Look v. Penovatz

• Decision Date: 08 April 2019
• Docket Number: H044754
• Court: California Court of Appeals Court of Appeals
• Parties: William B. LOOK, Jr., Plaintiff and Appellant, v. Bela PENOVATZ, Defendant and Respondent.

34 Cal.App.5th 61

245 Cal.Rptr.3d 777

William B. LOOK, Jr., Plaintiff and Appellant,

v.Bela PENOVATZ, Defendant and Respondent.

H044754

Court of Appeal, Sixth District, California.

Filed April 8, 2019

William B. Look Jr., pro. per., for Appellant.

Law Office of Peter A. Lindstrom, Peter Alan Lindstrom, San Jose, for Respondent.

Greenwood, P.J.Appellant William Look, Jr. appeals an order of the trial court denying his request for reimbursement under Family Code section 3950¹ for funds he expended while Respondent Bela Penovatz’s then-minor son lived in Look’s household. During the relevant period, Penovatz (the child’s father) paid child support, pursuant to a court order, to the child’s mother, who cohabitated with Look. As Penovatz satisfied his child support obligation under the law, we conclude Look was not entitled to reimbursement under Family Code section 3950,² and thus affirm the trial court’s judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND ³

A. Factual Background

In 2016, the trial court, in a bench trial, heard evidence regarding Look’s claim for reimbursement for money he alleged he expended supplying necessaries to Penovatz’s son, Christopher. Based on that evidence, the trial court issued a statement of decision and judgment⁴ in December 2016, finding in favor of Penovatz and denying relief to Look. The court heard testimony from Look, Penovatz, Christopher, and Wendy Rothert, Christopher’s mother. We glean the following from the record created during the trial.

Penovatz and Rothert dissolved their marriage in 2006 in San Benito County. In April 2006, the San Benito County court entered an amended judgment on reserved issues that included orders requiring Penovatz to pay child support to Rothert for Christopher, born in 1997, based on Penovatz having 69 percent timeshare with Christopher, and Rothert having 31 percent. The court also ordered both parties to maintain health insurance coverage for Christopher, but noted Rothert did not have such coverage available at the time of the judgment. In 2007, the court modified Penovatz’s child support obligation, such that he owed Rothert $400 per month, based on the same time share percentages set forth in the judgment. Christopher’s primary residence was with Penovatz in Hollister.

At the end of 2010 or beginning of 2011, Rothert began living with Look in Carmel Valley. Look described his relationship with Rothert as a "domestic partnership" and "essentially [a] husband and wife relationship." Look and Rothert did not have a formal agreement requiring Rothert to contribute to living expenses; she would contribute on a voluntary basis what she could, when she could. Look did not expect Rothert to repay him for room or board. In August 2011, Penovatz and Rothert agreed to change the custody arrangement so that Rothert and Look’s home would become Christopher’s primary residence. Christopher lived with Rothert and Look from that time through his graduation from high school in June 2015, and still lived there at the time of the trial in this matter in August 2016.

During their conversations about changing custody, Penovatz and Rothert discussed modification of the child support order. They disagreed at trial as to whether they reached resolution of the issue. Penovatz believed they signed a written agreement to increase his support payment to $540 per month; he claimed his attorney drafted a stipulation based on the parties’ agreement regarding support and custody, which he and Rothert signed, along with their attorneys. Rothert’s attorney took the agreement, with the understanding he would file it with the court, but Penovatz never received any court-filed documents modifying the previous orders. Penovatz contended Rothert never sought to enforce the informal agreement to increase support to $540; nor did she or Look ever ask Penovatz directly for additional contributions to Christopher’s living expenses.

