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In re Marriage of Sepehrdad

California Court of Appeals, Sixth District
Mar 21, 2008
No. H031094 (Cal. Ct. App. Mar. 21, 2008)

Opinion


In re the Marriage of SIMA SEPEHRDAD and ABBAS SEPEHRDAD. SIMA SEPEHRDAD, Respondent, v. ABBAS SEPEHRDAD, Appellant. H031094 California Court of Appeal, Sixth District March 21, 2008

NOT TO BE PUBLISHED

Santa Clara County Super. Ct. No. FL117720

McAdams, J.

This is a dissolution action between Sima Sepehrdad (wife) and appellant Abbas Sepehrdad (husband), which wife instituted in 2004. In 2006, the court conducted a trial on the remaining financial issues. Husband now challenges the judgment following that trial. He makes four appellate contentions: that he was denied a fair trial; that the court erred in charging him for his post-separation occupation of the family home; that the court failed to make required findings concerning spousal support; and that the spousal support award lacks evidentiary support.

Finding no merit in any of husband’s contentions, we affirm the judgment.

BACKGROUND

The parties married in February 1970 and separated in December 2003.

Proceedings in 2004, including dissolution

In January 2004, wife petitioned for dissolution of the marriage.

When husband failed to respond to the petition, his default was taken in April 2004, and a default judgment was entered against him the following month. The judgment terminated the parties’ marital status as of July 15, 2004. It also operated as a “complete settlement of all property and support rights and obligations between the parties.”

In July 2004, husband moved to set aside the default and judgment. The following month, the court granted the motion and set aside the entire judgment, except that the parties’ marital status remained terminated.

Proceedings in 2005, including arbitration and discovery sanctions

In February 2005, the parties stipulated to binding arbitration to divide personal property. A property division arbitration order was entered the following month.

In March 2005, wife moved for discovery sanctions against husband, seeking both monetary sanctions and issue preclusion. Following a continuance at husband’s request, the matter was heard in June 2005. Pursuant to the parties’ stipulation, the court ordered husband to provide specified discovery, and it documented his admission “that he has no separate property claims to make, nor a right to reimbursement for expenditures of separate or community property.” The issue of fees and costs was reserved.

In July 2005, wife applied once more for discovery sanctions against husband, again seeking both monetary and issue sanctions. The matter was continued to allow husband to arrange for a Farsi interpreter. Wife’s application was heard in November 2005, and a formal order was entered the following month. The court imposed both monetary and issue sanctions on husband for his failure to comply with discovery: it ordered him to pay fees of $6,000 to wife’s attorney, and it precluded him “from presenting any evidence at trial of his alleged claims for reimbursement for payment of community debts after the date of separation.”

Proceedings in 2006, including trial

In the months prior to trial, both parties submitted settlement conference statements. According to husband’s statement, prepared by his then-attorney, there were five open issues: spousal support, retirement accounts, valuation of vehicles, a condominium in Iran, and fees. Wife’s statement likewise listed those five issues but it also included four others: division of the Washington Mutual bank account, division of the Comerica Bank trust account after equalization, loans to husband’s family, and reimbursement claims.

Trial was held in August 2006. Wife appeared for trial with the same counsel who had represented her throughout the dissolution proceedings. Husband was then representing himself, as he had from time to time during the action. He had a Farsi interpreter to assist him at trial.

Wife’s Case in Chief

Wife presented two witnesses. The first was Jean Mackie, the realtor who sold the parties’ home. She testified to husband’s ability to communicate in English, his refusal to pay seller’s closing costs as required by the contract, and wife’s payment of those costs. Wife’s second witness was David Shakker, her brother-in-law, who testified about two loans made with community funds, one to husband’s brother for $10,000 and another to husband’s nephew for $8,000. Husband cross-examined both witnesses.

Following the testimony of her witnesses, wife presented the rest of her case through her attorney.

First, pursuant to an earlier stipulation that bank account statements would be admissible, wife’s attorney presented documents concerning the Washington Mutual bank account and the Comerica Bank trust account.

Next, by offer of proof as to wife’s testimony, her attorney also presented evidence about other financial issues, including valuation of the community property vehicles; the retirement accounts; the condominium in Iran; husband’s post-separation use of the family home; and various factors bearing on spousal support.

