Zucker v. Zucker (In re Zucker)

• Decision Date: 03 March 2022
• Docket Number: B281051 (Cons. w B284981)
• Citation: Zucker v. Zucker (In re Zucker), 75 Cal.App.5th 1025, 291 Cal.Rptr.3d 183 (Cal. App. 2022)
• Parties: IN RE the MARRIAGE OF Kim and Mark S. ZUCKER. Kim Zucker, Appellant, v. Mark S. Zucker, Respondent.
• Court: California Court of Appeals

75 Cal.App.5th 1025

291 Cal.Rptr.3d 183

IN RE the MARRIAGE OF Kim and Mark S. ZUCKER.

Kim Zucker, Appellant,

v.Mark S. Zucker, Respondent.

B281051 (Cons. w B284981)

Court of Appeal, Second District, Division 4, California.

Filed March 3, 2022

As Modified on Denial of Rehearing April 1, 2022

Certified for Partial Publication.^*

Law Offices of Robert M. Cohen, James L. Keane, Los Angeles, Yvonne T. Simon and Robert M. Cohen, Beverly Hills, for Appellant.

Kibre & Horwitz, Joseph Kibre, Beverly Hills; Greines, Martin, Stein & Richland and Marc J. Poster, Los Angeles, for Respondent.

WILLHITE, Acting P. J.

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.¹They 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)^***

III.MARK'S APPEAL IN PHASE I

Mark contends that the trial court erred by invaliding the spousal support provision of the PMA, which was entered in 1994, as unconscionable based on circumstances existing at the time of enforcement.He raises an issue on which California law is unsettled, an uncertainty created by the timing and intent of an amendment to the Family Codeeffective 2002(the addition of subd. (c) to § 1612 ), and the decisions in In re Marriage of Pendleton & Fireman(2000)24 Cal.4th 39, 99 Cal.Rptr.2d 278, 5 P.3d 839( Pendleton ), In re Marriage of Howell(2011)195 Cal.App.4th 1062, 126 Cal.Rptr.3d 539( Howell ), andIn re Marriage of Facter(2013)212 Cal.App.4th 967, 152 Cal.Rptr.3d 79( Facter ).Indeed, as noted by a leading treatise, the state of the law is "unclear if a trial court is required to consider whether a spousal support limitation or waiver in a premarital agreement executed between 1986[the effective date of California's adoption of the Uniform Premarital Agreement Act (UPAA)] and 2002 is unconscionable at the time of enforcement, the time of execution, or both."(Hogoboom, et. al. Cal. Practice Guide: Family Law (Rutter Group 2021), p. 9-78, § 9:177.4;see alsoIn re Marriage of Miotke(2019)35 Cal.App.5th 849, 860–861, 248 Cal.Rptr.3d 1( Miotke )[noting uncertainty in the law].)

Attempting to provide some clarity, we hold, for reasons explained below, that in considering whether a spousal support agreement executed between 1986 and 2002 is enforceable, the court is not limited to a determination under section 1615, subdivision (a)(2) whether the agreement was unconscionable when executed.Rather, the court retains the power under section 1612, subdivision (a)(7)(identified in Pendleton, supra,24 Cal.4th at pp. 48–49, 99 Cal.Rptr.2d 278, 5 P.3d 839) to shape public policy regarding premarital spousal support agreements to the extent not inconsistent with Legislative declarations of such policy, and to declare (as suggested though left open in Pendleton, id. at pp. 53–54, 99 Cal.Rptr.2d 278, 5 P.3d 839 ) that a premarital spousal support agreement is unenforceable as against public policy solely because it is unconscionable at the time of enforcement.

A.Provisions of the PMA Relating to Spousal Support

Article 13 of the PMA governed spousal support.In Article 13, the parties affirmed that their counsel believed contemporaneous and existing California public policy did not permit premarital agreements limiting spousal support.Nonetheless, "the parties intend and desire to have this Agreement resolve their respective rights and obligations to the fullest extent permissible regarding the support of [Kim] in the event the marriage of the parties terminates by reason of a permanent separation, dissolution or divorce."

