Filed 11/25/19
                              CERTIFIED FOR PUBLICATION




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                               THIRD APPELLATE DISTRICT
                                       (Sacramento)
                                             ----




 In re the Marriage of ZOE KATHERINE and
 RICHARD ANTHONY PASCO.

 ZOE KATHERINE PASCO,                                                 C085721

                 Respondent,                                 (Super. Ct. No. 12FL03919)

         v.

 RICHARD ANTHONY PASCO,

                 Appellant.


      APPEAL from a judgment of the Superior Court of Sacramento County, Ernest W.
Sawtelle, Judge. Reversed and remanded.

        Law Office of Stephanie J. Finelli and Stephanie J. Finelli for Appellant.

        DOWNEY BRAND, Jay-Allen Eisen, Sheila W. Pendergast; HEMMER & BARR
and Jill L. Barr for Respondent.




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        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. This was an abuse of the
court’s discretion. Accordingly, we reverse the court’s September 11, 2017 order 1
and remand 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.
                                       BACKGROUND
        The parties were married for just over 20 years. A stipulated judgment dissolving
their marriage was filed on December 19, 2014, and included the parties’ agreement for
spousal support. The parties agreed Richard would pay to Zoe $2,500 each month for
spousal support (plus a percentage of bonuses) and they would “review spousal support
in December 2016.” They also agreed “the marital standard of living has not been
established” and Zoe would obtain a teaching credential for special education.




1      In his notice of appeal, filed on October 11, 2017, Richard indicated he was
appealing from the August 18, 2017 order. That order was superseded by an amended
minute order filed by the court on September 11, 2017, that corrected a typographical
error but made no substantive changes. We liberally construe the notice of appeal to
encompass the September 11, 2017 amended minute order. (Russell v. Foglio (2008)
160 Cal.App.4th 653, 661 [“ ‘notices of appeal are to be liberally construed so as to
protect the right of appeal if it is reasonably clear what appellant was trying to appeal
from’ ”].)


                                                2
       On January 4, 2017, Richard filed a request for order terminating spousal support
(the request) based on Zoe’s new job and increased monthly income. Richard retained an
expert who, after reviewing financial records, “indicated [Zoe] would need $3,300 per
month after taxes in order to maintain the marital standard of living.” A hearing was set
for February 22, 2017.
       Zoe opposed the request. She argued there were “several factors that the court
will need to consider when conducting the evidentiary hearing on this motion.” Zoe
noted she was no longer receiving child support and argued, “this is a change of
circumstances to which the court should take note.” She had to take out a mortgage on
the family home, and she disagreed with Richard’s expert on the marital standard of
living so would have to retain her own expert. Zoe asked “the court [to] set this matter
for an evidentiary hearing so that the court may hear evidence on the appropriate Family
Code section 4320 factors.” She also asked for attorney fees.
       On February 22, 2017, the parties and their counsel appeared before the court on
the law and motion calendar. The court set the matter for a two-day trial, as well as the
mandatory settlement conference. (Super. Ct. Sacramento County, Local Rules, rule
5.28(A) [court required to set a settlement conference prior to trial date].) Prior to the
mandatory settlement conference, the parties each submitted a statement of issues and
contentions, along with their proposed dispositions. (Super. Ct. Sacramento County,
Local Rules, rule 5.29(A) [parties required to submit a statement of issues and
contentions in advance of the mandatory settlement conference].)
       In his statement of issues and contentions, Richard continued to argue that because
Zoe now had a job, she was able to meet the marital standard of living, as determined by
his expert, without spousal support. In her statement of issues and contentions, Zoe
argued that “[o]nce the court goes through the appropriate Marital Standard of Living
analysis, it will be clear that the order for spousal support should not be terminated and it


