Opinion
H049587
04-27-2023
In re the Marriage of FATEMEH JAVANMARD and NASER ASGARI. v. NASER ASGARI, Appellant. FATEMEH JAVANMARD, Respondent,
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 18-FL002209
BAMATTRE-MANOUKIAN, ACTING P.J.
On February 9, 2021, the court below entered a judgment on reserved issues after trial (judgment) in this marital dissolution proceeding involving appellant Naser Asgari and respondent Fatemeh Javanmard. The issues disposed of in the judgment included, inter alia, spousal support ordered to be paid by Naser to Fatemeh; the disposition of the family residence on Walters Avenue in Campbell owned by the community (Campbell Property); the disposition of rental property located on West Parr Avenue, Los Gatos, owned by the community (Los Gatos Rental Property); the disposition of an unimproved lot adjacent to the Los Gatos Rental Property, owned by the community (Unimproved Los Gatos Property); and a request by Fatemeh for an award of attorney fees as sanctions against Naser pursuant to Family Code section 271 that resulted in an award in the sum of $50,000.
We refer to the parties by their first names for convenience and clarity; we mean no disrespect in doing so. (See Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fn. 1.)
All further unspecified statutory references are to the Family Code.
Some months after entry of the judgment, Fatemeh applied for, and obtained an order to show cause for contempt based upon allegations that Naser had failed to comply with several orders contained in the judgment. After a trial, the court by formal order of September 7, 2021, found Naser guilty as to five of the seven contempt counts alleged, and it ordered Naser to pay $5,000 in attorney fees as sanctions under Code of Civil Procedure section 1218. Naser appeals the September 7, 2021 order. We will affirm.
I. PROCEDURAL HISTORY
A. Judgment On Reserved Issues (February 9, 2021)
This dissolution proceeding was initiated by Fatemeh on a date that is not disclosed by the record. The court entered a judgment (status only) on July 7, 2020.
After a two-day trial on reserved issues, the judgment was filed on February 9, 2021 (judgment). The court disposed of issues including, inter alia, the division of community property and debt; the characterization of assets and obligations as community or separate assets or debt, respectively; the confirmation of separate property; spousal support; and the determination of Fatemeh's request for the imposition of attorney fees as sanctions (§ 271).
The judgment, as it relates to the present appeal of the September 7, 2021 order of contempt, included the following:
Spousal Support. Naser was ordered to pay spousal support of $2,000 per month, effective December 14, 2020, and terminating December 31, 2022.
The court also found that temporary spousal support prior to December 13, 2020, was owed by Naser to Fatemeh in the total amount of $93,751, and that this sum was payable "forthwith" as of the date of filing of the judgment.
Campbell Property. The parties were ordered to list the family residence, the Campbell Property, for sale at its appraised value ($2,350,000), with the net proceeds of the sale divided equally between the parties.
Los Gatos Rental Property. The Los Gatos Rental Property, having an equity value of $1,143,000 (after subtraction of an encumbrance of $207,000), was awarded to Fatemeh. Naser was ordered, upon filing of the judgment, to (1) provide to Fatemeh an accounting of rental income collected and expenses incurred on or after January 1, 2021, (2) deliver the property to Fatemeh in good repair with all security deposits and keys, and (3) execute an interspousal transfer deed transferring his entire interest in the property to Fatemeh.
Unimproved Los Gatos Property. The Unimproved Los Gatos Property, having no encumbrances and having an equity value of $1,250,000, was awarded to Naser. Fatemeh was ordered, upon filing of the judgment, to execute an interspousal transfer deed transferring her entire interest in the property to Naser.
Fatemeh served a notice of entry of the February 9, 2021 judgment on March 7, 2021. Naser filed a notice of appeal from the judgment on April 29, 2021.