Finally, wife’s attorney also asked for fees, as documented in his declaration submitted to the court as part of wife’s trial brief.

At the court’s request, wife confirmed that she would testify as stated by her attorney.

Husband’s Case in Chief

Husband then testified. He began by asking permission to tell the court “the biography of my life country to this country.” The court refused the request, explaining: “it’s not relevant to this proceeding.” The court asked husband to “address the issues” presented by wife.

Husband offered testimony concerning the loans to his brother and nephew. After a confusing exchange on that topic, the court asked husband whether his relatives still owed the money. Husband responded that the amounts at issue were in repayment of earlier loans by the relatives, which had enabled him to buy a liquor license for his business.

Guided by the court’s questions, husband also addressed each of the other issues raised by wife, including the Washington Mutual bank account; the Comerica Bank trust account; the valuation of the vehicles; the retirement accounts; the condominium in Iran; his exclusive possession of the family home for seven months after the parties had separated; and his income as it related to spousal support.

Wife’s Further Presentation

Wife’s attorney then offered the court “a summary of the factors under [section] 4320” of the Family Code, relating to spousal support on which findings could be based. The court accepted it, saying “that’s what I’m going to rely on.” After further discussion, the court stated it would award wife $300 per month in spousal support, as she had requested, remarking that the amount was “well below what it should be.”

Further unspecified statutory references are to the Family Code.

By offer of proof, wife’s attorney then offered rebuttal on two subjects: ownership of the condominium in Iran and the existence of prior loans to husband by his relatives.

The Court’s Oral Ruling

The court then proceeded through each of the nine issues identified by wife in her trial brief, addressing the evidence presented and making oral findings.

The court first divided the two bank accounts equally, with the trust account division subject to equalizing offsets. Furniture was valued and awarded as provided in the arbitration order, which resulted in a credit to husband of $275. As for vehicles, the court valued wife’s at $10,750, as appraised, and it set the value of husband’s two vehicles at $450, in accord with his testimony rather than wife’s higher estimate. Retirement accounts were awarded, with an equalizing payment to wife, consistent with the testimonial and documentary evidence. Concerning the two loans to husband’s relatives, the court awarded them to husband at the value established by wife of $31,336, including accrued interest. As for the condominium in Iran, the court valued it at $80,000 and awarded it to husband with an equalizing credit of $40,000 to wife.

As more specifically relevant to this appeal, the court credited wife in the amount of $1,960 to compensate for husband’s sole possession of the family home following separation – what is known as a “Watts charge.” (In re Marriage of Watts (1985) 171 Cal.App.3d 366, 374.) And it awarded $300 per month in spousal support as “previously noted” based in part on the statutory factors set forth in the summary provided by wife’s attorney. (§ 4320.)

The court then turned to the issue of fees and costs. At that point, husband interjected: “How about the – the certain issue we have not discussed?” The court responded: “Just a moment. Let me get finished first.” The court and wife’s attorney then discussed fees, including sanctions for what the court described as husband’s “rather multitudinous stalling in this case.” Ultimately, the court ordered husband to pay a total of $55,000 of wife’s attorney fees, which included $15,000 as a sanction. (See § 271.)

The court then asked husband what other issues he wanted to discuss.

Husband’s Further Presentation

Husband first addressed the subject of wife’s vehicle, which the court had valued at $10,750, as reflected in a written appraisal that she had submitted to the court. Husband asserted that “the Blue Book” valued the car at $17,650. Wife’s counsel observed that husband’s figure was taken from the “Kelley Blue Book from November of 2003.” The court observed: “I don’t doubt it was worth that three years ago.” But as it also explained: “I value these as of the date of trial not otherwise.”

The court then addressed husband, saying: “Now, what else? You got five minutes.”

Husband brought up the “issue of the condo” saying “I have papers regarding my power of attorney.” The court refused the proffer on several grounds, including the representation by wife’s attorney that the documents had not been produced in discovery.

The court then concluded the hearing, directing wife’s attorney to prepare the written judgment and ordering the parties to share the “per diem fee.”

Judgment

A written judgment was entered in November 2006. It reflects the court’s rulings as to each of the issues presented at trial, including the nine issues identified above plus two others: potential tax liabilities, as to which the court reserved jurisdiction, and the final equalization payment.

