In re Zucker
| Decision Date | 03 March 2022 |
| Docket Number | B281051,B284981 |
| Parties | In re the Marriage of KIM and MARK S. ZUCKER. v. MARK S. ZUCKER, Respondent. KIM ZUCKER, Appellant, |
| Court | California Court of Appeals Court of Appeals |
CERTIFIED FOR PARTIAL PUBLICATION [**]
Order Filed Date: 4/1/2022
APPEAL from a judgment of the Superior Court of Los Angeles County. No. BD 546573 Robert Alan Schnider, Judge [*] . Reversed and remanded in part, affirmed in part.
Law Offices of Robert M. Cohen, James L. Keane, Yvonne T. Simon and Robert M. Cohen for Appellant.
Kibre & Horwitz, Joseph Kibre; Greines, Martin, Stein & Richland and Marc J. Poster for Respondent.
The opinion filed March 3, 2022, in the above-entitled matter is ordered MODIFIED as follows:
On page 56, in the first full paragraph, the two references to "child support" are changed to "spousal support."
On page 61, delete the last three full paragraphs and replace them with the following:
After entering a fee order on March 17, 2017, the court's amended fee order, dated May 10, 2017, superseded that order in certain respects and found that "[u]sing $3, 539, 469 as the fees and expert costs incurred by [Mark] and $3, 706 672 as the fees and costs incurred by [Kim], plus $301, 046 for court reporting and privately compensated reference judge fees produces total charges incurred by both sides of $7 547, 637. Using a 70% share of the total fees to [Mark] as a starting point produces a fee and cost responsibility of $5, 283, 346. Considering the payment of his own fees, his payments to ARC, his payments to U.S. Legal and the advance of $923, 383 for fees and costs to [Kim] means that [Mark] has already paid $4, 764, 258 of the total fees and costs leaving a balance of $519, 088 to reach the 70% amount. This would be the starting point for further contribution of fees to [Kim].
This latter figure, resulting from an error of arithmetic, was later corrected on May 30, 2017 to $1, 190, 000.
On page 69, the paragraph under subheading 2 is deleted and replaced with the following:
Relying on the March 17, 2017 fee order, Mark contends the trial court's arithmetic regarding the fee award was in error because the total amount of $5, 250, 000 minus $4, 820, 000 is $430, 000, not $480, 000. Mark's argument is based upon a prior and superseded version of the fee order that was later modified as set forth ante. We therefore reject his argument.
On page 72, the disposition is changed to remove the second full sentence beginning with the words "The attorney fee award is corrected."
These modifications change the judgment.
The petitions for rehearing are DENIED.
In this contested marital dissolution proceeding, the trial court held a bifurcated, two-phase trial which considered (1) the validity of Kim and Mark Zucker's 1994 premarital agreement (PMA) limiting community property rights and spousal support (phase 1), and (2) determining the awards of child support, spousal support, and attorney fees (phase 2). The case was intensively litigated; the two phases of the trial consumed 57 days. Both Mark and Kim appeal and cross-appeal.[1] They raise a myriad of issues challenging many aspects of the trial court's rulings.
In Kim's appeal, Kim challenges aspects of the trial court's rulings upholding the community property provisions of the PMA and the court's awards of spousal and child support. In Mark's appeal, Mark challenges the trial court's finding that the provision in the PMA limiting spousal support was unconscionable at the time of enforcement. In their respective cross-appeals, Mark and Kim each challenge aspects of the trial court's attorney fee award.
We reject all challenges to the trial court's rulings, except: (1) we correct an arithmetical error in the trial court's attorney fee award, and modify the order to direct Mark to pay Kim $870, 000; and, (2) vacate the trial court's ruling on Kim's request for order of March 14, 2014 seeking to modify the temporary spousal support order, and remand for the trial court to determine the amount of pendente lite spousal support from the date of Kim's request. In all other respects, we affirm.
