Opinion
G054063
12-27-2017
In re Marriage of PARVIN R. and PARVIZ MONTAZER. PARVIN R. MONTAZER, Respondent, v. PARVIZ MONTAZER, Appellant.
Parviz Montazer, in pro. per., for Appellant. Parvin R. Montazer, in pro. per., for Respondent.
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING; NO CHANGE IN JUDGMENT
It is ordered that the opinion filed on December 27, 2017 be modified as follows:
On page 7, the last full paragraph is deleted and replaced with the following:
"Husband maintains his lawyers, who were criminal, not family law attorneys, were ineffective in several instances, including advising him to plead no contest to the OSC re contempt, failing to quash the subpoena duces tecum in connection with the judgment debtor examination. To the extent these claims relate to civil matters, the argument fails. We may not reverse a civil judgment based on alleged incompetency of counsel. (Chevalier v. Dubin (1980) 104 Cal.App.3d 975, 979-980.)
To the extent the contempt action was a criminal proceeding, to prevail on this claim husband must show performance fell below prevailing professional standards and was prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694.) Husband has failed to show either. As noted several times, without the reporter's transcript we cannot determine what occurred at the hearings. This is not the rare case where we would review an ineffective assistance of counsel claim on direct appeal. (In re S.D. (2002) 99 Cal.App.4th 1068, 1077.)"
The petition for rehearing is DENIED. This modification does not change the judgment.
THOMPSON, J. WE CONCUR: FYBEL, ACTING P. J. IKOLA, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 98D006995) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, Linda Lancet Miller, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Motion to Augment the Record. Order affirmed. Motion granted. Parviz Montazer, in pro. per., for Appellant. Parvin R. Montazer, in pro. per., for Respondent.
* * *
Appellant Parviz Montazer (husband) appeals from a postjudgment order finding he owed respondent Parvin R. Montazer (wife) $554,000 in principal and interest for unpaid child and spousal support and imposing sentence on him as a result of his no contest plea to several counts of contempt.
Husband raises numerous arguments on appeal, including that child support terminated when his older child graduated from high school; he was entitled to credits for payments he made in lieu of support payments to wife; the marital termination agreement was modified to require wife to pay the children's college expenses; he should have been allowed to withdraw his no contest plea and plead not guilty to the order to show cause (OSC) re contempt; a judgment debtor examination was ordered prematurely; and wife's attorney improperly continued to represent her after he had been hired as a commissioner by the superior court. Finding none of his arguments persuasive, we affirm the order.
Husband filed a motion to augment the record to include his trial exhibits admitted into evidence, an application for an order to appear at a judgment debtor examination, and a subpoena duces tecum, all of which are part of the superior court file. Wife did not file an opposition. We grant the motion. (Evid. Code, § 452, subd. (d)(1).)
DEFICIENCIES IN HUSBAND'S BRIEFS
Before we address the substance of husband's claims we must first discuss the problems with his briefs, which violate the California Rules of Court (all further references to rules are to the California Rules of Court).
Husband failed to "[p]rovide a summary of the significant facts limited to matters in the record." (Rule 8.204(a)(2)(C).) Further, because many of his arguments challenge the sufficiency of the evidence, husband was required to "'summarize the evidence on that point, favorable and unfavorable, and show how and why it is insufficient. . . . He cannot shift this burden onto respondent, nor is a reviewing court required to undertake an independent examination of the record when appellant has shirked his responsibility in this respect.'" (Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409, italics omitted.) Instead he set out only a one-sided version of the facts in his favor.
Husband also included facts that are not in the record. He did not designate a reporter's transcript as part of the record and often refers to what might have been testimony at trial. We may not consider any evidence outside of the record but are limited to what is included. (State Comp. Ins. Fund v. WallDesign Inc. (2011) 199 Cal.App.4th 1525, 1528, fn. 1 ["'if it is not in the record, it did not happen'"].) We may also disregard any facts or arguments not supported by adequate citations to the record. (Provost v. Regents of University of California (2011) 201 Cal.App.4th 1289, 1294.)