Appeal

Husband brought this appeal from the judgment.

Husband makes the following arguments on appeal: that he was denied a fair trial, in violation of his constitutional due process rights, because of judicial bias; that the court erred in imposing a Watts charge; that the court failed to make the required statutory findings concerning spousal support; and that the spousal support award lacks evidentiary support because the marital standard of living was not established. Husband seeks reversal of the judgment and a new trial.

Wife disputes all of husband’s claims on the merits. In addition, she contends that husband forfeited his claims by failing to raise them below.

DISCUSSION

We address each of husband’s claims in turn. In undertaking our analysis, we first describe the governing legal principles, including the applicable standard of review. We then apply those principles to the case before us.

I. Due Process Claim

We begin with husband’s claim that he was denied a fair trial because of judicial bias.

A. Legal Principles

Litigants have “a due process right to an impartial trial judge under the state and federal Constitutions.” (People v. Guerra (2006) 37 Cal.4th 1067, 1111.) “The due process clause of the Fourteenth Amendment requires a fair trial in a fair tribunal before a judge with no actual bias against the defendant or interest in the outcome of the case.” (Ibid.) That right extends not only to criminal defendants but to other litigants as well. As the Supreme Court has recognized, “a party in any proceeding[] ‘is entitled to a trial by a judge who is detached, fair and impartial’ [citation]….” (People v. Scott (1997) 15 Cal.4th 1188, 1206.)

B. Appellate Review

On appeal, we undertake a “review of the record” to determine whether husband “was deprived of his constitutional right to a fair and impartial tribunal.” (People v. Guerra, supra, 37 Cal.4th at p. 1112.) Our task is to “assess whether any judicial misconduct or bias was so prejudicial that it deprived [him] of a fair, as opposed to a perfect, trial.” (Ibid., internal quotation marks omitted.)

C. Analysis

Husband complains that not only was he “handicapped by his limited English and by having no counsel,” but also that “the trial court displayed open favoritism” towards wife and her counsel.

Wife disputes husband’s bias claim on the merits, and she also asserts forfeiture. We address the forfeiture issue first.

1. Forfeiture

Wife observes that husband “never raised his claim of judicial bias” below. Quoting two decisions by the California Supreme Court, wife asserts that it “is too late to raise the issue for the first time on appeal.” (People v. Scott, supra, 15 Cal.4th at p. 1207; accord, People v. Guerra, supra, 37 Cal.4th at p. 1111.)

The two cases cites by wife are distinguishable. In each, the appellant “was fully aware before and during trial of all the facts” later urged “in support of his claim of judicial bias. But he never claimed during trial that the judge should recuse himself or that his constitutional rights were violated because of judicial bias.” (People v. Guerra, supra, 37 Cal.4th at p. 1111; People v. Scott, supra, 15 Cal.4th at p. 1207.)

In this case, by contrast, the circumstances suggest that husband became aware of the asserted unfairness only during the proceedings. (Cf. Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1363 [no forfeiture of challenge to local rule barring oral testimony in marital dissolution trial, despite failure to object during hearing].) Moreover, as husband points out, “California courts have, in their discretion, addressed constitutional issues for the first time on appeal, particularly when justice so requires.” (Punsly v. Ho (2001) 87 Cal.App.4th 1099, 1103.)

Under the circumstances presented here, we shall address husband’s claims on the merits.

2. Judicial Bias Claims

In support of his claim that he was denied a fair trial, husband cites various specific instances of asserted bias by the trial judge. As we now explain, none supports his claim that he was denied due process.

(a) Limits on cross-examination of Shakker

Husband’s first complaint relates to his attempt to cross-examine David Shakker about an invoice for rugs. That drew objections from wife’s attorney on grounds that it was outside the scope of Shakker’s direct testimony and that it was irrelevant. The court sustained those objections. Husband asked: “Doesn’t that count as joint property?” The court responded: “That’s not before me yet.” Wife’s counsel joined in, saying: “That issue is not before the Court.” Because Shakker was excused, husband was foreclosed from questioning him later. As husband sees it, wife’s counsel “was allowed to take a witness out of order, but [husband] was prevent[ed] from asking that witness a question out of order, so he was entirely prevented from questioning that witness on that subject.”