In the published portion of this opinion, we hold that in considering whether a spousal support agreement executed between 1986 and 2002 is enforceable, the court is not limited to a determination under Family Code section 1615, subdivision (a)(2) whether the agreement was unconscionable when executed. Rather, the court retains the power under Family Code section 1612, subdivision (a)(7) to shape public policy regarding premarital spousal support agreements to the extent not inconsistent with Legislative declarations of such policy, and to declare that a premarital spousal support agreement is unenforceable as against public policy solely because it is unconscionable at the time of enforcement.
PHASE I (VALIDITY OF THE PMA)
The parties met sometime in 1993, when Mark was 33 years old, and Kim was 29. Kim became pregnant in June 1993 and at Mark's request had an abortion. After Kim became pregnant again in late 1993, Mark told her to terminate the pregnancy, but she refused to do so. Thereafter, in early January 1994, the parties discussed marriage.
Mark's attorney prepared the PMA, and on January 28, 1994, the parties signed it. Kim and Mark were married on February 6, 1994. During their marriage, they had six children.[2] They separated on February 21, 2011, and Mark filed a petition for dissolution on June 17, 2011.
At trial, Kim contended that due to her emotional health issues she did not voluntarily enter the PMA and that its spousal support provisions were unconscionable. (Fam. Code, §§ 1612, 1615.)[3]
The parties had disparate economic backgrounds. Mark is the co-founder and co-CEO of a hedge fund, Dorchester Capital Partners, and founder and co-CEO of the Dorchester Capital Secondaries series of funds. At the time he met Kim, Mark was a bond broker with Libra Investments. Mark had a net worth of about $10 million and made about $2 million a year.
Kim had a history of psychological troubles. When she was 12, her parents divorced. Kim developed an eating disorder (anorexia), for which she was hospitalized. She attended and graduated from a public high school. After attending UCSD for part of a year, she variously took classes at UCLA Extension, Parsons School of Design in New York, and she also attended cooking school, working as a nutritionist.
In 1988, after leaving UCSD, Kim admitted herself to the Westwood Psychiatric Hospital for treatment of her eating disorder. After stealing a prescription pad and obtaining medication with it, she was transferred to a locked ward where she was raped at knifepoint.
In 1989, Kim married Ronaldo Rossi, whom she had met in a 12-step program.[4] Kim's father arranged the couple's PMA, which they executed the day before their marriage. Kim claimed she did not fully understand the effect of the PMA she had made with Rossi. The marriage was dissolved in July 1992.
According to Mark, he was unaware of Kim's past mental health struggles. Kim did not tell Mark that when she was about 14 years old, she was hospitalized for anorexia. Mark was not aware she had only attended one year of college, or that she had been sexually assaulted while at the psychiatric hospital in Westwood. Mark and Kim did not have any discussions about how the rape affected her emotionally.
Mark knew that although Kim was working, she was being supported by her mother. Mark did not know that she was receiving social security benefits at the time of their PMA. He learned this fact after they were married a year when they were preparing their taxes. He also found out during their dissolution proceedings that Kim had a prenuptial agreement in her previous marriage.
Mark observed that in contrast to her claimed issues, during the marriage Kim kept her own bank accounts and did her own shopping. Further, Kim helped supervise the 1995 remodel of the Malibu home Mark purchased and Mark believed she capably performed this task. However, Kim disputed Mark's contention, noting that the construction project manager observed that Mark solely made all decisions regarding the construction.
Kim was the beneficiary of a trust her father set up. Her mother was a trustee and could release the funds to Kim if she wanted to, but she chose not to do so because she believed Kim was incapable of handling the money.
The PMA contained terms that were very unfavorable to Kim. Kim waived her community property interest; would receive a one-time payment of $10, 000 upon moving out of the house; would receive limited spousal support of $6, 000 per month, with modest increases; and waived any inheritance rights which would arise from Mark's death during the marriage. The PMA set forth Kim's net worth as approximately $242, 000 and Mark's as approximately $5.8 million.
The PMA contained a recital of facts, including that both Kim and Mark had their own separate and independent counsel advising them of their rights...
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