Marriage of Taghavi and Afkham
Filed 2/14/13 Marriage of Taghavi and Afkham CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF
THIRD APPELLATE DISTRICT
(Yolo)
----
In re the Marriage of
FARAH TAGHAVI and JAFAR AFKHAM.
C068768
(Super. Ct. No.
CV-FL-07-1845)
FARAH TAGHAVI,
Appellant,
v.
JAFAR AFKHAM,
Respondent.
In short
order, the parties met in April 2005, married in October 2005, had a son
in May 2006, separated in September 2007, and instituted the
2007 on the petition of appellant Farah Taghavi. It then took until July 2011 for those
proceedings to come to a judgment. This
incorporated both an April 2011 statement of decision after trial and a May
2011 order that was in response to Taghavi’s posttrial request (in February
2011) for a modification of custody and to her objections (in April 2011) to
the statement of decision.
On
appeal, Taghavi contends the trial court’s decision to deny her any visitation
with her son fails to make the necessary finding that visitation would be
detrimental to the child, did not consider supervised visitation as a less restrictive
option, imposed improper criteria (that she seek work and document her
educational accomplishments) in order for her to demonstrate a change of
circumstances with respect to visitation, and did not limit a criterion of
undergoing mental health counseling to the statutory one-year period. With respect to issues regarding property
division, she argues the trial court erred in finding that she had failed to
carry her burden to establish there had been community contributions to an
investment account that was the separate property of her ex-spouse, respondent
Jafar Afkham, and in failing to determine whether there was any community
interest in another investment account (the existence of which Afkham
acknowledged in trial court briefing, but which apparently was not otherwise
addressed at trial) despite her request to reserve jurisdiction over it in
posttrial briefing.
Affecting
our review of Taghavi’s contentions is Afkham’s request to expand the record on
appeal to include an April 2012 order denying Taghavi’s request for a
Nicholas H. (2003) 112 Cal.App.4th 251, 260 [under Code Civ. Proc.,
§ 917.7, trial court retains jurisdiction to address any issue of
visitation in any civil action notwithstanding pending appeal embracing the
issue].) While Afkham styles his request
as a motion to augment, we will deem it to be a motion to take judicial notice
of this order, because we cannot “augment†the record with matters that were
not part of the record before the trial court in rendering its judgment. (People
v. Jones (1997) 15 Cal.4th 119, 171, fn. 17.) We will grant the request.
We find
Taghavi’s arguments either without merit, judicially estopped, or moot.
therefore shall affirm the judgment. We
will deny Afkham’s offhand request for an award of legal fees (for the costs of
consulting with “an advising attorneyâ€)
that appears in the final sentence of his “Conclusion†without any
authority or elaboration.
FACTUAL AND PROCEDURAL BACKGROUND
Taghavi’s
challenges do not, for the most part, contest the evidence that underlies the judgment’s findings (as opposed to
their legitimacy). We therefore focus on
the judgment’s factual and legal findings pertinent to her claims.
Custody:
Statement of Decision
The
statement of decision noted that this litigation “has been an extraordinarily
high[-]conflict case†in which neither of the parties had been “entirely
credible.†However, Taghavi’s claims of
domestic violence on Afkham’s part were without any documentation and the court
did not find her to be a credible witness.
The court modified the parenting plan that had been in effect at trial
based on Taghavi’s “erratic behavior†and “inability to organize her own life,â€
and discredited her testimony to the contrary on this issue. Her behavior left the court concerned about
Taghavi’s desire (announced on the last day of trial) to move herself and the
minor to the Bay Area. This would
separate the minor from the stable home Afkham could offer and any connection
with Taghavi’s family, which the court concluded was not in the minor’s best
interests. While Afkham was capable of
facilitating visitation with Taghavi if given primary physical custody, she by
contrast was “not capable without high conflict in co-parenting issues.â€
The court
thus awarded Afkham sole legal and physical custody. It allowed Taghavi to have three weekend
visitations each month and shared holidays.
Custody: May
2011 Order After Trial/Rulings on Objections
In its
order regarding Taghavi’s posttrial request for visitation, the court spent 18
pages detailing her behavior over the course of the litigation (also finding
her “allegations and defenses lack[ed] credibility†on various grounds). This included her suspect and unverifiable
claims of seeking work in accordance with numerous court orders and of pursuing
higher education (which involved her changing schools and programs every six
months) despite vocational tests that showed her incapable of the critical
thinking necessary for the latter.
custody in January 2008 based on numerous allegations of domestic violence that
were never subsequently substantiated and which taxed the resources of the
Davis Police Department. The court also
identified an incident in which Taghavi drove off from a planned child exchange
after the minor had seen her, causing him to cry. The court credited Afkham’s declarations
filed over the course of the litigation attesting to Taghavi’s numerous efforts
to obstruct his parenting time. The
court further noted that following the trial in this matter, Taghavi made a
claim that Afkham had tried to kill her, which the court did not find credible.