That factual scenario does not demonstrate unfairness. In the first place, Shakker was not taken out of order, except the order of witnesses for wife stated in her trial brief. His testimony was presented during her case in chief. More to the point, husband’s attempted cross-examination was improper for both reasons cited in the sustained objections. First, the question about rugs was outside the scope of Shakker’s direct testimony. Had husband wished to question Shakker further, he could have listed and called him as a witness in his own case in chief. Second, the topic of rugs apparently was irrelevant, having been settled in the property division arbitration. (Evid. Code, § 350 [only relevant evidence is admissible].) The trial court thus did not err in excluding it. (Cf. People v. Guerra, supra, 37 Cal.4th at p. 1112 [“a trial court’s numerous rulings against a party—even when erroneous—do not establish a charge of judicial bias”].)

(b) Acceptance of wife’s revised condominium valuation evidence

Husband next complains about wife’s trial evidence concerning the value of the Iranian condominium, which he characterizes as “in major contrast” to the lower valuation she had asserted at the beginning of the dissolution action. Because he was representing himself, he claims, he “did not succeed in calling this to the trial court’s attention.”

We are hard-pressed to see how this complaint reflects on the fairness of the trial. In the first place, as our high court has made clear, “mere self-representation is not a ground for exceptionally lenient treatment.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984.) “A doctrine generally requiring or permitting exceptional treatment of parties who represent themselves would lead to a quagmire in the trial courts, and would be unfair to the other parties to litigation.” (Id. at p. 985.) Parties who represent themselves therefore must adhere to the same restrictive rules of procedure as attorneys. (Id. at pp. 984-985.) In the second place, as wife’s offer of proof made clear, she was willing “to either buy it or sell it essentially at a value of $80,000.” This fact alone gives some credence to wife’s estimate of value. Finally, husband was heard on the question of the property’s worth at trial; he put its value at $35,000 or $40,000. The court simply accepted wife’s value, a decision that husband does not challenge here.

(c) Limits on testimony about husband’s life

As noted above, the court refused to hear husband’s proffered “biography” on the ground that it was “not relevant” to the proceeding. The court cut his testimony short several times thereafter, too, when husband tried to explain how he had entered the United States in 1978 with only $850, how he had worked in a wrecking yard for two years, and how he had owned a liquor store.

Husband’s attempts to describe those aspects of his personal history gave rise to the following exchanges:

On appeal, husband asserts that the court should have let him speak about his life, since the statutory factors governing spousal support in this long marriage “would have encompassed considerable background about the parties, and if [husband] had an introductory paragraph or sentence, there would have been no harm in listening to it.”

We reject that assertion. As explained above, evidence must be relevant to be admissible. (Evid. Code, § 350.) “The trial court retains broad discretion in determining the relevance of evidence.” (People v. Garceau (1993) 6 Cal.4th 140, 177.) Here, whatever limited relevance the proffered evidence may have had on the issue of support was not made clear to the court. So far as the hearing transcript discloses, husband’s purpose in offering his background information was to explain the loans to his relatives. He made no attempt at trial to relate his life story to spousal support. The limitations imposed by the court thus do not support husband’s claim of judicial bias. (See People v. Cunningham (2001) 25 Cal.4th 926, 999 [the exclusion of “evidence on a minor or subsidiary point does not interfere with” a litigant’s constitutional due process right].)

(d) Limits on other testimony proffered by husband

Husband also complains that the court limited him to five minutes to discuss his “other issues” following the court’s oral ruling. He used that short time period to address the “issue of the condo” in Iran. On appeal, husband contends that “there was no apparent valid reason for limiting him to 5 minutes regarding the issues of his almost-34-year marriage.”

The complaint lacks merit. As the transcript clearly reflects, husband was not limited to five minutes to present his issues during trial. To the contrary, as noted above, during husband’s testimony in his case in chief, the trial judge guided him through the controverted issues as identified in the trial briefs. Since the court already had heard husband’s testimony on all disputed issues (except fees), its limitations on further evidence do not support husband’s claim of judicial bias.