In addition, each issue in a brief must have its own discrete heading summarizing the point and must be supported by reasoned legal argument. (Rule 8.204(a)(1)(B).) Although husband included headings and a section entitled "Issues requested to be reviewed by the appellate court" (bold & capitalization omitted), as to many claims he failed to make any argument or mixed facts and argument indiscriminately throughout the brief, many repeated a number of times under various headings. This significantly hindered our review. (Provost v. Regents of University of California, supra, 201 Cal.App.4th at p. 1294 ["we do not consider all of the loose and disparate arguments that are not clearly set out in a heading and supported by reasoned legal argument"].)
Furthermore, husband failed to provide authority to support most of his claims. (Rule 8.204(a)(1)(B).) Instead, except in one or two instances, he merely listed or quoted cases and statutes in a separate section and never discussed their applicability.
The fact husband is appearing in propria persona makes no difference. A self-represented litigant is not entitled to "special treatment" (Stebley v. Litton Loan Servicing, LLP (2011) 202 Cal.App.4th 522, 524) but is held to the same standards as a party represented by counsel (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247 [appellant's issues forfeited due to defects in opening brief]).
Nevertheless, we will do our best to address husband's arguments on the merits. To the extent we are unable to do so or we overlook an argument buried in the briefs, the claims are forfeited for the reasons set forth above and below.
FACTS AND PROCEDURAL HISTORY
Husband and wife were married in 1968 and terminated the marriage in 1999. The parties had two children born in 1984 and 1986, respectively.
In connection with the dissolution the parties entered into a Marital Termination Agreement (MTA), dated September 1999, which was incorporated into the judgment of dissolution (Judgment) entered September 21, 1999.
The Judgment and the MTA required husband to pay as child support the sum of $4,000 per month to "continue as to each said child until the child attains his or her eighteenth (18th) birthday; or if he or she is a full-time high school student residing permanently with [wife], until he or she graduates from high school or attains his or her nineteenth (19th) birthday, whichever first (1st) occurs; dies; marries; becomes otherwise emancipated; or until further order of court; whichever of the foregoing first (1st) occurs."
The MTA required husband to pay spousal support to wife in the sum of $2,000 per month until wife's death or remarriage, husband's death, or further order of the court, whichever occurred first.
The MTA also required husband agreed to transfer his interest in four pieces of real property, three in Colorado (Colorado Property) and one in California. The MTA stated division of the community property was "fair and substantially equal."
According to the MTA, the parties intended "to make an integrated agreement, to reflect a final and complete settlement of our respective property and support rights, to provide for the support and custody of our minor children, and to make an agreement that shall survive its incorporation and merger into a judgment of dissolution of marriage." Just before the signature lines the parties again stated, "We each acknowledge and agree that except as specifically set forth in this [MTA], there have been no promises, agreements, or undertakings by or on behalf of either of us to the other which have been made to, or relied upon by, either of us as any inducement to enter into this [MTA]. We have each read this [MTA] and are fully aware of its contents and legal effect."
Further, in the MTA husband "acknowledges that he understands the legal consequences of each of the provisions hereof, and that he has executed [the MTA] freely and voluntarily and without any undue influence of coercion by [wife] or her attorney. [Husband] acknowledges and agrees that he understands each of the terms and conditions hereof, and he agrees to comply with, and be bound by, such terms and condition."
In October 2014 wife filed a 36-count OSC re contempt based on husband's failure to pay spousal support from and after November 2011, claiming she was owed $72,000. In January 2015 wife filed a request for order to determine spousal support arrearages and to order payment (RFO Spousal Support). She claimed husband had not paid any amount of spousal support and owed $370,000 plus not quite $285,000 in interest.
In February 2015 husband filed a request for order to terminate spousal support (RFO Support Termination). He contended wife did not need spousal support. He stated she had received four pieces of real property as part of the Judgment, which had a total fair market value of $1.7 million, and equity more than $1.2 million, and rental income of $7,000 per month. Husband, 65 at the time, claimed he had no savings, real estate, or retirement income, had only $11,000 in assets, had health problems, and worked on a contract basis. He also stated he was giving financial support to the two adult children. He further said he owed $24,000 in back taxes. He explained he was the sole shareholder of GeoCubed, Inc., a Nevada corporation, for which he provided contract administration services. Those services were the company's only value.
