Jennifer Cora, et al. and Catherine Ann Cora, et al.
Case No: 15FL02036
Hearing Date: Tue Aug 06, 2019 10:30

Nature of Proceedings: Req. for Oder: Modification Visit/Modify Vacation Time Allotted in Judgment/Request for Passports

Respondent’s Req. for Order: Modification Visit/Modify Vacation Time Allotted in Judgment/Request for Passports

Attorneys

Petitioner [“Jennifer”] is represented by Marcus Morales

Respondent [“Catherine”] is represented by David Freidman

Rulings:

1. For the reasons set out below, Catherine’s RFO to break up the 14 day summer vacation into two seven day vacation times is granted.

2. 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. (Family Code section 2030.)

The Court has relied upon Jennifer’s I&E filed 7/23 [income $9,500/mo].

Although Catherine did not file a current I&E the Court relied on the one she filed in 11/2017 [income $65,000/mo]; moreover the Court is very familiar with this case.

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; it would have a chilling effect in such a modification matter if the Court does not award Jennifer fees in this case; thus Catherine shall pay Jennifer $5,000 for attorney fees on or before August 9, 2019.

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

3. The Court notes that Jennifer’s lawyer reported that he intends to bring a separate motion for post-judgment attorney fees incurred by her “due to Catherine’s unscrupulous actions.” The Court cautions counsel on bringing a motion for fees at a time when there is not a pending matter before the Court so that all the pros and cons can be weighed within a current time frame. A generic request for fees and costs for “past services performed” can be problematic for the Court and counsel.

Analysis

Catherine’s RFO filed 12/14/18

It was 56 pages long; have read it all and will summarize here; have omitted references to issues that appear to be resolved; seeks to modify the portion of the Judgment providing for a week of vacation time because that is just too short of a time in which to take their children to Israel for her step-son Jonas’ Bar Mitzvah; Jonas’ cousin is also having his Bar Mitzvah; have about 20 family members who will be joining them on the trip; Judgment in the case provides that the Jennifer and she are each entitled to take a vacation of up to seven days with the children (as a group) one time per year and that the party wanting to take the vacation must notify the other at least 60 days in advance; Judgment further provides that Jennifer and she are supposed to meet and confer to try to resolve any disagreements over the vacation prior to filing for a court hearing; she asked Jennifer to allow her to take the children on a vacation to Israel for cousin’s Bar Mitzvah celebration trip on many occasions; first asked Jennifer about this trip in June of this year; Jennifer ignored her requests; finally Jennifer has agreed to allow her to take the trip; however, Jennifer will not allow any extra days over the seven allotted in the Judgment [ attaches email chain].

Catherine testifies that she is agreeable to providing Jennifer make up days and will allow her to take a vacation for up to two weeks should she ask; not sure why Jennifer is not agreeable to a longer trip; appears to be a pattern with Jennifer of refusing her requests for travel or any swap of days for no apparent reason; appreciates that Jennifer will allow them to take the trip the allotted; seven days is just too short of a time to take such a long trip; flight is approximately 15 hours if it’s a non-stop flight; would like to be able to coordinate air travel and hotel reservations with the family; also to coordinate plans for once they are in Israel.

She testifies she believes that it would be good to modify the Judgment at this time to provide that each party is allowed up to 14 days of travel with the children; they are two years older from the time of the Judgment; it is much more likely that both Jennifer and she will want to take a trip that is longer than seven days; will avoid further such court appearances for either of them in the future; believes that it is great for the children to be able to travel internationally which often will require more than a seven day trip; being exposed to different cultures, food and art will help the children be educated and enrich their lives.

Jennifer’s Response filed 7/23

She testifies via declaration [it consists of 21-pages; have read it all; summarize here]; that the Court should grant in part Catherine’s request to modify the vacation schedule from seven days to 14 fourteen days, but that the Court order that the fourteen day vacation be consecutive (not two one week vacations), be taken during the summer only, and the children not to miss any school during the vacation. All other relief requested in the RFO has been resolved or withdrawn. Catherine to pay need-based and/or sanction-based attorney fees in the amount of $5,000 to her counsel, Marcus W. Morales, within 10 days of the court hearing.