(e) Acceptance of wife’s written summary of spousal support factors

Husband also takes issue with the court’s acceptance of a summary prepared by wife’s attorney concerning the statutory spousal support factors. He argues: “The judge should have waited to see [wife’s] evidence before saying he’d decided in favor of it, and he was going to rely on it. This is very far from the appearance of fairness. How could the trial judge know he’d rely on the evidence before seeing it?”

This exchange took place between the court and wife’s counsel (Jacobs):

We do not share husband’s interpretation of what transpired at trial. We find the record at least equally susceptible of the inference that the trial court was relying on the statutory factors themselves, not on the document presented by wife that summarized those factors.

(f) Other specific conduct claimed to exhibit favoritism

Husband cites other instances of claimed favoritism to wife, such as “leeway” given her counsel but not husband. As one example of that, husband notes that the court – not wife’s counsel – confirmed her agreement with the offer of proof made on her behalf. As another example, husband asserts that wife’s “attorney was able to sit silent while the trial judge … made his objections for him” during the judge’s exchange with him about the loans

These examples do not establish or even suggest judicial bias. As to the first, as wife observes, the court was not assisting her by confirming her offer of proof; rather, it was fulfilling its duty to ascertain that the proof conformed to the offer. (In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051, 1060, fn. 3.) Nor does the court’s direct exchange with husband suggest bias. Rather, it is evidence of the court’s exercise of its “duty to control the trial proceedings.” (People v. Guerra, supra, 37 Cal.4th at p. 1111.)

Husband also cites a “pseudo joke” made by the trial judge while disclosing that his brother went to high school with wife’s counsel’s partner. Husband acknowledges that “this relationship alone wouldn’t have disqualified the judge in advance from hearing the case,” but he asserts that “it does appear to explain the reason for the favoritism that tainted the trial.” As wife points out, however, the “pseudo joke” was – if anything – mildly critical of her attorney’s firm for misspelling the judge’s name. Moreover, the history of this proceeding further undercuts any suggestion of favoritism toward wife’s law firm: the 2006 trial was conducted by the same judge who had ruled against wife and her law firm in 2004 in granting husband’s motion to set aside the default judgment taken against him.

(g) Overall bias claim

Ultimately, husband argues, “one-sidedness and unfairness … permeated this trial” and denied him his constitutional due process rights.

We disagree. For one thing, husband’s “willingness to let the entire trial pass” without complaining of bias “strongly suggests” that those claims “are without merit.” (People v. Guerra, supra, 37 Cal.4th at p. 1112.) More to the point, as wife aptly observes, husband’s assertion of one-sidedness “depends on a selective, out-of-context reading of the record.” (Lester v. Lennane (2000) 84 Cal.App.4th 536, 575.)

Viewed in its entirety, the trial transcript is replete with examples of the court’s attention to husband’s procedural rights. For example, the court made certain that husband had finished his cross-examination of Shakker before moving on. When wife introduced the personal property arbitration order, the court said: “Let’s be sure Mr. Sepehrdad sees it.” The court did the same thing with another document proffered by wife, a sales contract and translation for the Iranian condominium. At the end of the morning session, the court announced: “It’s 12 noon and Mr. Sepehrdad has not had a chance to respond yet.” The court ordered the parties back at 1:30 p.m., telling husband: “You get to tell your side.” It allowed him to do so, directing his presentation to ensure that he was able to offer evidence on each disputed issue, with the sole exception of attorney fees. Though the court did not permit husband to interrupt its oral ruling from the bench, after it had finished, the court offered him five minutes to discuss his other issues. In sum, the record fails to support husband’s claim of unfairness.

3. Conclusion

Having analyzed the trial transcript in its entirety, we agree with wife that the trial judge “acted patiently, politely, and fairly toward both parties.” There was no judicial bias and no denial of husband’s due process rights.

II. Watts Charge

We next consider husband’s challenge to the trial court’s imposition of a Watts charge against husband in the amount of $1,960.

A. Legal Principles

“Where one spouse has the exclusive use of a community asset during the period between separation and trial, that spouse may be required to compensate the community for the reasonable value of that use.” (In re Marriage of Garcia (1990) 224 Cal.App.3d 885, 890.) The right to such compensation is commonly known as a “Watts charge.” (In re Marriage of Watts, supra, 171 Cal.App.3d at p. 374; see Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2007) ¶ 8:855, pp. 8-213 to 8-214.) Where the Watts rule applies, the court is “obligated either to order reimbursement to the community or to offer an explanation for not doing so.” (In re Marriage of Bell (1996) 49 Cal.App.4th 300, 311.)