He subsequently filed a motion to amend this request to seek attorney fees and costs.
In October the court granted wife's motion to compel production of documents relevant to husband's financial status.
In December 2015 wife filed an ex parte request to specially set a request for order for child support arrearages (RFO Child Support), claiming she had learned about the arrearages in discovery.
The court considered the OSC re contempt and all the RFO's together in a hearing that took place over several days.
In January 2016 husband pleaded no contest to 10 counts of contempt for failure to make spousal support payments. The remaining 26 counts were dismissed. Husband signed the plea form and initialed all provisions on the plea form explaining the consequences of the plea, an acknowledgement and waiver of his rights, and the actual plea. He admitted, among other things, that he entered the plea freely and without threat, because he was guilty and for no other reason. A payment schedule was to be arranged. The court indicated it would suspend imposition of sentence on condition husband obey all terms and conditions as ordered.
The next month husband filed a request to withdraw his no contest plea to the OSC re contempt. He claimed the attorney representing him was ineffective and that he was not actually in contempt because he had overpaid support. Husband does not direct us to a ruling on the request. Wife states the motion was denied but the minute order she cites does not mention the motion. In any event it was apparently denied because the court later sentenced husband on the contempt.
In April the court issued an order for husband to appear at a judgment debtor examination. After the examination the court ordered husband to produce financial and bank statements for GeoCubed and to refrain from transferring or encumbering any real property held in his own name or by GeoCubed.
In May 2016 husband filed a civil action against wife for breach of contract and declaratory relief on these same grounds. (Montazer v. Montazer (Super. Ct. Orange County, 2016, No. 30-2016-00850959).)
This is the subject of a separate appeal, (Montazer v. Montazer (Dec. 27, 2017, G054423) [nonpub. opn.]), the opinion in which we file concurrently herewith.
In July 2016 the court issued the Findings and Order After Hearing (FOAH). It found the unallocated arrearages for child and spousal support were approximately $297,300 for principal and just under $257,000 in interest and set out a payment schedule. The amount due reflected various credits given to husband for certain payments he made.
The court issued minute orders after each of the hearings.
The FOAH also required husband to transfer certain real property he owned in Nevada to wife. The court terminated spousal support to wife as of February 2015 pursuant to the parties' stipulation, but reserved jurisdiction on the issue. Finally, the court suspended imposition of sentence on husband's contempt conviction, placing him on three years' informal probation on condition he make the arrearage payments set out in the order, transfer the Nevada property to wife by a date certain, and violate no law.
DISCUSSION
1. Lack of Reporter's Transcript
Husband elected to proceed without a reporter's transcript on appeal. But it was his burden to provide the transcript if he intended to "raise any issue that require[d] consideration of the oral proceedings in the superior court." (Rule 8.120(b).) Without that transcript we have no idea what occurred during the hearings except what is noted in the minute orders. Unless an error appears on the face of a minute order, we cannot make any determination as to the sufficiency of the evidence or whether the court abused its discretion. (Oliveira v. Kiesler (2012) 206 Cal.App.4th 1349, 1362 (Oliveira).) "[N]or can we assess the merits of [any] contentions about certain rulings or statements made by the trial court during the hearings in question." (Rhule v. WaveFront Technology, Inc. (2017) 8 Cal.App.5th 1223, 1228-1229, fn. omitted.)
Rather, the FOAH is presumed correct. (Oliveira, supra, 206 Cal.App.4th at p. 1362.) "'"'All intendments and presumptions are indulged to support it on matters as to which the record is silent. . . .'"'" (Ibid.) "'The absence of a record concerning what actually occurred at the trial precludes a determination that the trial court [erred].'" (Ibid.) 2. Child Support
Husband challenges the FOAH ruling the $4,000 per month child support was unallocated and payable until the younger child reached 18 and was out of high school. He claims that, under the Judgment and MTA, child support ended when the first child graduated from high school. He relies on the following italicized language in the MTA requiring him to pay $4,000 per month to "continue as to each said child until the child attains his or her eighteenth (18th) birthday, or if he or she is a full-time high school student residing permanently with [wife], until he or she graduates from high school or attains his or her nineteenth (19th) birthday, whichever (1st) first occurs; dies; marries; becomes otherwise emancipated; or until further order of court; whichever of the foregoing first (1st) occurs." He argues this provided for a "step-down as to each child," when that child turn 18 or graduated from high school, whichever occurred first. (Boldface omitted.) We disagree.
