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In re Marriage of Haroonian

Court of Appeal of California
Sep 8, 2008
No. B196923 (Cal. Ct. App. Sep. 8, 2008)

Opinion

B196923

9-8-2008

In re Marriage of CYRUS HAROONIAN and NAHIDEH HAROONI. CYRUS HAROONIAN, Appellant, v. NAHIDEH HAROONI, Respondent.

Cyrus Haroonian, in pro. per., for Appellant. No appearance for Respondent.

Not to be Published


FACTS

Appellant has submitted a brief that is replete with irrelevant "facts" from outside the record. If this error recurs in any of appellants pending appeals, the brief will be stricken. (Cal. Rules of Court, rule 8.204(e)(2)(B).) Every fact contained in the brief must be supported by a citation to the record. (Cal. Rules of Court, rule 8.204(a)(1)(C).)

On April 17, 2006, appellant Cyrus Haroonian (Husband) filed a petition to dissolve his marriage to respondent Nahideh Harooni (Wife). The parties were married in 1999, separated in 2004, and have two children born in 2001 and 2002. Husband listed minimal assets—including furniture, cars, jewelry and cash—that he valued at $14,925, and a $4,000 debt. He claimed a monthly income of $2,000 from his job as an electrical contractor, and monthly expenses of $1,086.

In her response to the dissolution petition, Wife requested a restraining order against Husband; monitored child visitation for Husband; and $7,000 in monthly spousal and child support. Wifes knowledge of English is limited, as she is a recent immigrant to this country. Wife declared that Husband incites their children, causing them to hit her, pull her hair, kick and punch her, throw food and talk back to her. Wife also declared that Husband "earns a very good living from his electrical contracting company," which enabled the family to live in a nice home in Pacific Palisades. Husband is physically and emotionally abusive to Wife, and has threatened to kill her.

At a hearing on August 7, 2006, the court made several orders: it gave Husband visitation rights; it forbade the parties from making derogatory remarks; it required the parties to participate in therapy; it issued a restraining order against Husband; it directed an exchange of financial information and income tax returns; it ordered Husband to pay the rental costs for the residence occupied by Wife and the couples children; and it ordered Husband to advance $500 to Wife every other Monday.

Wife filed her income and expense declaration on August 22, 2006. She estimated Husbands gross monthly income to be $50,000, and listed her monthly expenses, as the custodial parent, as $6,309. She receives food stamps and public assistance amounting to less than $1,000 per month. Husband filed his declaration on August 29, 2006. He estimated Wifes income to be $1,000 from working at home making clothing and jewelry. He listed his monthly income at $3,000, and his expenses as $1,095. At a hearing on August 29, 2006, the court ordered Husband to produce his personal and corporate tax returns, and his profit and loss statement, and to cooperate with Wife to find a suitable apartment for her and the children.

In September 2006, Wife filed papers seeking to secure Husbands compliance with the courts August 7 order. Husband was already in arrears on his obligation to pay Wife $500 fortnightly, and she needed the money to buy food for the children. Furthermore, Husband failed to produce his financial records, as ordered by the court. Wife sought sanctions against Husband because he failed to respond to Wifes July 2006 discovery requests. The court granted Wifes motion: it directed Husband to respond to discovery and to pay attorney fees to Wife of $2,000.

Wife filed an application seeking an advance of $9,000 from Husband so that she could rent a new apartment. Wife was being evicted from her existing apartment because Husband refused to pay rent in September, October and November. Husband controls all of the couples money and assets. Husbands 2004 tax return showed he had an income of $69,306, and he declared gross receipts of $642,959 from his electrical contracting business. Wife faced having to move into a homeless shelter with the children because she does not have family or friends to take her in. She needed money to pay first and last months rent and a security deposit.

Husband failed to produce his 2005 tax return.

Wifes application for an advance was heard on November 6, 2006. Husband and his attorney were present at the hearing. The court observed that the couples children "need to have a place to live. They need to have some stability in their life." It criticized Husband for devoting his financial resources to "litigating the case" instead of renting a home for his children. The court noted that Husband failed to file an income and expense declaration with his responsive papers; however, the court believes that Husband "earns more money than he indicates," saying, "I dont find his representation that he makes $3,000 per month to be accurate." Moreover, the court stated, Husband "hasnt been paying the support that was ordered by this court . . . ." The court ordered Husband to advance Wife $5,000 forthwith, and to assist her in finding new lodgings. The court also ordered Husband to pay $1,500 for Wifes attorney fees, at the rate of $100 per month.

On February 15, 2007, Husband filed his notice of appeal. He appeals from (1) the order of August 7, 2006, directing him to pay $500 to Wife fortnightly and ordering him to pay rent on an apartment for Wife and the children, and (2) the order of November 6, 2006, directing him to advance $5,000 to Wife to rent an apartment and awarding attorney fees and costs of $1,500 to Wife.