Rothert denied reaching any agreement regarding child support; she contended $540 was an offer made by Penovatz, to which she made a counteroffer of over $1,500 monthly, through her attorney. Look argued this counteroffer represented statutory child support.⁵ Rothert said "nothing" happened after the attorney made that counteroffer. She denied signing an agreement to modify child support to $540 per month; the only agreement she signed was one concerning custody. There was no dispute Penovatz and Rothert never obtained a court order increasing Penovatz’s child support obligation. Penovatz continued to pay $400 per month and provide health insurance for Christopher through his graduation from high school in June 2015.⁶

Look testified at trial regarding his reasons for not encouraging Rothert to seek a court order increasing Penovatz’s child support obligation. He alleged Penovatz "childnapped" Christopher from Carmel High School and took him back to Hollister once he learned statutory child support would be over $1,500 per month. Look contended Penovatz only allowed Christopher to return once he believed Rothert agreed to accept a lower amount of child support.⁷ Penovatz and Christopher both have Serbian passports, and Penovatz owned property in Serbia; Look was concerned Penovatz would again detain Christopher, or perhaps remove Christopher to Serbia, if Rothert persisted in seeking increased support. Moreover, Look alleged Rothert could not afford to continue having an attorney represent her.⁸ Look testified it was "[his] decision not to force the decision on the support and just continue[ ] supporting [Christopher]." Therefore, Christopher continued to live primarily with Rothert and Look,⁹ and Penovatz continued to pay child support pursuant to the 2007 child support order.

B. Procedural History

Although not part of the record on appeal, there is no dispute Look filed a complaint against Penovatz for relief under section 3950 in February 2015.¹⁰ After the trial court overruled his demurrer, Penovatz answered the complaint.

Look served form interrogatories on Penovatz; relevant to this appeal, he asked Penovatz for information about his income in the last three years, including asking for copies of his last three tax returns. Penovatz objected to the interrogatories on privacy grounds, among other reasons. In July 2015, Look filed a motion to compel Penovatz’s further responses to the interrogatories, arguing information about Penovatz’s employment and rate of pay were relevant to the issue of reimbursement under section 3950, as it fell within the statutory scheme governing child support, and the requested information concerned whether Penovatz "failed to pay support according to his circumstances ...." Penovatz opposed the motion.

The trial court denied Look’s motion to compel as it pertained to the financial information, finding Look failed to meet his burden to show that the requested information was relevant to a claim or defense in the action. Stating that "it is well established that an individual has a legally protected privacy interest in his or her financial affairs," the court determined the burden fell on Look to "demonstrate that the information sought is ‘directly relevant’ to a claim or defense, ‘essential to the fair resolution of the lawsuit,’ and not available through less intrusive means." The court believed Look was arguing that he had to prove Penovatz "neglected to provide adequate support despite the ability to do so," such that he needed to "discover [Penovatz’s] financial information to demonstrate that [Penovatz] had the ability to pay for Christopher’s housing, food, clothing, and medical and school expenses." However, as Look cited legal authority indicating the inability to pay child support was a defense to an action for violation of a judicial order, the court found the authorities "inapplicable because this [was] not an action for violation of a judicial support order." Because Look did not cite any authority indicating inability to pay was a defense to a cause of action under section 3950, and because Penovatz did not allege in his answer that he lacked the ability to pay for Christopher’s common necessaries of life, the court denied Look’s motion to compel as it pertained to the requests for financial information.¹¹

In August 2016, the court held a two-day bench trial, at which Look, Penovatz, Christopher, and Rothert testified. The court issued its statement of decision in favor of Penovatz. Relevant to this opinion, the trial court found, once Christopher moved in with Rothert and Look, "[c]ustody and support orders were never modified with the court." Penovatz and Rothert, with their attorneys, negotiated an increase in support to $540 per month, but there was no record that Rothert or her attorney signed a written agreement. Rothert did not file any of the alleged custody or support agreements with the trial court, nor did she file "a subsequent motion or order to show cause to modify child support or custody." Penovatz "continued to pay child support of $400 per month pursuant to the court order on file and [Rothert], despite the negotiations, never requested that [Penovatz] pay more than said amount. [Penovatz] has always paid the court ordered child support until the time that Christopher turned 18 and completed high school." The trial court did not give credence to Look’s allegations that Rothert failed to seek modification of child support based on a fear Penovatz would abduct Christopher to Serbia, or because she could not afford an attorney. Thus, the court found, "[t]here was no credible evidence to support a finding that Ms. Rothert was precluded from filing a motion to modify child support, if it was warranted. Accordingly, the court concludes that Ms. Rothert could have, but did not file a motion to modify child support."

Based on the evidence, the trial court determined Penovatz did not neglect Christopher, noting, amongst other things, "there was no dispute that [Penovatz] has always paid child support as ordered by...