This appeal of the judgment was filed in this court. (See In re Marriage of Javanmard and Asgari, H049086.) On our own motion, we take judicial notice of matters filed in this court in that appeal, including the notice of appeal. (See Evid Code, § 459, subd. (a).) The appeal from the judgment was transferred by order of the Supreme Court to the Second District Court of Appeal. The appeal was recently decided by that court. (See In re Marriage of Javanmard and Asgari (Jan. 19, 2023, B322861) [nonpub. opn.].) On our own motion, we take judicial notice of this related appeal. (Evid Code, § 459, subd. (a); see also In re Christy L. (1986) 187 Cal.App.3d 753, 755, fn. 2 (Christy L.) [judicial notice taken of opinion filed in related appeal].) In that appellate case, the Second District Court of Appeal affirmed the judgment, rejecting Naser's primary challenge to the trial court's judgment that the order requiring him to pay Fatemeh $50,000 attorney fees as sanctions under section 271 was improper because it was based upon (in Naser's view) his refusal to settle. It does not appear from a review of the Court of Appeal's opinion that Naser challenged the spousal support order or contended that he did not have the ability to pay spousal support.
B. Order of Contempt (September 7, 2021)
On or about March 22, 2021, Fatemeh filed an affidavit of contempt seeking the issuance of an order to show cause (OSC), alleging in seven counts that Naser had violated court orders associated with the judgment. An OSC was thereafter issued by the court.
In her declaration in support of the request for issuance of the OSC, Fatemeh alleged that (a) Naser had failed to pay spousal support for three consecutive months, January through March 2021, totaling $6,000 (counts 1-3); (b) he had refused to list for sale the Campbell Property (count 4); (c) in refusing to list the Campbell Property for sale, he had violated the order requiring that he pay to Fatemeh from the sales proceeds $50,000 in attorney fees as sanctions under section 271 (count 5); (d) he had refused to provide Fatemeh with an accounting of rents received and expenses paid from January 1, 2021, for the Los Gatos Rental Property and had refused to deliver to her the property, and security deposits and keys associated with the property (count 6); and (e) he had refused to sign an interspousal transfer deed conveying to Fatemeh all of his interest in the Los Gatos Rental Property (count 7). Fatemeh stated that she, through her counsel, had written to Naser or his counsel on eight occasions seeking Naser's compliance with the judgment. Fatemeh also sought an award of attorney fees as sanctions (§ 271) for the cost of seeking Naser's compliance with the judgment and the filing of the application for the OSC.
In a supplemental declaration, Fatemeh alleged that Naser had failed to pay spousal support for two additional months (April and May 2021), and she would seek leave at the hearing to add two counts of contempt related to such nonpayment. At the arraignment, the court indicated to Fatemeh's counsel that a new motion would be required for the two additional contempt counts. The record reflects that Fatemeh filed a second application for issuance of an OSC for contempt, alleging eight counts involving nonpayment of support, including nonpayment of the April and May 2021 support payments ordered in the judgment.
Naser opposed the OSC, asserting, inter alia, that his financial circumstances rendered him unable to comply with any of the payment requirements in the judgment.
A trial on the OSC was held on August 20, 2021. The court dismissed counts 4 and 5, and it took the matter under submission. The court issued an order on September 7, 2021. It found Naser guilty of contempt as to counts 1 through 3, concluding that he had failed to meet his burden of showing he had an inability to pay support for January through March 2021. The court found Naser guilty of contempt as to counts 6 and 7. It concluded that it was undisputed that he had failed to comply with the terms of the judgment concerning the Los Gatos Rental Property, and that Fatemeh had complied with her obligation to execute a deed transferring her interest in the Unimproved Los Gatos Property to Naser. The court found that Naser had not met his burden of showing an inability to comply with the orders. The court also ordered Naser to pay attorney fees to Fatemeh of $5,000 as sanctions under Code of Civil Procedure section 1218.
On October 15, 2021, the court imposed a sentence of 600 hours of community service for the five counts of contempt of which Naser was convicted. The court suspended the sentence for four months and placed Naser on probation. After a compliance hearing on February 16, 2022, the court revoked suspension of the sentence and ordered Naser to complete the community service within one year.
Naser filed a notice of appeal challenging the September 7, 2021 order of contempt.