                                              3
should continue as [Zoe] still needs spousal support.” She said her expert did not agree
with the marital standard of living reached by Richard’s expert; her expert would “testify
that the standard of living was much higher.”
       She further argued that, although she now received a pay check, her expenses also
had increased and she was no longer receiving child support. She thus claimed that
“arguably, there is no substantial change in circumstances, which is required for the court
to modify a spousal support order.” Zoe “reserve[d] her right to fully address the factors
of Family Code section 4320 in a trial brief in the event that this matter does not resolve
at settlement conference.”
       The matter did not resolve at the mandatory settlement conference and the two-day
trial was confirmed.
       On the first day of trial, August 18, 2017, Zoe filed a trial brief in which she again
said there was “arguably” no showing of changed circumstances and “[t]he evidence
[would] demonstrate that [she] cannot maintain the standard of living based upon her
earning capacity.” She addressed each of the Family Code section 4320 factors and
argued that “[t]he equities” weighed in favor of continuing the existing order for support.
She reiterated her request for attorney fees.
       At the start of trial, the court asked Zoe’s counsel, Jill Barr, to address her
“threshold” argument, that there were no changed circumstances. Barr began: “My
argument is that the - - when you look at the overall cash flow, there really hasn’t been a
material change in circumstances.” The court then engaged Barr and Zoe in a colloquy
regarding Zoe’s circumstances. Barr indicated the facts they were discussing would
“come out in the evidence.”
       The court asked Richard’s counsel, Frank Dougherty, if he wanted “to be heard.”
Dougherty responded: “the problem with the argument about no change of circumstances
is it’s heavily based on assumption of facts the Court has to hear the evidence for. So it’s


                                                4
not a preliminary matter in that sense, but let me address it anyway in terms of what the
evidence will show.”
       Dougherty went on to describe the evidence he intended to present at trial. He
argued it would both demonstrate changed circumstances and show Zoe could meet or
exceed the marital standard of living on her own. Barr challenged Dougherty’s factual
assertions as well as his conclusions. The court asked if the matter was submitted. Barr
said, “Yes.” Dougherty did not respond, “(No audible response.)”
       The court ruled there were “no material changes in circumstances at this
time to warrant a hearing on modification/termination of spousal support.” The
court then asked the parties to make their arguments relative to Zoe’s request for
attorney fees.
       Rather than respond to Zoe’s request for fees, Dougherty objected repeatedly to
the court’s ruling. Dougherty argued the court was precluded from ruling on Richard’s
request without first considering evidence. Dougherty asked the court to recuse itself
under Code of Civil Procedure section 170.1 and send the parties back to the presiding
judge for a new trial judge. Dougherty argued the court’s ruling demonstrated Richard
could not get a fair hearing in this courtroom. The court asked Dougherty for authority to
support his recusal motion. Dougherty responded: “In my wildest dreams I did not
imagine or come prepared with case law that a judge after the issue of change of
circumstances had not been raised by opposing counsel or her client.[2]
       “The Court: It’s in her motion. It’s in her brief.
       “[Dougherty]: In what brief?
       “The Court: Her brief. That’s one of the first thing[s] she addresses.



2     We recognize this quote does not make sense, but may demonstrate how surprised
counsel was by the trial court’s ruling.


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        “[Dougherty]: That she handed me today.
        “The Court: August 18 is when this is filed . . . .”
        The court recessed to conduct its own research, returned, and denied Dougherty’s
recusal motion. Relying on Code of Civil Procedure section 170.4, subdivision (b), the
court found Dougherty’s request was not properly made. The court continued to press
Dougherty to limit his argument to Zoe’s request for attorney fees. Dougherty
acquiesced and argued against Zoe’s request for fees.
        Dougherty argued Richard incurred significant fees preparing for a trial that
did not happen. The equities, therefore, dictated Richard should not be ordered to
pay Zoe’s fees. The court was not persuaded and ordered Richard to pay $2,500 to
Zoe for her attorney fees, reduced from her original request for fees because there was
no trial.
        Richard appeals from this order.
                                        DISCUSSION
        Richard contends the trial court abused its discretion by denying his request for an
order terminating spousal support without considering any evidence. We agree.
        Trial courts have broad discretion in deciding whether to modify a spousal support
order based upon changed circumstances. (In re Marriage of Swain (2018)
21 Cal.App.5th 830, 836.) In exercising its discretion, however, “a trial court must
‘follow established legal principles and base its findings on substantial evidence.’
[Citation.] ‘If the trial court conforms to these requirements its order will be upheld
whether or not the appellate court agrees with it or would make the same order if it were
a trial court.’ [Citation.] 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.” ’ [Citations.].” (Id. at pp. 836-837.)