This led
the trial court to conclude that her “erratic and unstable conduct†was “not in
the best interest†of the minor. “Based
on the totality of the circumstances, the mother’s conduct shows a lack of
commitment to co-parenting the minor child with the father. Her history of starts-and-stops at college
studies, of domestic violence allegations never substantiated, of obstruction
of the father’s parenting time, of claiming [an] outrageous amount of expenses
on her [income and expense] statements, of failing to secure employment, of
moving away without thoughtful consideration, of pursuing unsubstantiated
claims of contempt, of requesting trial continuances without cause, of delaying
participation in mediation and the vocational evaluation, all demonstrate that
she is not currently capable of acting in the best interest of the child.†On balance, Afkham’s “failings are minor
compared to the pattern of misconduct engaged in by the mother.â€
The court
reaffirmed its previous award of sole legal
and physical custody to Afkham. It
ruled Taghavi should not have any visitation rights without further court
order. To obtain any modification of its
order, the court generally required Taghavi to “produce specific and
substantial evidence that she will not be a barrier to co-parenting and that
she will act in the best interest of the child,†and of her strict compliance
with the provisions of the order. As is
pertinent, the provisions included orders to “seek work and show proof to the
Court,†to “obtain a full mental health assessment,†to “enroll in mental
health counseling,†to submit notarized proof of any subsequent educational
efforts (including grades), and to “obtain a declaration from [a vocational
evaluator] summarizing her higher education . . . in Iran and the
United States†(including authenticated transcripts). The court declared its intention “to put an
end to the mindless and irresponsible litigation†of the dissolution through
“strict compliance†with the terms of its judgment.
Custody:
April 2012 Order
In April
2012, the court issued its findings in an order after a hearing on Taghavi’s
motion for visitation with the minor to celebrate his sixth birthday in May.
summarized the five criteria for Taghavi to obtain a modification that we related
above. It referred to the evidence in
the prior order on which it had rested its “finding of detriment to the child
pursuant to Family Code [section] 3100.â€
not expressly reflect this) that it had offered the option of supervised
visitation to Taghavi, but she rejected it.
Therefore, a finding of detriment was not previously necessary, and was
not necessary in the April 2012 proceedings because she continued to reject the
option of supervised visitation. It
noted, “There is no reason for the Court to order supervised visitation if the
parent will not accept it.â€
Because
Taghavi had not complied with the criteria in the judgment to obtain
modification “in any meaningful way†(which included her refusal to enroll in
therapy, purportedly because it was not limited to a term of one year), she had
failed to support a request for unsupervised visitation (even though her
parents had obtained grandparent visitation rights).
requirement of mental health counseling to a period of one year, and specified
that the work and educational provisions in effect would not be tied to the
issue of custody but of child support.
Property Division:
Issues Identified in Trial Briefing
The
parties had executed a prenuptial
agreement in October 2005 under which Taghavi relinquished any claim to
Afkham’s listed separate property, which included investment accounts. The trial court, however, had declared it
unenforceable in July 2009.
In
Afkham’s February 2010 trial brief, his attorney noted among the issues that
“[t]he bank accounts were commingled†and that an unspecified account had grown
in value by over $250,000, but after credit for payment of community taxes
there would be at most about $211,000 to divide. The trial brief also noted, “There is no
retirement fund, except $13,000 in IRAs.â€
Taghavi’s
attorney was less specific (claiming additional discovery was necessary), contending
only that there was an increase in the community interest in “savings†of over
$500,000.
(We skip
any summary of testimony at trial on the issue of the division of bank
accounts. We will return to the subject
in the course of the Discussion.)
In the
posttrial brief, Afkham’s counsel noted that among assets not covered at trial was “an IRA into which the community deposited
$8,000†that had been identified at a
settlement conference. Counsel
requested that the court award the community $8,000 for these deposits while
awarding the account to Afkham as his separate property. What was now identified as Afkham’s separate
property Bank of America account (on which his mother was a co-account holder)
had a balance at the date of marriage of about $470,000 and at the date of
separation of about $775,000, though “[t]here was no testimony as to the source
of deposits during marriage and effective tracing.†Afkham had paid about $109,000 in community
taxes from this account. Counsel
requested the account be confirmed as Afkham’s separate property “less any
order the Court may make regarding any community share of payments made during
marriage.â€
Taghavi’s
counsel asserted in the posttrial brief that “[t]here is no evidence of any
source of income during the marriage other than [Afkham’s] dental practice, so
this growth in [the Bank of America account] is community property.†As for the IRA, counsel asserted the amount
was unknown, and made a request for the court to retain jurisdiction until
Afkham produced records establishing the community interest in it. In response to the court’s tentative
statement of decision, Taghavi requested the court to “set forth its reasoning
for concluding that the . . . growth during the marriage of the Bank
of America savings account was not community property.â€
Property Division:
Judgment
The court
confirmed the primary residence, which Afkham had paid for in full before the
marriage, was his separate property in which Taghavi had failed to establish
any community interest or entitlement to reimbursement. It found Afkham was entitled to a credit of
$9,000 for Taghavi’s exclusive use of the residence after separation for three
months. (In re Marriage of Watts (1985) 171 Cal.App.3d 366, 374.)