Jennifer testifies that she has agreed to exactly what Catherine asked for in her RFO, a 14-day vacation; but, she has “moved the goal posts” and requested that the 14-day vacation be broken up into two seven day vacation periods. That is not in the children’s best interests; the RFO indicates no material change of circumstances that would warrant modifying the February 7, 2017, Judgment to two (2) one-week vacations; children are struggling for consistency; acknowledges that Catherine has a demanding work schedule that does not allow her to have consistent time with the children; not in the children’s best interests to spend the majority of their time with a nanny or a babysitter instead of her; on the other hand Jennifer is always present with the children during her custodial time and she does not delegate her parenting as Catherine does; children need consistency in their lives and school; two of the children have IEP’s, Thatcher reads at 1st grade level, even though he is in 5th grade.

Jennifer testifies that two one-week vacations will hinder the children as they need consistency in their lives; her only source of income is child support and spousal support; Catherine is a high income celebrity chef who has the financial means to outspend her, which is exactly what she is doing; Catherine has access to nearly an unlimited amount of money to pay attorney fees and she is constrained to only what Catherine pays her in support to pay attorney fees; there is a disparity in access to funds to pay attorney fees and she needs an order that Catherine pay her attorney fees and costs in the amount of $5,000; this is not all of the post-judgment attorney fees and costs she has incurred, the $5,000 will help her ensure that she can pay the invoice from her current counsel incurred for this motion; intends to bring a separate motion for post-judgment attorney fees incurred by her due to Catherine’s unscrupulous actions.

Response supported by Attorney Fee Declaration

The declaration reports that Catherine should be charged for either need-based or sanction-based attorney fees. Counsel charged Jennifer approximately $5,000 to handle the review, continuance, response, review of reply and representation at the hearing in the instant matter; file was large and difficult to review; difficult to understand why this matter needs to proceed to hearing, as Jennifer agreed to Catherine’s demands. After the filing of her RFO, Catherine has now indicated that the 14-day vacation period needs to be broken up into two separate seven-day vacation periods; request was not properly made in her RFO; should be rejected by the Court.

Response supported by Memorandum of Points and Authorities

Contends that Catherine filed her RFO in December of 2018; Jennifer agreed to exactly what Catherine requested, a 14-day vacation period, instead of a seven-day vacation period; it is an additional term not proposed in her RFO; Catherine wants two, one-week vacation periods totaling 14 days; late request has caused confusion and delay; Jennifer has been steadfast that she would agree to what was originally proposed in Catherine’ RFO, a 14-day vacation, but Catherine is “sticking to her guns” and won’t agree. When parties with counsel file a request for order and thereafter change their request, it makes it extremely difficult to resolve the matter. This is not the first time Catherine has changed her mind last minute and has demanded that Jennifer and the children submit to Catherine’s demands and work around Catherine’s busy work schedule; Catherine’s behavior is sanctionable, and the Court should order Catherine to pay Jennifer $5,000 in attorney fees and costs.

Catherine’s Reply filed 7/29

Catherine testifies via declaration that the only thing she agrees with in Jennifer’s Declaration is that this RFO is unnecessary; Jennifer is the one who caused her to file; she is the one who is taking an irrational position regarding the vacation time which necessitates a hearing when all other issues have been resolved or withdrawn; genesis for her Request for Order was Jennifer’s refusal to allow her to take their children on an extended trip to lsrael; Jennifer insisted that 14 days was too long for a trip and that they had to make the trip only seven days; ultimately Jennifer agreed to allow the extended trip via a Stipulation; Jennifer could have agreed to the terms of the Stipulation without Catherine having to file this RFO; Jennifer is in agreement that they can modify the Judgment to allow for 14 days of vacation time over children’s summer break, but she will not agree that they can break this up into two seven day periods if they desire; children are used to the current arrangements, and all they are talking about is a vacation over the summer.

Catherine testifies that breaking up the 14 days into two one week blocks will have no effect on the children’s school work since the 14 days will be exercised over the summer; Catherine testifies that she does travel a lot for work; it may be hard to take 14 days consecutively for a trip.

Catherine testifies that she should not have to pay Jennifer’s attorney’s fees since she actually agreed to the request of 14 days of summer vacation that would be mutually beneficial; however, Jennifer still wants to control how Catherine uses these days; could have saved thousands of dollars on attorneys if she would simply communicate and be a little flexible as it may be hard for a working person to take that time off consecutively every summer.

The Court’s Conclusions

The Court believes that Catherine’s analysis is persuasive; she is working and travels for work; breaking the 14 day vacation time up is reasonable; the children are indeed older; there is a change in circumstances and the best interests of the children would be advanced by making the requested modification. Sanction-based attorney fees of $5,000 are denied; it is clearly not warranted here; Jennifer must assume some of the responsibility for the nature and extent of the negotiations. Need-based attorney fees of $5,000 should be granted; they are warranted here in light of the great disparity in income.