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       Here, the court found no changed circumstances but did so without considering
any evidence. Zoe argues the trial court considered the evidence “before the court . . . in
the stipulated judgment and the income and expense declarations and fact based
declarations of the parties.” Zoe, however, does not include a citation to the record to
support this assertion and we can find nothing in the record to support it. Indeed, the trial
court was nearly silent on exactly what documents it did or did not consider in reaching
its decision. There is some indication the court was looking at Zoe’s trial brief but
nothing more. A trial brief is not evidence, it is argument.
       Assuming, as Zoe does, the court relied on the parties’ previously filed
declarations in reaching its decision, that was error because none of the declarations filed
in support of or in opposition to Richard’s request for an order were admitted into
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




                                              7
evidence, marked, and subject to objections, they are not evidence the court may consider
in resolving disputed factual issues. (Shimkus, at p. 1271.) 3
       The parties were well past making an offer of proof to establish a prima facie
showing of changed circumstances. (See, e.g., In re Marriage of Brown & Yana (2006)
37 Cal.4th 947, 962 [evidentiary hearing on a move away request required only if moving
party able to make prima facie showing the move would be detrimental to child].) The
parties already appeared on the court’s law and motion calendar, and the court set the
matter for a two-day trial along with the mandatory settlement conference. 4 In
anticipation of the mandatory settlement conference, the parties each prepared a
statement of issues and contentions, in which they discussed evidence related to the
Family Code section 4320 factors. They discussed their competing experts’ opinions



3      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.) We disagree 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).)
4     At the trial, Barr argued the court did not find a prima facie showing of changed
circumstances. She says the parties stipulated to set the matter for trial.

        That stipulation is not in the record. In any event, a stipulation to set the matter
for trial is a tacit agreement that Richard made a prima facie showing of changed
circumstances in his declarations. It is reasonable to assume that if Zoe believed she
could avoid a two-day evidentiary hearing by arguing Richard failed to make a prima
facie showing of changed circumstances with his declarations, she would have argued
that at the short cause hearing.


                                               8
with regard to the marital standard of living. And they each discussed whether Zoe could
meet the marital standard of living without Richard’s support.
       In her statement of issues and contentions, Zoe did say that because her
expenses increased along with her income, there “arguably” were no changed
circumstances. But she did not argue that Richard could not make, or had not
made, a prima facie showing of changed circumstances, and she did not object to the two-
day trial being set. Accordingly, on this record, we must assume a prima facie
showing of changed circumstances already was made. (See In re Marriage of Brown
& Yana, supra, 37 Cal.4th at p. 962 [not entitled to evidentiary hearing on request to
modify final custody order, must make prima facie showing of changed circumstances].)
       Because a prima facie showing of changed circumstances already was made
based on the offer of proof in Richard’s declarations at trial, the court was precluded
from relying on the parties’ declarations unless they were admitted into evidence –
they were not. (See In re Marriage of Boblitt, supra, 223 Cal.App.4th at p. 1022.)
The court also was precluded from relying on the argument of counsel and the
unsworn statements of either party, neither of which is evidence. (In re Heather H.
(1988) 200 Cal.App.3d 91, 95 [“unsworn testimony does not constitute ‘evidence’
within the meaning of the Evidence Code”]; People v. Superior Court (Crook) (1978)
83 Cal.App.3d 335, 341 [statements by counsel are not evidence]; see also Cal. State
Bar Rules of Prof. Conduct (Nov. 1, 2018 ed.) rule 3.4(g)
<http://www.calbar.ca.gov/Portals/0/documents/rules/Rules-of-Professional-
Conduct.pdf> [as of Nov. 21, 2019], archived at <https://perma.cc/8MGZ-5HK9>)
[attorneys must not “assert personal knowledge of facts in issue, except when testifying
as a witness”].)
       In sum, the trial 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


                                             9
court’s questions. The court did not consider any actual evidence. This was an
abuse of the court’s discretion. (In re Marriage of Swain, supra, 21 Cal.App.5th at
pp. 836-837.)
                                      DISPOSITION
       The trial court’s September 11, 2017 order is reversed. The matter is remanded
for further proceedings consistent with this opinion. Richard Anthony Pasco is awarded
his costs on appeal. (Cal. Rules of Court, rule 8.278(a).)




                                                              /s/
                                                 HOCH, J.



We concur:



              /s/
RAYE, P. J.



              /s/
BUTZ, J.




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