Tiffany Kamin and Carl Kamin
Case No: 17FL02123
Hearing Date: Tue Apr 03, 2018 10:30

Nature of Proceedings: Req. for Order: Spousal Support/Fees

Mother’s request for spousal support and attorney fees

Attorneys

For mother, Tracey Rangel Cruz

For father, J’Aimie L. Oxton

Rulings:

1. Child support has been set by the Commissioner and is not an issue here. The Court notes that the children are 14 [almost 15] and 16; mandatory child support set by the Court is relatively finite.

2. Spousal support is $339/mo retroactive to 2/28/18; retroactive unpaid spousal support is due by April 1, 2018. Additionally, the Court includes a Smith-Ostler Order that mother will receive 15% of any overtime amount father receives over $820 a calendar year starting with the calendar year 2018 beginning 1/1/18; any percentage of overtime due mother shall be paid within seven days. Father is ordered to provide her with a copy of his pay stub within 48 hours of receipt to confirm any overtime income earned.

3. Father’s request to set spousal support now, without prejudice to either party who may ask the Court to recalculate spousal support at the time of trial based on the preponderating evidence presented, is denied. The parties are reminded that spousal support set at trial is not based upon guidelines but utilizes an entirely different method of calculation. To do what father proposes would require the Court, the parties and their counsel to “recalculate back spousal support” by examining about six months of income history to permit input in the guideline format, and simultaneously, to work through a Family Code § 4320 analysis to determine “permanent” support. Such efforts by counsel and the Court will be vastly counterproductive from a time and cost standpoint.

3. Attorney fees are awarded, on account, to mother, in the amount of $6,000 payable April 24, 2018; interest shall be at the legal rate if not timely paid; see below for analysis.

4. The Court notes that the Mediator reported on 2/9/18 as follows: “PARTIAL AGREEMENT: There was a partial agreement by the parties; however the parties were unable to agree to certain particulars. A written Stipulation and Order regarding the agreed to matters was forwarded to parties attorney’s for signature and presentation to the Court for approval. The matter is being referred back to the Court to resolve the remaining issues: The labeling of Physical Custody.” The Court did not find a stipulation was presented to the Court on issues related to custody. The Court invites a stipulation and order on any custody and visitation issues to be submitted at the hearing.

5. This case needs to be tried; the Trial Call is set for 9/25/18; the MSC is set for 9/7/18; the CMC now set for 5/1/18 is vacated; a final CMC is set for 8/7/18 at 10:30 to discuss the status of the remaining discovery issues.

Background

The Petition for Dissolution was filed in 8/2017; the response was filed in 11/2017 and amended in 3/2018 [date of separation is TBD]; appears that both mother and father have filed their PDD and both have a PEACE certificate; father’s retirement plan was “joined” in 2/2018; the parties have gone to mediation; it is a great start; the case appears ready to go to trial if given a reasonable time to complete the discovery.

Mother’s RFO

Filed 2/28/18; reports when she filed for divorce she was under the impression that the divorce would be amicable and resolved through a MSA; this has changed; father cut his voluntary support to her in half, forcing her to go through DCSS for child support and file a request for spousal support; father indicated that he does not agree with the proposed division of community property and debt; that she will need to litigate that as well; she seeks $10,000 in fees; will pay some of her fees herself; she is in insurance sales; makes a modest living of $5,000 gross income per month; used to make commissions, but since starting job with current employer last February, has made only $9,000 in commissions since that time; in 2018 has earned no commissions; going forward commissions will not be substantial; she is a W-2 wage earner and gross income does not fluctuate at all unless she earns a commission; income is not nearly enough to cover expenses of $7,975 per month; father makes almost triple her gross income per month; he will say he no longer has overtime available to him; she disputes that; there is still overtime available at the department; in 2016, his gross income was $178,715 , an average of $14,892 per month; in 2017, it was $177,662, an average of $l4,805 per month; he has consistently worked overtime during his tenure as a police officer for many years and therefore his overtime is a fundamental part of their marital standard of living and should be included in the spousal support calculation; if his income is in fact reduced due to a unavailability of overtime income, she will agree to reduce support accordingly in that event; asks this Court to calculate spousal support using his base gross earnings, but include a Smith-Ostler Order that she would receive a percentage of any overtime income he receives; requests an order that he be required to provide her with a copy of his pay stub within 48 hours of receipt to confirm any overtime income worked, and that he pay any percentage of overtime due her within seven days.

