Jason Katsapetses and Kim Vivian Katsapetses
Case No: 18FL02822
Hearing Date: Tue Jun 11, 2019 10:30

Nature of Proceedings: Req. for Order: Child Support/Spousal Support/Atty Fees/Access to Community Acct.

Respondent’s Req. for Order: Child Support/Spousal Support/Attorney Fees/ Access to Community Account

Attorneys:

Marcus Morales for Petitioner (“father”);

John R. Rydell for Respondent (“mother”)

Ruling: For the reasons set out below the Court orders:

1. Father shall pay child support in the amount of $2,298 per month retroactive to 4/26/19.

2. Father shall pay one-half of the amount of any unreimbursed medical and dental expenses, retroactive to 4/26/19.

3. Father shall not now be required to pay one-half of the cost of extra-curricular activities; however, the request is without prejudice and the Court reserves jurisdiction to make an award related to this issue retroactive to 4/26 at trial.

4. Father shall pay temporary spousal support of $4,290 per month (nondeductible) retroactive to 4/26/19. Total spousal and child support is $6,588/mo.

5. Father shall pay mother’s lawyers, on account, $10,000 to use to retain a forensic accountant.

6. Father shall pay $20,000, on account, as a contribution to mother’s attorney’s fees and costs.

7. Father’s request to impute income to mother now is denied.

8. Mother is given a Gavron warning, to wit: Family code section 4330; the recipient of spousal support should make reasonable efforts to assist in providing for her support needs, taking into account the particular circumstances considered by the court pursuant to section 4320. Marriage of Gavron (1988) 203 Cal. App. 3d 705.

9. Mother’s request that father provide her online access to all business accounts and credit card accounts for family business SUN Builders of Santa Barbara, even though she had agreed that she will not withdraw or transfer any funds from the accounts, is denied.

10. Attorney fees and costa are subject to being reapportioned at trial.

11. The trial date of 10/29/19 is confirmed.

Analysis

Mother’s RFO

Filed 4/26; seeks spousal support, child support (asks for it to be retroactive); attorney fees; have read all 15 pages; will summarize here.

Mother testifies that since their child was born she has been a full-time mother and homemaker; father spent the entire marriage pursuing and developing his career as a general contractor (SUN Builders of Santa Barbara); father refused to move out of family home; mother moved into temporary housing with child (Zia – 15 years old) who is with her 100% of the time.

Mother requests that:

A. Father pay child support in the amount of $2,847 per month plus one-half of the amount of any unreimbursed medical and dental expenses, and one-half of the cost of extra-curricular activities; should be retroactive to November 15, 2018, the date that father filed for divorce.

B. Father to pay temporary spousal support of $5,822 per month.

C. Father pay her lawyers $10,000 to use to retain a forensic accountant.

D. Father pay $40,000 as a contribution to her attorney’s fees and costs.

E. Father provide her online access to all business accounts and credit card accounts for family business SUN Builders of Santa Barbara (She has agreed that she will not withdraw or transfer any funds from the accounts).

Supported by the following

Mother’s Points and Authorities

Eight pages long; summarize only; contends that support should be based on actual 2018 income; is not a case in which the Court can simply assume that the income reported on the 2017 income tax returns should be used to set support; would result in a grave injustice for three reasons:

1) The 2017 SUN Builders income was substantially underreported.

2) The 2017 income is now more than 16 months out of date.

3) The 2018 income is substantially greater.

Contends that father has always kept the financial records for SUN Builders; does not use any of the common software programs or any other accounting software; he uses multiple bank accounts and moves the funds around between them, making it more challenging to track funds.

Mother has received approximately $125,000 from father as a “buy out” of her share of an investment in Crypto Currency; but the Court may not use this to conclude that father should not pay her fees as he has dramatically more income than she does.

Mother’s Attorney Declaration in Support of Fees and Costs

Testifies that through March 31, 2019, mother paid $12,867 in fees and costs; owes an additional $14,960; case has been complex and expensive; outlines the reasons why; making a fee request of $45,000 at this time to cover the existing balance and to provide $30,000 to prepare the case for trial.

Mother’s I&E

Filed 4/26; no earnings or other income; $700/mo medical insurance; unaccountably lists cash as TBD, stocks and bonds TBD, and all other property TBD (the Court does not find this declaration relating to this itemization helpful or typical); total living expenses $11,000/mo. Her report of what she has paid her attorney and what she owes reflects what her attorney reported. As for time share she reports no % of time share; only that the child will live with her full time and will spend every other weekend with father.

Mother’s DissoMaster Calculation

Comprises 18 pages; have read it all; attaches Exhibits A – C; but no DissoMaster.

Father’s Response

It is 50 pages long; have read it all; can only summarize; he requests that the Court order:

A. That he pay child support to in the amount of $1,593 per month beginning April 26, 2019;

B. that he pay spousal support in the amount of $2,020 per month beginning April 26, 2019;

C. That mother be issued a Gavron warning;

D. That the Court order that he pay $15,000 in attorney fees and costs; not the $50,000 requested;

E. That the Court deny, for a second time, that he be ordered to provide mother online access to his banking accounts.

Points to the 2011-2017 tax returns; they show that he never came close to earning in excess of $300,000, as mother argues in her motion; last four taxable years show that he consistently earned between $133,167 and $149,523 from his construction business; 2018 is going to be a similar year as far as profits are concerned; gross revenue in 2018 was actually lower then gross revenue in 2014; his gross revenue numbers in 2018 were lower than 2016; will make less taxable income than he did in 2014, when he earned $149,523. Unaccountably contends that he needs mother’s help in completing tax returns for 2018. In summary, he testifies his taxable income:

For 2016 was $133,167;

For 2017: $144,854, and

For 2018 is what he earned in 2017, $144,854 annually, at $12,071 monthly average.

