In re Marriage of Venit, B185306 (Cal. App. 7/16/2007)

• Decision Date: 16 July 2007
• Docket Number: B185306,Consolidated with B186728
• Court: California Court of Appeals Court of Appeals
• Parties: In re Marriage of JAMI and ADAM VENIT. JAMI ABELL-VENIT, Respondent, v. ADAM VENIT, Appellant.

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In re Marriage of JAMI and ADAM VENIT JAMI ABELL-VENIT, Respondent, v. ADAM VENIT, Appellant.

B185306

Consolidated with B186728

Court of Appeals of California, Second Appellate District, Division Five

July 16, 2007

NOT TO BE PUBLISHED

Appeal from an order of the Superior Court of Los Angeles County, No. BD279330, Marjorie Steinberg, Judge. Affirmed.

Law Offices of Vicki J. Greene, Vicki J. Greene for Appellant.

Nachshin & Weston, Scott N. Weston; De Goff and Sherman, Richard Sherman, and Victoria J. De Goff, for Respondent.

TURNER, P. J.

I. INTRODUCTION

This is a consolidated appeal by Adam Venit from post-dissolution child support and litigation costs orders in favor of his former spouse Jami Abell-Venit¹ entered by Judge Marjorie Steinberg. First, Adam challenges the July 15, 2005 denial of his application to modify a November 8, 2002 child support order to reduce his child support payments for his two children from $26,971 per month, which he was ordered to pay pursuant to the statewide uniform child support guideline formula set forth in Family Code² sections 4050 et seq., to $12,000. Second, Adam challenges that portion of the July 15, 2005 order which increased his child support payments to $31,603 per month pursuant to the statutory guideline support formula based on his annual income of $4,082,424. Third, Adam also appeals from an August 22, 2005 order directing him to pay $246,268.54 of litigation costs to Jami in connection with the July 15, 2005 order, among other things. Under the applicable standards of review Judge Steinberg did not abuse her discretion in: denying the request to reduce the support order from $26,971; increasing the amount of monthly support to $31,603 based on the escalation in Adam's annual income from $3.6 million in 2002 to $4,082,424 in 2005; and ordering Adam to pay most of Jami's litigation costs.

II. BACKGROUND

A. The January 25, 1999 Judgment

At the time a dissolution judgment was entered on January 25, 1999, Adam and Jami had six-year-old twins, Sarah and Michael. Adam owned an 11 percent share of the Endeavor Talent Agency. In 1999, his yearly income was about $1,110,000. As part of the dissolution judgment, Adam received his 11 percent interest in the Endeavor Talent Agency. Jami received the family home in Encino which was encumbered by a $510,000 mortgage. The parties agreed that Adam would pay a total of $5,020 in monthly child support for the twins plus an additional amount if he received a bonus. The parties also agreed that Jami would receive spousal support payments until September 15, 2002.

B. The November 8, 2002 Child Support Order

On August 28, 2001, Jami filed an order to show cause seeking an increase in child support. Jami argued that there was a great disparity in the lifestyle the twins had with her compared to the lifestyle they had with Adam. On November 8, 2002, Judge Lee Edmon ordered the child support payments increased to the guideline support amount of $13,485 per month per child for a total of $26,971 per month retroactive to September 1, 2001.

In a statement of decision dated December 4, 2002, Judge Edmon ruled: the children's reasonable needs were not currently being met by the existing January 25, 1999 child support order; Adam's income had increased from $1.1 million to over $3.6 million since the January 25, 1999 support order; there was a great disparity in the lifestyle that the children were able to enjoy with Adam; and Adam had failed to establish the uniform child support guideline should not be followed. Judge Edmond's December 4, 2002 statement of decision states: "The Court finds it is appropriate to apply in this case the well-established principles (1) that the child's need is measured by the parent's current station in life, (2) that where the child has a wealthy parent that child is entitled to and therefore needs something more than the bare necessities of life, (3) that where the supporting parent enjoys a lifestyle that far exceeds that of the supported parent, child support must reflect the more opulent lifestyle even though it may benefit the supporting parent[,] and (4) that child support may appropriately improve the standard of living of the supported parent to improve the lives of the children. ([Fam. Code, § 4053 subds. (a) &(f); In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 293-294; In re Marriage of Chandler (1997) 60 Cal.App.4th 124, 129; In re Marriage of Catalano (1988) 204 Cal.App.3d 543, 552].)" In addition, Judge Edmon ruled that Adam failed to demonstrate that it was in the children's best interests to impute income to Jami for purposes of determining the child support level.