Interpretation of the MTA is a question of law, which we review de novo if there is no extrinsic evidence or if any extrinsic evidence is not conflicting. (Lucas v. Elliott (1992) 3 Cal.App.4th 888, 892. Again, husband did not designate a reporter's transcript and we cannot determine if any extrinsic evidence was admitted. Thus, we must construe the MTA based on its contents alone.
The language of the MTA and the identical language in the Judgment contradict husband's claim. The MTA and Judgment both provide if the child was 18 and still in high school and residing with wife, support was to continue until the earlier of the child turning 19 or graduating from high school.
Further, as husband's italicized language highlights, the MTA and Judgment state support is to continue "as to each child." If we accepted husband's interpretation, he would not have paid any child support for his younger child once the older child reached 18 or graduated from high school. This violates the law and public policy.
A parent has a duty to support his minor children. (Fam. Code, §§ 58, 3900, 3901, 6500; In re Marriage of Ayo (1987) 190 Cal.App.3d 442, 449.) This duty is owed directly to the child and a parent may not limit or modify it. (In re Marriage of Comer (1996) 14 Cal.4th 504, 517.) Thus, husband and wife could not have agreed to terminate child support before the younger child reached age 18 or graduated from high school.
Although unclear, it could be that husband is arguing the MTA provided the amount of child support would be halved once the first child turned 18. But this is contrary to the plain language of the MTA, which did not allocate the amount of child support to either child.
Husband asserts the judge to whom the case had previously been assigned agreed with this interpretation. But husband's support for this claim consists of an affidavit of his present wife who reported husband's lawyer had told her of the prior judge's position. This is incompetent evidence consisting of multiple layers of hearsay, among other problems. And, even if competent, it is irrelevant. Husband points to nothing in the record that shows the previous judge made any orders on the issue.
Husband maintains he was entitled to a credit pursuant to Jackson v. Jackson (1975) 51 Cal.App.3d 363 and Helgestad v. Vargas (2014) 231 Cal.App.4th 719. Under Jackson a credit is given where a party has satisfied child support by taking physical custody of a child. (Jackson at p. 368.) Husband fails to direct us to any evidence he took physical custody of either child.
A credit under Helgestad is equitable and it may be given for a period where the parties began living together to attempt reconciliation. (Helgestad v. Vargas, supra, 231 Cal.App.4th at p. 735.) To be eligible, husband had the burden to show he provided "actual in-kind or in-the-home support." (Ibid.)
Husband claims he moved in with wife and children for a period of 21 months in an attempt to reconcile. The FOAH noted the cohabitation and ordered a credit of $18,000. This directly contradicts husband's assertion the court rejected his claim he moved in with wife to reconcile but found it was merely for business purposes.
Husband argues he overpaid both child and spousal support by at least $72,000. He maintains he presented documents showing he paid almost $838,000 for support, $553,000 for spousal support and the balance paid directly to the children for college expenses.
Here again husband is challenging the sufficiency of the evidence. But as discussed above, due to the lack of a reporter's transcript, we have no basis to evaluate the claim and must presume the evidence was sufficient to support the court's findings.
Moreover, husband did not set out the substantial amount of credit the court did award him. This failure to fairly summarize all material evidence on the issue is another basis for rejecting this claim. (Huong Que, Inc. v. Luu, supra, 150 Cal.App.4th at p. 409.)