Father asks the Court to impute minimum wage, full time employment to mother.

Father testifies that mother’s Income and Expense Declaration states that she wants him to have custody every other weekend; he is agreeable to that proposal; testifies that although there has not been a formal support order, he has paid all of her expenses since separation; requests support order to start the date she filed this support motion, April 26, 2019.

Father testifies that he should pay mother $15,000 in fees; that mother is a 50% owner of an inherited property in Maine; it is worth over $2 million with no debt; additionally he paid her $126,000 for her interest in money invested in the cryptocurrency market; she also received $4,600 in cash at separation; in summary her request is more money than he has in the bank; as of May 10, 2019 he had a total of approximately $30,000 in his Chase bank accounts, including the business accounts, as of that date.

Documents Submitted by Father in Support of his Declaration

Father’s I&E

Testifies that he earns $12,000/mo; pays $650/mo in medical insurance; as for cash stocks and all other property he reports “see SAD;” living expenses reported at $8,000/mo; paid his attorney $18,500 and owes $4,300; estimates his time share at 14%. He reports that he pays real property taxes of $1,021/mo and a mortgage of $2,963/mo but does not divide it between interest and principal.

Father’s DissoMaster

He reports at line 9-10 that he has $12,071 in self-employment income, and $1,500.00 in “Other nontaxable income,” albeit on the DissoMaster he lists income at $12,071 and “other nontaxable income” at $2,500; he lists $650 in medical premiums but does not list what mother reported ($700/mo); he lists mother’s imputed income at $2,080.

Father’s Status Report filed 5/31

Reports that mother will be moving into a home she jointly owns with her brother in Martha’s Vineyard for the summer; will not be paying rent during the summer, her cost of living will decrease, leading to a lower need for temporary support; she states her intention to move back into the family residence after the summer; father currently pays all the expenses for the family residence, including the mortgage, property tax, insurance, utilities, etc.; mother will not be paying these expenses, she has a decreased need for spousal support; because mother proposes that she will be living in a home that father will be paying all the expenses of, father’s proposed spousal support of $2,371 per month and child support $1,724 per month, for a total support payment of $4,095 per month is reasonably necessary to support mother given her decreased living expenses.

Mother’s Reply

Filed 6/3; read the “brief” filed on her behalf; father has not filed a 2018 income tax return; father refused to provide the Schedule C figures and supporting documentation for 2018, and that he challenged mother to figure out his business income for 2018; mother accepted father’s challenge, and calculated what father’s actual 2018 income was: $329,655, or $27,472 per month; in his responsive declaration of May 26, 2019, father provided no rebuttal to the calculation provided mother’s lawyer.

Mother filed her declaration and testifies that she is leaving with Zia on vacation on June 11; does not know where Zia and she will live when they return because father has filed an RFO to exclude them from the family residence and the support he’s offered does not allow for them to stay in Santa Barbara.

Mother testifies that father misleads the Court about the house in Martha’s Vineyard; her widowed mother lives there full time; she put the house in a real estate trust for which she is the trustee, and eventually her brother and she will have equal ownership of the house.

Mother testifies that father is not being candid when he says that he has been supporting Zia and her since March 6, 2019; he has made only one voluntary support payment of $5,000; he expects Zia and her to live off her savings while he spends all of his income from SUN Builders; on March 6, 2019, father blocked her access to the business accounts at Chase; two days later he removed all of the funds in the joint Chase bank accounts; was obvious at that point that he intended to take possession of all funds; so that she would have some money to live on, she removed $16,500 from the joint Wells Fargo account; would never have had the need to do this had father not taken steps to keep all of their money for himself; she has spent all of the community savings on Zia and her living expenses.

Mother’s DissoMaster is submitted; assumes time share of 5% and father’s income of $27,500/mo; itemized deductions for father of $1,021 for property taxes and $2,700 for interest expense; does not report medical insurance deductions; shows child support at $2,823 and spousal support at $5,861/mo =$8,684/mo.

The Court’s Conclusions

Mother’s attorney’s calculations for 2018 are persuasive; but for father’s income, the Court will “assume an average income for a DissoMaster calculation” based upon what father shows on his DissoMaster ($12,000 + $2,500) for 2016 and 2017 and what mother shows for 2018 ($27,500) = $56,500/3 = $18,833/mo; time share 14%; medical insurance deductions of $650 and $700; $1,021 for property taxes and $2,000 for interest expense (the Court’s estimate). The Court will not impute income to mother and will make support retroactive to the date mother filed her RFO. Attorney fees and costs for mother are obviously required and will be addressed based upon father’s I&E. Mother will be HH and father SINGLE; mother should get one-half of all noninsured medical expenses but an order for one-half of all extracurricular expenses will not be ordered now because there is no estimate what that might be. Mother’s request to be online for father’s business accounts will not be ordered; but it does emphasize her need for a forensic accountant. Mother’s request for attorney fees and costs will be addressed but the total requested will not be ordered now since the Court was provided only with TBD on her I&E relating to her cash and all other property estimates. My DissoMaster will be available in the courtroom.