But “where the asset is not owned outright by the community but is being financed,” the spouse in possession “may satisfy the duty to compensate the community for use of the asset by making the monthly finance payments from his or her separate property.” (In re Marriage of Garcia, supra, 224 Cal.App.3d at pp. 890-891.) Such offsets are commonly called “Epstein credits.” (In re Marriage of Epstein (1979) 24 Cal.3d 76, 84-85; see Hogoboom & King, Cal. Practice Guide: Family Law, supra, ¶¶ 8:845, 8:848, pp. 8-207 to 8-208.)

The trial court determines what is due the community “after taking into account all the circumstances” relevant to the exclusive possession by one spouse. (In re Marriage of Watts, supra, 171 Cal.App.3d at p. 374.)

B. Appellate Review

We review the trial court’s determination for substantial evidence. (In re Marriage of Tucker (1983) 141 Cal.App.3d 128, 136 [Epstein credits].)

C. Contentions

Husband argues that the trial court erred in ordering a Watts charge against him. In his view, the court failed to consider “that by residing in the home, [husband] was able to help the community receive a substantially larger amount of money from the home sale.” At trial, husband had attempted to establish that he held out for a higher sales price for the home over the objections of wife and her counsel, telling the judge: “You have to consider the fact that I was able to finally sell [the] house for $1,000,000. They wanted to sell it for 850,000 and 900.”

Wife disputes husband’s appellate contention. She asserts that the trial judge “was not obligated to … make such a finding. Nor was the judge required to believe [husband’s] view of the consequence of his uncooperative behavior with the broker.” Wife also contends that husband has forfeited his argument, because he did not request a statement of decision nor did he object below.

D. Analysis

In light of husband’s several attempts to place his version of events before the trial court, we shall treat his appellate contention as preserved. As we now explain, however, we reject the claim on the merits.

1. Factual Background

At trial, the court first rejected the husband’s evidence on this point as irrelevant. When husband persisted in explaining how he held out for a higher sales price on the family home, the court responded: “That was very good. And that’s what happened.” The court then prodded husband to move on, saying: “We agree that was good. Now next question.”

In its written judgment after trial, the court awarded wife a credit in the amount of $1,960, based on the home’s fair rental value, less mortgage payments and property taxes paid by husband. The judgment makes no mention of husband’s claim concerning the higher sales price for the home.

2. Discussion

To the extent that the trial court rejected husband’s proffer as unworthy of belief, it cannot be faulted. As the trier of fact in this case, the trial judge was the exclusive judge of the credibility of the evidence. (People v. Jones (1990) 51 Cal.3d 294, 314; Hicks v. Reis (1943) 21 Cal.2d 654, 659.) In that role, the judge may reject any evidence as unworthy of credence, even uncontradicted testimony. (Hicks v. Reis, at pp. 659-660.)

To the extent that it considered husband’s proffered evidence irrelevant, the court likewise acted properly. As noted above, the “court retains broad discretion in determining the relevance of evidence.” (People v. Garceau, supra, 6 Cal.4th at p. 177.) Here, husband made no showing that it was his presence in the home that resulted in the higher sales price, a gap in proof that renders the higher price irrelevant.

Finally, the amount awarded as a Watts charge – $1,960 – is supported by substantial evidence, a point that husband implicitly concedes. The charge was based on a fair rental value of $3,000 per month, less mortgage payments and property taxes totaling $2,440 paid by husband, resulting in an excess rental value of $560 per month; wife was entitled to half of that amount ($280) for the seven months of husband’s sole possession. At trial, wife placed those figures in evidence by her offer of proof; husband did not dispute them. Substantial evidence thus supports the award.

For all of the foregoing reasons, the Watts charge awarded by the trial court stands.

III. Spousal Support

We now turn to husband’s last two appellate contentions, which relate to spousal support.

