support.

11 The trial court’s Statement of Decision was incorrect in 

referring to “testimony” other than Sandra’s inadmissible income 

and expense declaration concerning her current needs. Sandra 

did not testify and Leon’s testimony did not include any 

information about Sandra’s current financial situation. 

20
DISPOSITION

The trial court’s order is reversed. Leon’s spousal support 

obligation is terminated. 

In the interests of justice Leon is responsible for his own 

costs on appeal, in light of Sandra’s lack of opposition to Leon’s 

motion below and on appeal.

CERTIFIED FOR PUBLICATION.

LUI, P.J.

We concur:

ASHMANN-GERST, J.

CHAVEZ, J.

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