Mother’s Lawyer’s Declaration in support of attorney fees

Comprises 14 pages including Exhibits 1-4; mother paid $7,250 for legal services thus far in these proceedings; counsel accepted a ten hour retainer with the understanding that mother and father were going to have an amicable, uncontested divorce, where fees were not expected to exceed ten hours or $3,750; child support hearing was held in DCSS court, and father was ordered to pay $1,911 plus 15% of overtime to mother; sum did not include spousal support and father would not agree to pay the amount of support that she is presumably entitled to receive; parties do not have an agreement about property division; areas of disagreement are increasing; moving further away from a likely settlement; mother’s legal fees are now $12,998 through March 2, 2018; fees charged have been reasonable and necessary; mother owes $5,748 to bring her balance current; has requested a $7,500 retainer from her for fees going forward; father has the credit line to allow him to borrow the sum; in any event he has the ability to pay fees on account; requests a fee award of $10,000 to level the financial playing field.

Response

Comprises 81 pages including Exhibits A– L; have read it all but can only summarize; reports there was a Court hearing in Dept. 9 on 2/26/18; Commissioner ordered father to pay child support beginning February 1, 2018, in the amount of $1,911; that he offered to stipulate to spousal support orders, which offer mother rejected; objects to being required to pay any attorney fees; requests the Court order both sides to pay his or her own attorney fees; that he has already contributed to her attorney fees and costs; mother has materially misrepresented her financial circumstances to the Court and failed to comply with her obligations under Local Rule 1419; her spending rebuts her claim for a reasonable need for an attorney fee award.

He opposes her requests for temporary spousal support orders, and for a “contribution” to her attorney fees and costs, for three reasons: (1) she failed to disclose significant rental income, gift income and commission income, as well as an active checking account for which she is signatory with her best friend, and omitting entirely his previous contribution to her attorney fees and costs; (2) she lacks any reasonable need for attorney fees or spousal support; (3) her unreasonable actions, which include her refusal to stipulate to spousal support orders based on the Commissioner’s February 26, 2018, income findings, and her material misrepresentation of her finances.

Father requests the Court to sanction mother for her deceptive filings; alternatively, a Guideline temporary spousal support order should be entered using the total gross monthly income attributed to him of $10,267.00 [which reflects $9,477/mo “pay” plus overtime income of $820] by the Commissioner; for mother the Court should use a minimum of $6,050 in gross monthly income, the pay attributed by the Commissioner ($5,090) together with the undisclosed monthly rental income ($550) and undisclosed monthly gift income ($500); requests any spousal support orders be made without prejudice to retroactive adjustment at the time of trial when each of their actual incomes can accurately be determined; mother’s arguments haven’t changed from the child support hearing, but since she filed this Motion, he has been able to obtain (by Subpoena) partial financial records regarding her income which reveal that she materially misrepresented her financial circumstances to both this Court, to the Commissioner and to DCSS.

Specifically requests that the Court deny mother’s requests for temporary spousal support and attorney fees and costs, and that she and her attorney be sanctioned by this Court in the amount of $3,500; alternatively, requests that the Court enter a Guideline Order using his proposed numbers.

Father’s Points and Authorities

Comprises nine pages; have read it all but summarize only; requests that the Court either deny mother’s requests in their entirety, and reserve the issue of attorney fees and costs, together with his request for sanctions, until the time of Trial; in the alternative, requests that the Court adopt the figures used by the Commissioner with the addition of $550 per month in rental income and $500 per month in gift income attributed to mother and that said calculation be made without prejudice to either party seeking to recalculate spousal support at the time of Trial based on actual income figures; further requests that the Court deny mother’s request for a (further) contribution toward her attorney fees and costs and reserve the issue of attorney fees and costs until time of trial.

Comparison of I&E Declarations

Father’s I&E

He is 46 years old; a police officer; earns $9,477/mo [over last 12 months averaged $9,481/mo; plus $820/mo overtime]; estimates mother’s income at $7,459/mo [receives $5,000/mo base pay plus commissions of at least $1500/mo; plus rental income $550/mo and gift income of $500/mo]; his deductions are: union dues $130; retirement $961; medical insurance $94; job-related expenses $483 [reflected on 2017 income tax return]; reports cash of $1,800 and all other assets at $20,000; living expenses $5,300/mo [rents a room]; installment debt [$25,000] pays $1,400/mo on that debt; paid his attorney $10,000 [loan]; 4-5% time share [both teenage children are physically residing with their mother and spend approximately 4% of the time with him until he is able to secure housing with bedrooms for them to sleep and able to have a parenting plan in place reflecting a living arrangement conducive to equally sharing physical custody of two teenagers; pays $565/mo for uninsured health care to offset the $7,000 deductible before health insurance kicks in].