A. Legal Principles

“Spousal support is governed by the statutory scheme set forth in sections 4300 through 4360. Section 4330 authorizes the trial court to order a party to pay spousal support in an amount, and for a period of time, that the court determines is just and reasonable, based on the standard of living established during the marriage, taking into consideration the circumstances set forth in section 4320.” (In re Marriage of Nelson (2006) 139 Cal.App.4th 1546, 1559, fn. omitted.)

B. Appellate Review

We review the spousal support order under the deferential abuse of discretion standard. (In re Marriage of Nelson, supra, 139 Cal.App.4th at p. 1559.) “ ‘As long as the court exercised its discretion along legal lines, its decision will be affirmed on appeal if there is substantial evidence to support it.’ ” (In re Marriage of Geraci (2006) 144 Cal.App.4th 1278, 1286.)

C. Contentions

Husband advances two appellate arguments in support of his bid for reversal of the spousal support award: (1) that the trial court failed to make the findings as required by section 4320; and (2) that there is no substantial evidence of the marital living standard, nor did the court make a specific finding as to that standard, as required by section 4332. Concerning the first argument, husband cites the trial transcript and states: “It appears that the judge was attempting to make findings as to the Family Code 4320 factors, but he failed to do so in any way ascertainable to appellant or to an appellate court.” As to his second argument, husband acknowledges that “some evidence of the parties’ assets” was before the court, but he asserts that it was “at best a very sketchy indication of the parties’ marital standard.”

Wife defends the award, disputing both of husband’s arguments. As to the first, she points to the findings in the judgment. Regarding husband’s second contention, she offers several counter-arguments, including forfeiture.

D. Analysis

We address each of husband’s arguments in turn.

1. Findings (§ 4320)

Husband’s first argument is swiftly dispatched. As wife points out, the judgment itself lists and applies the statutory factors. (In re Marriage of Garrity and Bishton (1986) 181 Cal.App.3d 675, 687 [“the trial court’s statement of decision fairly and completely set forth the factual and legal basis for its decision”]; cf. In re Marriage of Geraci, supra, 144 Cal.App.4th at p. 1299 [“the record provides inadequate grounds to accord the usual deference to the court’s exercise of discretion in making the award of spousal support in this case”].) Husband focuses only on the court’s oral statements at trial; he fails to mention – much less challenge – any of the court’s detailed written findings as to the applicable statutory factors.

2. Marital Standard of Living (§ 4332)

Husband’s second argument fares no better than his first.

In the first place, we conclude, husband has not preserved his claims concerning the marital living standard. He “did not make the argument to the trial court that [he] makes here.” (In re Marriage of Nelson, supra, 139 Cal.App.4th at p. 1560.) For one thing, husband did not ask the court to make a specific factual finding as to the marital standard of living. “It is clearly unproductive to deprive a trial court of the opportunity to correct such a purported defect by allowing a litigant to raise the claimed error for the first time on appeal.” (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1138.) For another thing, husband did not object when the court stated that it was setting spousal support below the marital standard of living. (In re Marriage of Whealon (1997) 53 Cal.App.4th 132, 144 [husband’s claim that the court erred by overstating his income “fails because [he] did not raise it at the time the trial court” made the challenged finding].) Husband’s claims as to this point thus are forfeited.

Even on the merits, husband’s argument would fail. “A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness.” (In re Marriage of Arceneaux, supra, 51 Cal.3d at p. 1133.) “A reviewing court must start with the presumption that the record contains evidence to support every finding of fact; the burden is on the party attacking a finding of fact … to demonstrate that there is no substantial evidence to support” it. (Orange County Flood Control District v. Sunny Crest Dairy, Inc. (1978) 77 Cal.App.3d 742, 758.) Husband has not carried his burden of demonstrating error here. As he concedes, there was evidence giving the court at least some “indication of the parties’ marital standard.” Moreover, any deficit in the evidentiary record is properly laid at husband’s feet, since he failed to submit a current income and expense declaration or other financial information. (Cf. In re Marriage of McQuoid (1991) 9 Cal.App.4th 1353, 1359 [trial court properly relied on income figures for an earlier period given “the paucity of evidence husband offered” as to his current income].)