II. DISCUSSION
A. Applicable Law
As a general rule," '[t]he facts essential to jurisdiction for a contempt proceeding are "(1) the making of the order; (2) knowledge of the order; (3) ability of the respondent to render compliance; (4) willful disobedience of the order." [Citations.]' [Citation.]" (Board of Supervisors v. Superior Court (1995) 33 Cal.App.4th 1724, 1736.) But when the subject of the alleged contempt is a support order, and the family court has previously determined the payor's/alleged contemner's ability to pay, the third fact, ability to comply with the order, is not an element of contempt. (In re Ivey (2000) 85 Cal.App.4th 793, 798 (Ivey); cf. Moss v. Superior Court (1998) 17 Cal.4th 396, 426 (Moss) ["[p]roof of ability to pay is not an element of a contempt based on a failure to comply with a child support order"].) Instead, "inability to pay is an affirmative defense, which must be proven by the alleged contemner. [Citation.] Ability to pay becomes an element of the contempt only when the alleged contempt occurs many years after the underlying order. [Citation.]" (Ivey, supra, at pp. 798-799.) Thus, the payee spouse" 'makes a prima facie case at the hearing by producing the original order, and by proof of the refusal of [the payor spouse] to make payment according to its terms ....[At the hearing, the payor spouse has] an opportunity . . . to purge himself [or herself] of contempt by presenting any legitimate excuse he [or she] may have, and[,] if his [or her] excuse is that since the making of the original order he [or she] has become unable to pay the alimony required by it, it is incumbent upon him [or her] to prove that fact. He [or she] is in the best position to show why for any reason he [or she] has not obeyed the order, and it is his [or her] duty to do so as a matter of defense.'" (Id. at p. 799, quoting Mery v. Superior Court (1937) 9 Cal.2d 379, 380.) The payor spouse must establish the inability-to-pay defense by a preponderance of the evidence. (See In re Marriage of Sachs (2002) 95 Cal.App.4th 1144, 1152-1154; see also Moss, supra, at p. 428 [alleged contemner must establish defense of inability to pay child support by preponderance of the evidence].)
We review the order of contempt to determine whether it is supported by substantial evidence. (In re M.R. (2013) 220 Cal.App.4th 49, 58.) "In a contempt proceeding resulting in punitive sanctions . . . guilt must be established beyond a reasonable doubt. [Citation.] A reviewing court will uphold a contempt judgment only if there is substantial evidence to sustain the jurisdiction of the trial court. [Citation.] . . . In the review of a contempt proceeding 'the evidence, the findings, and the judgment are all to be strictly construed in favor of the accused [citation], and no intendments or presumptions can be indulged in aid of their sufficiency. [Citation.] If the record of the proceedings, reviewed in the light of the foregoing rules, fails to show affirmatively upon its face the existence of all the necessary facts upon which jurisdiction depended, the order must be annulled.' [Citation.]" (Mitchell v. Superior Court (1989) 49 Cal.3d 1230, 1256, fn. omitted (Mitchell).)
B. Challenge to September 7, 2021 Order of Contempt
1. Forfeiture of All Appellate Challenges
Naser contends that the trial court erred in holding him in contempt. The basis for Naser's assertion is that "he has an inability to pay the amounts of support ordered in the judgment." As we explain, Naser has forfeited any appellate challenge to the September 7, 2021 contempt order because (1) he has not asserted specific arguments as to portions of the order (convictions as to counts 6 and 7 and sanctions), and (2) he has failed to comply with basic requirements of appellate procedure and has therefore forfeited his claim of error as to the remainder of the order (convictions as to counts 1 through 3).
First, we identify the particulars of the order that Naser does not challenge in this appeal. As discussed above, the OSC stated seven counts of contempt. The court dismissed two of them (counts 4 &5), and it found Naser guilty of the remaining counts. In addition to counts 1 through 3-concerning nonpayment of spousal support-the court found Naser guilty of counts 6 and 7 that concerned Naser's noncompliance with orders relative to the Los Gatos Rental Property. Specifically, the court found that there was no dispute that, as to that property, Naser had failed to provide Fatemeh with an accounting of rents received and expenses incurred, and had failed to deliver the keys, the security deposit, the property itself, and a deed transferring any interest in property to her. Naser does not challenge the contempt order insofar as it found him guilty of counts 6 and 7. He has forfeited any such appellate challenge. (See Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4 (Tiernan); Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1409-1410 (Nolte).)