The court
awarded a 2006 Volvo that was community property to Taghavi, which was worth
four times the value of a 1997 BMW she held as separate property. (The May 2011 order noted that her family
paid off an outstanding $12,000 loan on the Volvo.)
“The Bank
of America account is the separate property of [Afkham] and [Taghavi] has no
interest in it. The account was
established prior to the marriage. The
fact that it increased in value during the marriage does not transform the
separate property into community property, no more than had the account
decreased in value would the community be responsible for the loss. What is relevant is whether the community
contributed to the account during the marriage.
[Taghavi] failed to trace to the community any contribution to this separate
property. There was no evidence as to
the basis for the increase during the marriage.â€
After
finding a $13,000 community interest in Afkham’s dentistry practice, the court
concluded Taghavi was not entitled to any equalizing payment because the
more than offset the community interest in the dental business. The trial court reserved jurisdiction over
property division.
In its
May 2011 order, the court overruled the objections that Taghavi made to the statement
of decision. It stated, “she
. . . submitted a rambling dissertation . . . [that] fails
to cite to the record to support her argument,†with “objections
. . . not clearly articulated†and “inadmissible self-serving
allegations.†(In the midst of these
ramblings appeared a tangential reference to the “evaluation of [the parties’]
community [interests],†including Afkham’s IRA.
She also reasserted her objection that the increase in the Bank of
America account necessarily came from community assets. The court then declared its statement of
decision was now final as to all reserved issues.
DISCUSSION
I. Custody
A. Denial of Visitation
We note
Taghavi does not dispute the sufficiency of the evidence to support the trial
court’s factual findings in its visitation order. After reciting general principles of law
relating to the issue of visitation, Taghavi at last identifies the error she
perceives in the order denying her any visitation with the minor. She asserts, “there was no finding that it
would be detrimental to [the minor] to have continued contact with [her],†and
that “it was apparent†the decision rested instead on the court’s announced
desire to put an end to the fruitless litigation of the parties’ dissolution.
In making
custody determinations, a trial court must afford a noncustodial parent
reasonable visitation with a child absent a finding that visitation would be
detrimental to the child’s best interests.
(§§ 3100, subd. (a), 3011, subd. (a) [defining best interests as
including health, safety, and welfare of child]; 2 Hogoboom &
King, Cal. Practice Guide: Family Law (The Rutter Group 2012) ¶¶ 7:480
to 7:481, pp. 7-182 to 7-183 (rev. #1, 2011) (Hogoboom); Camacho v. Camacho (1985) 173 Cal.App.3d 214, 219.) A trial court’s visitation decision is
reviewed for abuse of discretion. (
197 Cal.App.3d 1024, 1028; Hogoboom, supra,
¶ 7:485, p. 7-187 (rev. #1, 2011).)
An intent to thwart the custodial rights of the other parent, which can
be inferred from dishonest or recalcitrant acts, supports the restriction of
the visitation rights of the noncustodial parent. (In re
Marriage of Economou (1990) 224 Cal.App.3d 1466, 1486-1487; Hogoboom,
#1, 2007).)
Taghavi’s
contention is thus sophistic and borders on the frivolous. The trial court’s findings summarized above
show its concerns that Taghavi’s conduct is sufficiently erratic to give it
concern about her mental stability, that her word is entirely to be distrusted,
that she has acted throughout the litigation with a motive to deprive Afkham of
rightful custody and to do anything to achieve that aim (including the false
reports of domestic violence), and that she has not given any thought for the
minor’s best interests as opposed to her own convenience (e.g., abandoning him
at the child exchange after he saw her, or intending to reside with him far
from the father and maternal grandparents).
This led the trial court to find expressly that Taghavi was not capable of acting in the minor’s best
interests.