DISCUSSION

1. The Court Order of August 7, 2006

Part of Husbands appeal is untimely. The order directing Husband to pay $1,000 per month to Wife and to pay her rent was signed by the judge and filed on August 7, 2006. Husband had, at most, 180 days in which to file an appeal challenging the ruling. (Cal. Rules of Court, rule 8.104(a)(3), (d)(3).) The 180 days expired on February 5, 2007. Husbands appeal on February 15, 2007, is tardy; as a result, we have no jurisdiction to consider Husbands belated challenge to the August 7 order. (In re Marriage of Weiss (1996) 42 Cal.App.4th 106, 118-119.) The trial courts August 7, 2006, order is final and enforceable.

2. The Court Order of November 6, 2006

The court order of November 6, 2006, was appealed in a timely manner, and it is subject to review. In marital dissolution cases, "[w]hen a court renders an interlocutory order collateral to the main issue, dispositive of the rights of the parties in relation to the collateral matter, and directing payment of money or performance of an act, direct appeal may be taken." (In re Marriage of Skelley (1976) 18 Cal.3d 365, 368.) An order for the payment of support or attorney fees "`is in the nature of a final judgment [and] is appealable" because nothing remains for judicial determination except the issue of compliance or noncompliance with the order. (Ibid.; In re Marriage of Weiss, supra, 42 Cal.App.4th at p. 119.) Thus, the order directing the payment of $5,000 to Wife and the payment of Wifes attorney fees is directly appealable.

Family support orders are reviewed under the deferential abuse of discretion standard. (In re Marriage of Morrison (1978) 20 Cal.3d 437, 454.) Attorney fees and costs awards are similarly reviewed for an abuse of discretion. In this regard, "the trial court is not restricted in its assessment of ability to pay to a consideration of salary alone, but may consider all the evidence concerning the parties income, assets and abilities." (In re Marriage of Sullivan (1984) 37 Cal.3d 762, 768.) "`[T]he cases have frequently and uniformly held that the court may base its decision on the [paying spouses] ability to earn, rather than his [or her] current earnings . . . for the simple reason that in cases such as this, current earnings give a grossly distorted view of the paying spouses financial ability." (Id. at p. 769.)

The court did not abuse its discretion by ordering Husband to advance $5,000 for first and last months rent and a security deposit on an apartment for Wife and the children. In August 2006, Husband was ordered to pay Wifes rent. He failed to obey the order for the next three months. As a result, Wife and the children were evicted after an unlawful detainer proceeding. It is Husbands fault that he should now have to advance a large sum of money to enable Wife to rent another apartment in order to have living accommodations for the children.

Though Husband claims to lack money, the trial court disbelieved Husbands claims of poverty. His 2004 tax return showed a personal income of nearly $70,000 and business receipts of $ 642,959. As an electrical contractor, Husband has the trade skills and the ability to earn an income and provide food and lodging for his children. As Wife declared, Husbands income was sufficient during the marriage to pay for a nice home in Pacific Palisades. By contrast, Wife is a recent immigrant whose sparse knowledge of English limits her employment opportunities and who, in any event, must take care of two young children, further limiting outside employment. It is a telling moral failure that Husband would rather pay thousands of dollars to his attorney to fight Wife in court instead of using the money to shoulder his responsibilities to his family.

The same reasoning applies to the order directing Husband to pay $1,500 in attorney fees, at the rate of $100 per month. Wifes need for an attorney arose from Husbands refusal to pay her rent, in violation of the August 2007 court order. Wife was placed in desperate straits: she and the children faced homelessness as a result of Husbands conduct. The trial court acted well within its discretion by ordering Husband to pay attorney fees that were necessitated by Husbands violation of a court order. Husbands income is adequate to cover the fees at the rate of $100 per month.

Husbands brief contains arguments on issues not listed in his notice of appeal, such as a substitution of attorney or failure to meet and confer on discovery matters. We do not consider any issue that is not specifically listed in the notice of appeal.

DISPOSITION

The appeal from the order of August 7, 2006, is dismissed for lack of jurisdiction because it was untimely filed. The trial courts order of November 6, 2006, is affirmed. Appellant Cyrus Haroonian to bear all costs on appeal.

We concur:

ASHMANN-GERST, J.

CHAVEZ, J.


Summaries of

In re Marriage of Haroonian

Court of Appeal of California
Sep 8, 2008
No. B196923 (Cal. Ct. App. Sep. 8, 2008)
Case details for

In re Marriage of Haroonian

Case Details

Full title:In re Marriage of CYRUS HAROONIAN and NAHIDEH HAROONI. CYRUS HAROONIAN…

Court:Court of Appeal of California

Date published: Sep 8, 2008

Citations

No. B196923 (Cal. Ct. App. Sep. 8, 2008)