Rubanowitz v. Rubanowitz (In re Marriage of Rubanowitz)

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. BD574834, Scott M. Gordon, Judge. Affirmed.

Melvin Teitelbaum for Appellant.

James Alex Karagianides for Respondent.

FEUER, J.

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Shalom Rubanowitz appeals from the judgment entered following a marital dissolution trial awarding child and spousal support to his former wife, Barbra Rubanowitz, and denying his request for attorneys' fees.^[1] Shalom contends the family court erred by not considering monetary payments that Barbra's father made to Barbra or to third parties on her behalf as income to Barbra when calculating child and spousal support. Further, Shalom argues he was prejudiced by the denial of his request for a trial continuance to allow him to call Barbra's vocational evaluator as a witness. Shalom also asserts the family court abused its discretion in denying his request for attorneys' fees under Family Code section 2030.^[2] We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Marital Dissolution Proceeding

Barbra and Shalom were married in 1991 and separated on September 24, 2012. Barbra filed a petition for marital dissolution on December 10, 2012, and a status-only judgment of dissolution was entered on November 19, 2015. Barbra and Shalom have seven children, six of whom were minors when the dissolution proceeding began.

Shalom is a rabbi and an attorney who practices as a sole practitioner. Shalom's revenues from his law practice dropped in 2011 when he lost a major client. In 2012, after Barbra and Shalom separated, Shalom lost the bulk of his legal business because he no longer represented the business interests of

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Barbra's family. Barbra is a stay-at-home mother who did some part-time work as a doula for a short period of time. After their separation, Shalom did not provide child or spousal support to Barbra.

B. The Pretrial Orders and Barbra's Appeal

In January 2013 Barbra filed a request for pendente lite child and spousal support. Following a two-day hearing, on May 29, 2014 the family court^[3] issued a written order on the parties' requests for pendente lite child and spousal support and attorneys' fees. The court found payments made by Barbra's father, William Moskovits, to Barbra or to vendors on her behalf were regular and recuring cash gifts that should be treated as income to Barbra when calculating child and spousal support. The court found Barbra's gross income available for support was $30, 000 per month based on Moskovits's payments of at least $57, 000 per month. The court found the child support guidelines provided for payment by Shalom to Barbra of $424 per month as child support for their five minor children (one by then was an adult) based on gross income of $11, 098 per month for Shalom and $30, 000 per month for Barbra. But the court deviated upward from the guideline amount and ordered Shalom to pay $1, 500 per month in child support because Shalom was spending generously on himself, and the court found the money would be better spent on the children. The court also found the spousal support guidelines provided for Barbra to pay Shalom $5, 791 per month as pendente lite spousal support, but the court did not order payment of spousal support, finding Moskovits would reduce his payments to Barbra if they were used to pay spousal

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support to Shalom, which would be detrimental to the children. The court found it was in the children's best interest that neither party pay the other pendente lite spousal support. Finally, the court ordered Barbra to pay Shalom's counsel $140, 000 in attorneys' fees and costs under section 2030 because there was a substantial disparity in access to funds to pay for an attorney, Shalom's request for attorneys' fees was reasonable, and Barbra had the ability to pay Shalom's attorneys' fees. Barbra appealed from the orders.

On June 7, 2016 we reversed the family court's orders for pendente lite child support, spousal support, and attorneys' fees. (In re Marriage of Rubanowitz (June 7, 2016, B257782) [nonpub. opn.] (Rubanowitz I).) We concluded the family court abused its discretion in determining Moskovits's payments to Barbra and to third party vendors were income to Barbra for purposes of pendente lite child and spousal support. Although Moskovits made regular payments in fixed amounts for some expenses, such as private school tuition for the children, Moskovits's payments to Barbra and other third parties "were sporadic in nature, varied in amount, and depended on what particular expenses were incurred in a given month." (Ibid.) Moskovits's payments therefore were outside "'the traditional concept of income as a recurrent monetary benefit, '" as described by In re Marriage of Alter (2009) 171 Cal.App.4th 718, 736 (Alter). (Rubanowitz I, B257782.) Further, the family court abused its discretion by arbitrarily estimating $30, 000 per month as gross income attributable to Barbra based on Moskovits's monthly $57, 000 payments. We also concluded the "[family] court's order that Barbra pay $140, 000 in attorney's fees and costs to Shalom's counsel exceeded the amount reasonably necessary for Shalom to maintain the dissolution action during the pendency of the