The trial court in its order also required that Naser pay Fatemeh attorney fees of $5,000 as sanctions under Code of Civil Procedure section 1218 for costs related to her prosecution of the OSC. The court took into consideration prior sanctions under section 271 that were imposed against Naser of $50,000 in the judgment and $15,000 in another postjudgment order, and it concluded that the imposition of the current sanctions of $5,000 would not constitute an unreasonable financial burden. Naser does not challenge in this appeal of the contempt order the imposition of sanctions under Code of Civil Procedure section 1218. He has therefore forfeited any such appellate challenge. (See Tiernan, supra, 33 Cal.3d at p. 216, fn. 4; Nolte, supra, 236 Cal.App.4th at pp. 1409-1410.)
The court issued an order on July 7, 2021, in which it denied Naser's alternative motions for reconsideration or new trial challenging the judgment, and it ordered him to pay to Fatemeh $15,000 attorney fees as sanctions under section 271 for costs she incurred in opposing Naser's motions. Naser appealed this sanctions order. (See In re Marriage of Javanmard and Asgari, H049366.) On our own motion, we take judicial notice of this related appeal. (Evid. Code, § 459, subd. (a); see also Christy L., supra, 187 Cal.App.3d at p. 755, fn. 2.) Our opinion in this related appeal, affirming the July 7, 2021 order imposing sanctions, is filed concurrently with our opinion in the present appeal.
Naser in his opening brief makes two oblique references to his claimed inability to pay "fines" imposed against him in this case. It is unknown whether this is a reference to one or more of the three trial court orders requiring Naser to pay attorney fees as sanctions. Even were we to assume that Naser's statement that he could not pay "fines" was a challenge to the sanctions imposed by the court in its September 7, 2021 order here, such a conclusory, undeveloped challenge is abandoned or forfeited. (See Nisei Farmers League v. Labor & Workforce Development Agency (2019) 30 Cal.App.5th 997, 1018; Valov v. Department of Motor Vehicles (2005) 132 Cal.App.4th 1113, 1132.)
Second, we address whether the challenge to the September 7, 2021 order that Naser has made here-the conviction as to counts 1 through 3 based upon nonpayment of support-is cognizable. We conclude that it is not.
Naser's appellate brief does not comply with the rules of appellate procedure. The California Rules of Court require that every brief "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears." (Cal. Rules of Court, rule 8.204(a)(1)(C).) Naser's opening brief constitutes a uniform violation of this rule. His appellate brief contains not one citation to the appellate record in support of his assertions of fact. Naser's challenge to the contempt order is that there was insufficient evidence for the court to find that he had the ability to pay spousal support. This argument requires a detailed discussion of the evidentiary record at trial concerning Naser's ability to pay support-with citations to the record where each fact identified can be found. (Ibid.) Instead, this court has been provided with a brief that generally, and without citation to the appellate record, indicates that Naser is impecunious because the $935 he receives from Social Security is allegedly his sole monthly income. Naser's failure to cite to the record is particularly confounding because there is an 80-page transcript of the contempt trial that, pursuant to Naser's motion to augment granted by this court, was made part of the appellate record.
Naser filed an opening brief. He elected not to file a reply brief.
All rule references are to the California Rules of Court.
Since it is the contemner who has the burden of establishing inability to pay as a defense to noncompliance with a support order (Ivey, supra, 85 Cal.App.4th at pp. 798799), Naser's assertion appears to be that there was no substantial evidence to support the court's rejection of his defense that he was unable to pay support.
"It is neither practical nor appropriate for [the appellate court] to comb the record on [appellant's] behalf." (In re Marriage of Fink (1979) 25 Cal.3d 877, 888.) As required under rule 8.204(a)(1)(C)," '[a]ny statement in a brief concerning matters in the appellate record-whether factual or procedural and no matter where in the brief the reference to the record occurs-must be supported by a citation to the record.' [Citations.]" (Professional Collection Consultants v. Lauron (2017) 8 Cal.App.5th 958, 970, original italics.) Accordingly, "[w]hen an appellant's brief makes no reference to the pages of the record where a point can be found, an appellate court need not search through the record in an effort to discover the point purportedly made. [Citations.] We can simply deem the contention to lack foundation and, thus, to be forfeited. [Citations.]" (In re S.C. (2006) 138 Cal.App.4th 396, 406-407; see also Yeboah v. Progeny Ventures, Inc. (2005) 128 Cal.App.4th 443, 451 (Yeboah) [court will disregard factual contentions for which no citations to the record are provided].)