C. The July 15, 2005 Child Support Order

Adam did not appeal from the November 8, 2002 child support order. Rather, on December 30, 2004, Adam filed an order to show cause for modification of child support. Adam asserted Jami had misrepresented to Judge Edmon a need for more child support so the twins could receive a more comparable lifestyle to the one provided for them by Adam. Also, Adam disagreed with the manner in which Jami conducted her financial affairs. The order to show cause alleged that: Adam and Jami share joint equal legal and physical custody; Adam is now married to Trina Venit; and they live with Trina's daughter and their two children, Olivia and Matthew. Jami is married to Patrick Patterson, who is employed by the Los Angeles Fire Department. Patrick and Jami live with his two minor children and the twins. Adam argued the child support should be reduced to $6,000 per month for the twins because: Jami was misusing the child support; Jami was receiving more child support than she reasonably needed and was supporting her new husband and his children; and Jami had failed to return to gainful employment to contribute to the twins' or her own expenses.

In support of his request to modify the child support order to reduce his payments to $12,000 per month, Adam filed the declaration of Susan Miller. Ms. Miller, a vocational counselor, interviewed Jami in November 2001 and prepared a report in December 2001. Ms. Miller believed Jami could obtain employment as an event planner with an earning capacity of $55,000 to $60,000 per year. Ms. Miller's opinion was based on the 2001 data as well as market conditions. At the March 23, 2005 hearing, Judge Steinberg noted that Ms. Miller's declaration was predicated on an interview which was conducted several years earlier. Judge Steinberg explained the issue of Jami's employment was being raised in a backhanded context because Judge Edmon had previously considered the issue. Adam's counsel, Vicki Greene, then argued that the purpose of Ms. Miller's declaration was to establish that Jami should be working. Rather, according to Ms. Greene, Adam was not asserting that income should be imputed to Jami. This was because, even if $50,000 income were imputed to her, it would not affect the guideline amount by more than $300 or $400. Judge Steinberg ruled Ms. Miller's declaration was irrelevant.

Also in support of his order to show cause, Adam detailed instances of personal animosity. Adam complained that Jami and her new husband gave "generous" contributions to the Stephen S. Wise elementary school where the twins as well as Patrick's children attend. According to Adam, Patrick's children attended the school even though they are not Jewish. Adam believed the support payments were paying for Jami and Patrick to enjoy a generous lifestyle. Adam declared: "I believe I got hit very hard by the Court in 2002, too hard. The Court ordered me to pay child support of more than $26,000 per month. In addition, I pay one-half of our children's private schooling, medical, etc. . . . It is just that [Jami] convinced the Court that she needed more money to buy a new house, join a country club, travel, etc. My income also had increased dramatically, from about $1 million (which was the highest year of my marital income and in the last year of our marriage) to more that $3.6 million gross per year." According to Adam, Jami did not do what she said that she would do if the money were awarded to her. As previously noted, Adam did not appeal from the November 8, 2002 order directing he pay $26,971 per month.

Adam reiterated that he did not want to have the funds paid for support to benefit Jami and her new family. Adam admitted he had purchased a new home in Beverly Hills but stated he had earned the right to do so. According to Adam, Jami wanted to have, but was not entitled to share, the same lifestyle that he was accustomed to having. Because Jami did not actually purchase a new home and take the twins on vacations other than to Hawaii, Adam claimed that his support obligation should be reduced. Adam further anticipated that his income was likely to increase even more in the future but believed that his earning capacity should not require him to pay more support. Adam believed that Jami refinanced her home so that she could save some of the child support for the time when it terminates.

Adam also attached the declaration of certified public accountant David J. Swan in support of the order to show cause. Mr. Swan declared that, based on Jami's financial records, she had spent only an average of $14,388 per month on the twins for the past 20 months. Mr. Swan concluded: "The present child support order appears to exceed the needs of the supported children even when 100% of the residence expenses are attributed to them. Furthermore, the present order exceeds the $24,396 adjusted average monthly living expenses of [Jami's] entire household, and it appears that [Jami's] husband contributes a minimal amount toward the household operating expenses."

In response to the order to show cause, Jami argued Adam had failed to establish a material change of circumstances between the existing November 8, 2002 order and the current order to show cause filed on December 30, 2004 to justify a r...