In cursory fashion, husband mentions he should have been given credit for support of his incapacitated adult child. This argument fails for several reasons, including the lack of any evidentiary support or reasoned legal argument. (Rule 8.204(a)(1)(B); Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.) His reference to his argument in points and authorities in the trial court is not sufficient to meet his burden on appeal. 3. Modification of MTA
As noted above, husband maintains he should have been given credit of approximately $285,000 for payment of the children's college expenses. In support he relies on two pieces of evidence extrinsic to the MTA that he attached to the RFO Spousal Support and also introduced into evidence. The first was an August 31, 1999 letter he sent to wife's attorney when the parties were negotiating the MTA (Husband's Letter). In Husband's Letter, he referred to a provision in the draft MTA stating the community property was equally divided. He asserted division was not equal and said he would not sign "such a statement." He stated his only purpose in buying the Colorado Property was to have "backup for when my kids reach the college age. I trust that is [wife's] intention also."
The second piece of evidence was a letter he received from wife's counsel dated September 9, 1999 (Fouste Letter). The Fouste Letter stated: "Section 3.4 of the [MTA regarding husband's company car] has been revised. The text you requested in the September 8, 1999, letter [not Husband's Letter] has been copied into the Agreement verbatim." (Italics omitted.)
Husband argues the two letters are sufficiently connected to the MTA such that they were all part of the same transaction. They required wife to pay for children's education, which he claims she did not. He claims wife falsely promised she would use the Colorado Property for that purpose to induce him to agree to an unequal division of community property. Husband argues wife breached the MTA and the properties should be divided equally and/or he should be given a credit toward spousal support.
As noted above, this is the claim made in husband's breach of contract claim in Montazer v. Montazer No. 30-2016-00850959. We do not understand husband's contention "the trial court should not have made a ruling related to the breach of contract, which was never pleaded by [husband] in the trial court."
The FOAH found Husband's Letter did not modify the Judgment and did not make wife responsible for the children's education. We agree and conclude the trial court correctly interpreted the MTA.
There are several problems with husband's argument, not all of which need to be enumerated. Husband points to nothing in the record to show wife or her counsel agreed to the terms of Husband's Letter. And, importantly, the MTA was an integrated agreement as made manifest by the several provisions to that effect it contained. "Terms set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms included therein may not be contradicted by evidence of prior agreement or of a contemporaneous oral agreement." (Code of Civ. Proc., § 1856, subd. (a).) Thus neither Husband's Letter nor the Fouste Letter may be used to vary the terms of the MTA.
Further, contrary to husband's position, the MTA stated the community property division was equal and husband signed it. Moreover, the MTA did not require wife to use the Colorado Property for the children's education. Factual recitals in a written contract "are conclusively presumed to be true as between the parties thereto." (Evid. Code, § 622.) 4. Contempt Action
Husband makes two arguments regarding the OSC re contempt. He contends the court should have allowed him to change his no contest plea to not guilty and also asserts the court erred in putting the burden of proof on him.
Taking the latter argument first, there is nothing in the record to support husband's claim the court placed the burden of proof on him. He pleaded no contest so there was no hearing on the matter. We also note husband brought his RFO Spousal Support, for which he did have the burden of proof.
A motion to withdraw a plea is within the discretion of the trial court. (See People v. Nocelotl (2012) 211 Cal.App.4th 1091, 1097.) Because there is no reporter's transcript we must presume the court properly exercised its discretion. (Oliveira, supra, 206 Cal.App.4th at p. 1362.) 5. Judgment Debtor Examination, Discovery, and Nevada Property
Husband argues the court should not have ordered the judgment debtor examination until after finding he owed support to wife. But by the time the examination was ordered, husband had already pleaded no contest to the OSC re contempt, admitting he owed support under the Judgment. A judgment debtor examination is a procedure "to furnish information to aid in enforcement of [a] money judgment." (Code Civ. Proc., § 708.110, subd. (a).)
Husband claims the court erred in requiring him to produce GeoCubed financial documents, claiming they were not relevant to the contempt action. Husband does not direct us to the documents nor make reasoned legal argument in support of the claim, which therefore fails.
Husband also challenges the FOAH requirement to transfer certain Nevada real property to wife, arguing the court had no jurisdiction over a Nevada property owned by a Nevada corporation. Once more, without a reporter's transcript we are unable to evaluate this claim because we have no evidence about the Nevada property.