Appellant's brief consists solely of generalized, repeatedly asserted, statements of alleged facts-that Naser is retired, his sole monthly income is $935 in Social Security benefits, he has a lack of earning capacity, and he has no marketable skills-without citation to the record. In addition to this recitation violating rule 8.204(a)(1)(C), it is a conclusory presentation inappropriate for an appellate brief. An appellate court "need not consider . . . a perfunctory assertion [in a brief] unaccompanied by supporting argument. [Citation.]" (People v. Smith (2003) 30 Cal.4th 581, 616, fn. 8.) If a party submitting the appellate brief "fails to support [a point] with reasoned argument and citations to authority," the appellate court will "treat the point as waived [or forfeited]. [Citations.]" (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 (Badie).)
Notwithstanding the inaccuracy of the generalized facts asserted in his brief concerning his financial condition (as detailed in pt. B.2., post), Naser's appellate brief is defective. Because he has both failed to include citations to the record supporting facts he alleges in violation of rule 8.204(a)(1)(C), and has made arguments that are perfunctory and undeveloped, his challenge to the guilty findings as to counts 1 through 3 of the contempt order is forfeited. (See In re S.C., supra, 138 Cal.App.4th at pp. 406407; Badie, supra, 67 Cal.App.4th at pp. 784-785.)
Counsel for Naser in this appeal, Andrew G. Watters, also represents Naser in the related appeal, In re Marriage of Javanmard and Asgari, H049366. As noted in the opinion we file concurrently in that related appeal, Naser's opening and reply briefs there were similarly defective, and, notably, contained no citations to the appellate record. Counsel is advised, in the future, before filing any briefs in this or any other appellate court in this state, to review the procedural requirements for the filing of appellate briefs. (See Pierotti v. Torian (2000) 81 Cal.App.4th 17, 29-31 [appellate sanctions imposed for unreasonable violations of the California Rules of Court, including repeated failure to provide record citations to factual statements in briefs].)
2. The Forfeited Challenge Has No Merit
Although Naser has forfeited his contention that the contempt order as to counts 1 through 3 must be reversed because the trial court improperly found that he had not established his inability-to-pay defense, the argument in any event lacks merit.
The record from the August 20, 2021 trial presents a very different picture than the one painted in the opening brief that Naser was retired, impecunious, had monthly income consisting solely of a Social Security distribution of $935, and had no ability to work or pay spousal support. By his own verified statement in his June 8, 2021 income and expense declaration-a document that was the subject of extensive testimony and argument at the contempt trial-he had cash deposits of $5,000 and real estate assets with a fair market value (without indebtedness) of $1,909,356. This description of Naser's real estate holdings is consistent with the court's disposition of assets as reflected in the February 9, 2021 judgment. The court awarded Naser (1) the Unimproved Los Gatos Property (without indebtedness) having a fair market value of $1,250,000; and (2) a one-half interest in the Campbell Property that was ordered to be sold with the net proceeds divided equally between the parties, which property had a fair market value of $2,350,000 (and a net fair market value, after debt, of $1,356,935).
Naser also asserts several times in his brief, without citation to the record, that he has received loans from his family. We will disregard this unsupported assertion of alleged fact. (See Yeboah, supra, 128 Cal.App.4th at p. 451.) In any event, we note that, although Naser stated in his June 8, 2021 income and expense declaration he had expended $5,000 for attorney fees and identified the source of funds as "[l]oans from family," he did not disclose the existence of any outstanding loans other than a line of credit with Chase Bank.