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proceeding." (Ibid.) We instructed the family court to "reconsider the role of the payments made by Moskovits as part of its review of the statutory factors" delineated by sections 2030 and 2032 given that Moskovits's payments to Barbra "were not regular and recurring." (Ibid.) We stated, "On remand, the trial court shall consider its redetermination of Barbra's income and the balance of funds remaining in the client trust account held by Shalom's counsel, as well as the attorney's fees and costs likely to be incurred by Shalom through trial, in deciding whether to order an award of attorney's fees and costs to Shalom under section 2030, and if so, the amount of such award." (Ibid.)

C. The Evidence at Trial

A six-day trial was held in March 2019. At the time of trial, Barbra and Shalom had three minor children: 17-year-old Shlomo, 14-year-old Avigayil, and 10-year-old Batsheva.

Shalom testified he has been a licensed attorney since 1995. He worked "somewhere between 15 and 20 hours" per week for the prior three years and charged clients between $100 and $350 per hour. In addition, Shalom worked a minimum of 38 hours per week as a rabbi at the Pacific Jewish Center. The Pacific Jewish Center paid Shalom a starting salary of $4, 000 per month (increased to $5, 000 per month in November 2017), his housing cost of $4, 800 per month (paid directly to the landlord), and $5, 000 per year for leading services during the high holidays.

Shalom testified that during the marriage, Barbra's grandfather Mark Kornwasser paid for Shalom and Barbra's household expenses, their children's private school tuition, food, clothes, vacation, and health-related expenses. After Kornwasser's death in approximately 2010, Moskovits "agreed to

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pay everything the grandparents paid."^[4] During the marriage, Shalom's law practice "was split between doing work for Barbra's family and working in the mortgage banking industry." After Barbra and Shalom separated, Shalom's work with Kornwasser's real estate business "dwindled drastically" and "was gone within a year or so after separation."

Barbra testified that during the marriage she did not work outside the home except for some work as a doula because she was the primary caregiver for her and Shalom's seven children. At the time of trial, Shlomo primarily resided with Shalom and visited Barbra twice a week for four hours each visit. Avigayil and Batsheva primarily resided with Barbra.

Moskovits testified that prior to Barbra and Shalom's separation he did not pay for their expenses except for the children's private school tuition and summer camp fees. After Barbra and Shalom's separation, Shalom paid $1, 500 per month in child support from 2015 to July 2017. Moskovits testified he "had to step in and pay" Barbra's expenses because "Shalom wasn't paying any of the bills." Barbra relied on Moskovits to pay her monthly expenses, which averaged $17, 825 per month. Moskovits paid Avigayil's and Batsheva's tuition directly to their school. Shalom paid for Shlomo's private school tuition for the prior two years because Moskovits did not approve of the school.

Barbra testified Moskovits did not give her a set amount of money. Moskovits initially made payments directly to vendors and service providers. Later, she "would present him with [an] Excel spreadsheet, and he would look at all the expenses and give

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[her] a check for that month's expenses." Moskovits similarly testified he initially wrote checks directly to the vendors. Beginning in February 2013, Moskovits wrote checks to Barbra to ensure she had enough money to cover her and the children's expenses for the next month. Once a month, Moskovits and Barbra would review Barbra's credit card bills and bank statements on a spreadsheet, and Moskovits would pay the total of the bills. Moskovits recorded his payments to Barbra, her attorneys, and vendors on spreadsheets, which were admitted into evidence. The spreadsheets included the dates and amounts of the payments and payees covering the period from November 2011 to February 2019.

Barbra and Moskovits testified Moskovits's payments to her and others on her behalf were loans. Barbra signed promissory notes prepared by Moskovits reflecting his payments to her from February 4, 2014 to February 26, 2019, which totaled more than $7 million. The last four promissory notes executed on August 30, 2018 reflected the accrued amount Barbra owed Moskovits. The...