Finally, as this court recently reaffirmed, “the legal standard, ‘marital standard of living,’ is a mere general reference point” from which the determination of permanent spousal support proceeds. (In re Marriage of Nelson, supra, 139 Cal.App.4th at p. 1560.) “Section 4330 does not make ‘marital standard of living’ the absolute measure of reasonable need. ‘Marital standard of living’ is merely a threshold or reference point against which all of the statutory factors may be weighed.” (Ibid.) “It is neither a floor nor a ceiling for a spousal support award.” (Ibid.) “The Legislature intended ‘marital standard of living’ to be a general description of the station in life that the parties had achieved by the date of separation.” (Ibid.)

In sum, even if we were to reach husband’s contentions concerning the marital standard of living, we would find them lacking in merit, given the record presented here and the nature of the applicable legal standard.

DISPOSITION

The judgment is affirmed.

WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.

“MR. SEPEHRDAD: Can I tell you the biography of my life country to this country?

“THE COURT: I am not interested in your life. I should say I may be interested, but it’s not relevant to this proceeding. What we need

“MR. SEPEHRDAD: I think I believe it does. It is relevant to this case.

“THE COURT: What we need to do right now is to address the issues Mr. Jacobs [wife’s counsel] brought up earlier, which deals with a lot of money that’s involved here and the various offsets and credits. Do you understand?

“MR. SEPEHRDAD: Yes, sir.

“THE COURT: So I may cut you off from time to time because we want to deal with what’s involved here.

“MR. SEPEHRDAD: It is relevant to this case.

“THE COURT: Well, what’s relevant?

“MR. SEPEHRDAD: Your honor, I enter this country in 1978 with $850 in my pocket.

“THE COURT: I understand that. You were very successful. But that’s beside the point. In other words, I’m more concerned about getting this case resolved.

[¶] . . . [¶]

“MR. SEPEHRDAD: I want to talk to you about issue of $9,000 and $1,000 [sic]. [¶] Your honor, I worked in a wrecking yard for two years.

“THE COURT: Wait a minute. I’m not denying that you’ve been a hard worker. And you’ve done very well for yourself since you came here in 1978. However, that’s not what’s before me.

[¶] . . . [¶]

“MR. SEPEHRDAD: I want to talk about the issues of the $9,000 and 1,000-dollar loans [sic].

“THE COURT: You mean 10,000.

[¶] . . . [¶]

“MR. SEPEHRDAD: Yeah. 10,000 and 8,000.

“THE COURT: Right. Well, tell me about it.

[¶] . . . [¶]

“MR. SEPEHRDAD: I bought a liquor store, which was already bankrupt.

“THE COURT: What’s that got to do with 10,000 and 8,000?

“MR. SEPEHRDAD: I am – you have to wait. I have to tell you the reason why I got these loans for.

“THE COURT: It doesn’t matter why you got them. What matters [is] that you did. And they’re still outstanding. And it’s now around 33,000.”

Discussions then ensued between wife’s counsel and the court, with counsel finally clarifying that David Shakker had acted as an intermediary in advancing funds to husband’s brother and nephew, that he had been repaid by husband and wife, but that the community had not been repaid by the relatives.

The court then asked husband to confirm that his relatives still owed the money, which resulted in this exchange:

“MR. SEPEHRDAD: I owe them some money.

“THE COURT: No. They owe you.

“MR. SEPEHRDAD: No. That’s not correct. I had previously borrowed this money from them.

“THE COURT: Now you’re saying … it’s a repayment?

“MR. SEPEHRDAD: That is correct.”

“THE COURT: Now, I have to decide … what the spousal support should be as [to] permanent support under 4320.

“MR. JACOBS: Yes. I prepared for the benefit of the Court a summary of the factors under 4320 plus basis on which the Court could make findings if the Court would like to have this.

“THE COURT: I would because that’s what I’m going to rely on.

“MR. JACOBS: Thank you. I will present that to the Court at this time.”


Summaries of

In re Marriage of Sepehrdad

California Court of Appeals, Sixth District
Mar 21, 2008
No. H031094 (Cal. Ct. App. Mar. 21, 2008)
Case details for

In re Marriage of Sepehrdad

Case Details

Full title:SIMA SEPEHRDAD, Respondent, v. ABBAS SEPEHRDAD, Appellant.

Court:California Court of Appeals, Sixth District

Date published: Mar 21, 2008

Citations

No. H031094 (Cal. Ct. App. Mar. 21, 2008)