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          B284468
LEON E. SWAIN.
__________________________________        (Los Angeles County
                                          Super. Ct. No. MD031102)
SANDRA SWAIN,

       Respondent,

       v.

LEON E. SWAIN,

       Appellant.


     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 post-
judgment 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 cross-
examination. 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 self-
supporting 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 cross-
examination.”
       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 post-
judgment 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] self-
represented.” (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 agreed-
upon 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 cross-
examination.




                                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 ex-

9     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 ex-
husband, 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.




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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.




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                        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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