Further, the parties agreed that if California law did not recognize limitations on spousal support, Article 13 would be of no force or effect.However, "the parties further agree that if prenuptial agreements regarding spousal support of the nature set forth herein become enforceable under California law, either by reason of a statutory change or by reason of a judicial determination, ... then the provisions of this Article 13 shall fully apply."

With respect to spousal support, Kim and Mark mutually relinquished "to the full extent permitted by law any and all right, entitlement or award of spousal support."The PMA set forth that Mark agreed to pay Kim temporary and permanent spousal support according to a schedule, based on the number of years of their marriage.If the marriage was less than two years, Mark would pay no spousal support, but payments thereafter would increase as the marriage lengthened, up to $6,000 a month after 11 years.These payments would be adjusted to reflect changes in the CPI.

Finally, the parties agreed that "no court shall have or retain any power or jurisdiction to extend, increase, decrease or otherwise modify the payments of Spousal Support provided in this Article 13 or to require that Mark pay any other amounts as Spousal Support or alimony, regardless of changed circumstances or changes in the law existing at any time."The spousal support provisions were agreed to be severable from the rest of the PMA.

At trial, Kim argued Mark's spousal support obligation of $6,000 per month with a one-time payout of $10,000 was unconscionable at the time of enforcement and therefore unenforceable.Relying on Facter, supra,212 Cal.App.4th 967, 152 Cal.Rptr.3d 79, Kim's brief highlighted the disparities in the parties’ income.Mark had a $32 million net worth, $4 to $5 million yearly income (with a monthly net of between $376,000 to $682,453) while Kim had stayed at home and raised the parties’ children during the marriage and had no current employment.

B.Trial Court Ruling

On January 30, 2014, the court issued its statement of tentative decision.⁹The court recognized that section 1612, subdivision (c) regarding spousal support provisions did not retroactively apply to the spousal support provision of the PMA.¹⁰However, relying on Pendleton, supra,24 Cal.4th 39, 99 Cal.Rptr.2d 278, 5 P.3d 839andFacter, supra , 212 Cal.App.4th 967, 152 Cal.Rptr.3d 79, the court concluded that it had the authority to determine whether the PMA was unconscionable at the time of enforcement.

Examining the circumstances present in Facter(in which the Court of Appeal found a premarital waiver of spousal support unconscionable at the time of enforcement), the trial court concluded that "[t]he facts of this case are ... even more extreme for Kim."In Facter, the wife had a high-school education and was unemployed throughout the 16-year marriage, while the husband had an annual income of $1 million and a net worth of $10 million.Here, Kim's forensic accountant had opined that Kim would need $86,000 per month to meet the marital lifestyle based on an income-available approach, while an expenditure approach would yield $37,000 per month.The trial court adopted the expenditure approach because there was no community property per the PMA.Kim, like the wife in Facter, was unemployed, similarly educated, and spent the marriage raising the couple's six children.The trial court found the amount Kim would receive under the PMA—"merely 10% of the probable order without the agreement"—was unconscionable.

C.Discussion

Mark contends that the trial court did not have the authority to find the spousal support provision of the PMA unenforceable as being unconscionable at the time of enforcement.We disagree.Our explanation of our decision requires an examination of the state of the law when the parties entered the PMA and subsequent developments.

1.The Uniform Premarital Agreement Act

Effective 1986, the Legislature adopted the Uniform Premarital Agreement Act (UPAA), now Family Code section 1600 et seq.¹¹In 1994, when the parties in the present case entered the PMA, section 1612, subdivision (a) provided, as it does now, that "[p]arties to a premarital agreement may contract with respect to all of the following."(Stats. 1992, ch. 162, § 10.)It listed various specific...