Husband also complains the court "arbitrarily" attached a $50,000 value to the Nevada property when it was actually worth over $75,000. But the minute order states the parties agreed transfer of the Nevada property would be a credit of $50,000 toward the principal amount in arrears. 6. Appointment of Commissioner
While the hearing was ongoing, wife's attorney, Paul Minerich, was hired by the Superior Court of Orange County as a commissioner. The court disclosed this to husband's counsel, noting "this court was not part of the selection process." Husband claims it was a conflict of interest for the court to allow Minerich to continue representing wife. We disagree. The record does not reflect when Minerich actually assumed his duties as a commissioner. There is nothing to show he represented wife at a time when he was a commissioner.
Husband challenges certain rulings in wife's favor, including granting wife's ex parte application to specially set her motion to determine child support arrearages, arguing it was "clear favoritism by the trial court toward . . . Minerich" who was being considered for or after his selection as a commissioner. Husband also asserts Minerich abused his position as a commissioner "to coerce" favorable rulings on behalf of wife. This argument fails for several reasons.
Primarily, there is not a shred of evidence to support the claim. Further, the fact a judge makes unfavorable rulings does not demonstrate bias. "When making a ruling, a judge interprets the evidence, weighs credibility, and makes findings. In doing so, the judge necessarily makes and expresses determinations in favor of and against parties. How could it be otherwise?" (Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1219.) 7. Miscellaneous Claims
Husband complains he was not given the opportunity to cross-examine wife. Nothing in the clerk's transcript shows he asked to do so. As discussed above, because there is no reporter's transcript, we are unable to determine whether the court abused its discretion. (Rhule v. WaveFront Technology, Inc., supra, 8 Cal.App.5th at pp. 1228-1229.) For the same reason we cannot consider husband's claim the court erred by refusing to allow him to read his opening statement, prejudging it "[a]rgumentative." (Italics omitted.)
One minute order states husband's counsel offered a trial brief in lieu of an opening statement.
Husband asked us to review whether the court had jurisdiction over his second wife, a citizen of Nevada who owned no property in California. But except for a one-sentence claim of lack of jurisdiction in the reply brief, husband never makes an argument on this issue or any further reference. It is forfeited for this reason (rule 8.204(a)(1)(B); Benach v. County of Los Angeles, supra, 149 Cal.App.4th at p. 852) and for lack of a reporter's transcript.
Husband also asked us to review salary wife purportedly was paid after her employment by the company they co-owned was terminated. It is forfeited for the same reasons as the jurisdiction issue mentioned just above.
Husband claims wife waived her right to recover because she unreasonably delayed in filing the OSC re contempt and RFO's, causing him to lose records. But again, without a reporter's transcript we cannot evaluate the argument. The same is true regarding the source of wife's income and balances in her bank account.
Husband complains the matter was transferred to a different judge without his attorney being present. The minute order reflects it was assigned to Judge Miller to conduct the hearing. It also reflects both counsel were present. Husband's explanation of what occurred in the hallway is not in the record and we cannot consider it.
Husband challenges a reference to his attorney in one of the minute orders, asking that we strike it because he was self-represented at the time. The misstatement, if any, does not warrant action on our part because husband was not prejudiced by it and no different result is likely had the order stated he was acting in propria persona (Code Civ. Proc., § 475.) Further, the first page of the minute order shows husband appeared without counsel as did the FOAH itself.
Husband maintains his attorneys were ineffective. This claim is legally irrelevant here. Any dispute husband may have with his lawyers is not before us in this appeal. We may not reverse a civil judgment based on alleged incompetency of counsel. (Chevalier v. Dubin (1980) 104 Cal.App.3d 975, 979-980.)
Husband also claims wife is vindictive and out to destroy his life, stating the reporter's transcript would support this claim. We have already discussed the consequences of the absence of a reporter's transcript. In addition, husband has not shown why this is legally relevant.
DISPOSITION
The order is affirmed. The motion to augment is granted. Wife is entitled to costs on appeal.
THOMPSON, J. WE CONCUR: FYBEL, ACTING P. J. IKOLA, J.