Further, statements in Naser's appellate brief here that he is retired, his sole source of income is his monthly Social Security distribution of $935, and he has no earning capacity or skills, are belied by his testimony (ultimately, on cross-examination), at the trial that took place on October 13 and December 14, 2020, which culminated in the entry of the February 9, 2021 judgment. Naser initially testified that he was retired, had no work address, and had no income from self-employment. During cross-examination, Naser testified (contrary to his earlier testimony) that he (1) had requested in April 2020 a taxpayer identification number under the name "Naser Asgari Insurance Agency" (the Agency); (2) maintained a business address under the Agency's name in San Jose; (3) maintained a business checking account with Bank of America under the name "Naser S. Asgari, Sole Proprietor, DBA Naser Asgari Insurance Agency"; (4) was at the time of trial an independent broker for four insurance companies; (5) had "more than several clients"; and (6) had made deposits into the above-referenced business bank account from April 1 to September 30, 2020, that totaled $18,231.
Similarly, evidence presented at the contempt trial on August 20, 2021, also contradict Naser's position here concerning his financial circumstances. There was documentary evidence (bank statements) indicating that Naser was doing business as "Naser Asgari Insurance Agency" between December 2020 through June 2021. And there was evidence that between the time relevant to counts 1 through 3 of the contempt order (i.e., January 1-March 31, 2021), the total balance in Naser's Bank of America business account ranged between $5,011 and $7,889.
In addition to Naser's Bank of America business account, there was evidence that he maintained other Bank of America accounts (banking and money market savings) in his name. The balance in those accounts from December 29, 2020, and March 26, 2021, ranged between $4,920 and $8,838. The trial court relied, in part, on this evidence in concluding that Naser had the ability to pay spousal support during the relevant period.
Furthermore, there was evidence of an additional bank account available to Naser for spousal support payments, namely, a Citibank savings account in Naser's and Fatemeh's names. During the period of January 1 to March 31, 2021, the balance in that account ranged between $5,158 and $9,468.
The evidence at trial was that the Citibank statements reflected both parties' names and contained information about a checking account and a savings account. Fatemeh testified that she had access to the checking account, only.
No income from his business was reported by Naser in his June 8, 2021 income and expense declaration. And that declaration indicated that he had available cash and deposits of $5,000. In fact, based upon the evidence adduced at the contempt trial, during the relevant period of January 1 to March 31, 2021, Naser had available deposits that would have been as low as $15,089 and as high as $26,195.
The record here shows that Naser-far from having "meager means," "no other sources of income" besides Social Security, or "not hav[ing] the ability to comply" with the support order, as stated in his appellate brief-had access to (1) more than $1.9 million in assets (as admitted in his financial declaration); (2) income generated from his ongoing insurance agency business such that the business's bank account had a balance of more than $5,000; and (3) additional bank accounts having a collective balance of more than $10,000. There was thus substantial, if not overwhelming, evidence supporting the trial court's conclusion that Naser had failed to establish, by a preponderance of the evidence, his defense that he was unable to pay spousal support of $2,000 per month for January, February, and March 2021. (See Moss, supra, 17 Cal.4th at p. 428; In re Marriage of Sachs, supra, 95 Cal.App.4th at pp. 1152-1154.) Further, we conclude that there was substantial evidence supporting the court's conclusion that the required elements of contempt-existence of a valid order, contemner's knowledge of the order, and willful failure to comply with the order (In re Ivey, supra, 85 Cal.App.at p. 798)-were proven beyond a reasonable doubt. (See Mitchell, supra, 49 Cal.3d at p. 1256 [proof of elements of contempt beyond a reasonable doubt]; In re M.R., supra, 220 Cal.App.4th at p. 58 [finding of contempt reviewed for substantial evidence].) The trial court did not err in the issuance of the September 7, 2021 order of contempt.
Naser does not challenge the court's finding that the three elements of contempt were proven beyond a reasonable doubt. As discussed, his contention on appeal is that the record shows his inability to comply with the support order (i.e., inability to pay), which was his defense to counts 1 through 3 of the OSC re contempt.
III. DISPOSITION
The postjudgment order of September 7, 2021, is affirmed.
Statutory costs on appeal are awarded to respondent.
WE CONCUR: DANNER, J. WILSON, J.