Mother’s I&E

She is 45 years old; is an insurance salesperson; estimates father’s income at $13,652/mo [review of his 2017 W-2 and his pay stubs]; average income over last 12 months was $5,330/mo; reports there has been a material change in her finances as commissions have fallen and she will need to pay $650 per month for health insurance; reports $50 in cash and has $61,226 of debt, household furniture, a leased car, and no other assets to sell; living expenses $8,275 [two teenage children]; paid her attorney $7,250 [savings and loan]; owes $5,750; time-share 99% [reports father sees daughter 1.5 to 2. 5 hours per week; has no time with son due to difficulties in their relationship]; reports father had been paying at least $3,000 in voluntary support per month for the past two years, sometimes more, depending on his overtime earned; in January he reduced it to $1,539 per month without warning.

Comparison of Guideline Calculations

Father’s Lawyer’s Guideline calculations

Assumes for father: 4.17% time share for two children and one income exemption; files Single; deductions of $130 for Union Dues, $961 for Mandatory Retirement, $94 for health insurance premiums, $483 in necessary job-related expenses not reimbursed by his employer as reflected on his 2017 Income Tax Return; changed two settings to reflect that he does not pay into social security and he does not pay CASDI tax as a police officer with the Santa Barbara Police Department.

The Court notes that his “job-related expenses” claimed are set at

(a) $2,945/mo for “uniforms, shoes, dry cleaning, ammo, utilities;”

(b) $2,856/mo for “dues and memberships,” and “associations and committees.”

Assumes for mother: three exemptions; files HH with $5,000 earnings; $1,050 for other taxable income.

Calculates guideline temporary spousal support at $00 per month.

The Court does not find the preponderating proof necessary to add $1,050 to mother’s income at this time.

Mother’s Lawyer’s Guideline calculations

Assumes for father: earnings of $14,849; $100 in the 401k plan; 1% timeshare; one exemption; files Single; $75 union dues; $130 health insurance; $853 retirement.

Assumes for mother two children; three exemptions; files HH; $5,000/mo earnings.

Calculates guideline temporary spousal support at $1,710 per month.

The Court does not presently find preponderating proof to support $14,849 earnings or $100 in the 401k plan [to be divided forthwith]; the job-related expenses claimed are not specific enough for the Court’s satisfaction. On the other hand, the overtime is an issue.

The Court’s Conclusions

Spousal support is $339/mo retroactive to 2/28/18; the Court’s DissoMaster will be available in the Courtroom.

Assumed for father: $10,297 earnings; 1% timeshare; files Single; 1 exemption; $94 health insurance; $130 union dues; $961 retirement; changed two settings to reflect that he does not pay into social security and he does not pay CASDI tax as a police officer with the Santa Barbara Police Department. The Court did not elect to provide any job-related expense deductions as the tax return information was not specific enough to support the numbers claimed.

Assumed for mother: $5,330 in earnings; 99% timeshare; two children, files HH and claims three exemptions.

Attorney fees are awarded to mother in the amount of $6,000 payable April 24, 2018; no interest if timely paid.

The major factors to be considered by a court in fixing reasonable attorney fees include the nature of the litigation and its difficulty; the amount involved; the skill required and the skill employed in handling the litigation; the attention given; the success of the attorney’s efforts and his or her learning, age, and experience in the particular type of work demanded; the intricacies and importance of the litigation; the labor and the necessity for skilled legal training and ability in trying the cause; and the time consumed. When the trial court is informed of the extent and nature of the services rendered, it may rely on its own experience and knowledge in determining their reasonable value. Moreover, the exercise of sound discretion by the trial court in the matter of attorney fees includes also judicial evaluation of whether counsel’s skill and effort were wisely devoted to the expeditious disposition of the case. The Court has made all these evaluations in this case.

The standard of proof regarding need-based fees is that the Court shall first make findings of whether fees and costs are appropriate; whether there is a disparity in access to funds, and whether one party is able to pay for both parties’ legal representation; that only if the Court makes a finding demonstrating disparity in access and ability to pay should the Court award fees.

The Court can comfortably make all such findings here. There is indeed a significant disparity between the parties’ respective earning ability and incomes that is real; father makes at least twice what mother earns; it would have a chilling effect in such dissolution matters if the Court does not award mother fees and costs on account in this kind of a case; thus father shall pay mother, on account of fees and costs, the sum set out above; the allocation of such fees will be reserved for trial; the issue of additional fees is reserved until trial.

The standard of proof regarding sanction-based fees is that the Court shall first make findings of whether sanctions are appropriate; but the Court concludes sanction-based fees are not appropriate here. Thus the Court should not make findings as to what amount of money is reasonable as sanctions.