Taghavi
argues there is a distinction between a finding of “best interest†and one of
“detriment,†invoking the analogous requirement in the context of determining
nonparent visitation rights over the objection of a parent. In re
Marriage of Gayden (1991) 229 Cal.App.3d 1510 held that a finding of
best interest was not sufficient to
grant nonparent visitation of itself; there must be a showing that denial of
the visitation would be detrimental to the child in order to overcome the
objection of the parent. (
might be in a child’s best interest, but a court cannot select an objectionable
one absent a showing of detriment if it is not
chosen. That is not the equivalent of
holding that a finding of visitation “not
being in a child’s best interests†is different
than finding the visitation is
“detrimental.†Rich v. Thatcher (2011) 200 Cal.App.4th 1176 makes this exact
point: “If grandparent visitation
it is not ‘detrimental.’ If grandparent visitation is
it is ‘detrimental.’ †(Id.
at p. 1179, italics added.)
Moreover, even if the failure to use the word “detriment†in the
judgment had any legal import, the
April 2012 order indicates the trial court would simply issue the exact same
judgment employing the magic word, which obviates any basis for reversal. (Rojas
v. Mitchell (1996) 50 Cal.App.4th 1445, 1450 [failure to make finding
harmless where under facts of case it necessarily would be adverse to
appellant].)
Taghavi
also appears to suggest that the factual findings do not establish behavior
egregious enough to warrant the denial of visitation in its entirety. (Devine
v. Devine (1963) 213 Cal.App.2d 549, 553.) To this end, she cites express statutory
authorization for the denial of all visitation to a parent in certain
circumstances. (§§ 3027.5, subd.
(a) [false report of child sexual abuse], 3030, subds. (a)-(c) [conviction of certain
sex offenses or murder of other parent], 3048, subds. (b)(1) & (2) [risk of
child abduction], 3100, subd. (b) [subject of protective order], 3118, subd.
(f) [investigation of child sexual abuse].)
However, in reviewing a decision for an abuse of discretion, the
existence of situations at the far end of the continuum of behavior in which
the restriction of visitation is mandated or authorized does not undermine the
reasonable basis for a similar decision in the present case. Taghavi’s extreme behavior in the present
case warranted the trial court’s reasonable conclusion that she could not be
trusted even with temporary custody until she demonstrated affirmatively that
she was willing to remedy its underlying causes. As a result, we do not find an abuse of
discretion.
B. Failure to Consider Supervised Visitation
In a
single paragraph, Taghavi asserts it was mandatory for the trial court to
consider the lesser alternative of supervised visitation. Though the judgment does not include this
fact, the April 2012 order (as we noted above) reflects the trial court’s
recollection that it had offered this
option before entry of judgment, but Taghavi refused it, and also documents the
fact that she continued to refuse it at the time of the April 2012 order. Contrary to Taghavi’s argument, we can take
judicial notice of the documentation in the April 2012 order of her litigation
posture with respect to supervised visitation in the trial court. (See Bach
v. McNelis (1989) 207 Cal.App.3d 852, 865; People v. Tolbert (1986) 176 Cal.App.3d 685, 690; cf.
119 Cal.App.4th 140, 148 [may take judicial notice of issues raised in one
proceeding to compare with issues raised in another for purposes of issue
preclusion].)
While it
is true that a trial court cannot modify its findings nunc pro tunc in a
subsequent order for the purpose of affirming the judgment (
4 Cal.App.4th 625, 629), Taghavi is precluded from raising this issue on
appeal for a different reason. The April
2012 order is competent to establish that in the trial court, Taghavi has and
continues to refuse to accept supervised visitation as an alternative. As a matter of judicial estoppel, she consequently cannot maintain a contrary
position here to trifle with this court.
Judicial
estoppel applies where a party asserts a position for strategic advantage in
one phase of a case, having taking a contrary position deliberately in a different
phase for strategic reasons that the court accepted as true in that phase. (Aguilar
v. Lerner (2004) 32 Cal.4th 974, 986; Milton H. Greene Archives,
Inc. v. Marilyn Monroe LLC (9th Cir. 2012) 692 F.3d 983, 993, 994 [under
federal law, judicial estoppel is set of related doctrines, not a cohesive
theory, governed by three equitable general principles without any fixed
prerequisites].)
Taghavi
refused supervised visitation in the
trial court in an effort to obtain unrestricted visitation and continues to
refuse it. The trial court accepted this
litigation stance. We will not allow her
to play “fast and loose†with this court, attempting to seek reversal with a
contrary stance in perversion of the judicial machinery. (The
Swahn Group, Inc. v. Segal (2010) 183 Cal.App.4th 831, 841.)
Taghavi
continued to insist at oral argument that various points in the record
demonstrate that the trial court did not broach the issue of supervised
visitation with her before entry of the 2011 judgment (even though this had
been a recommendation of the district attorney as early as February 2010 to
deal with its recurrent involvement in the custody arrangements, and Afkham
made a pretrial request to this effect as well). This necessarily carries the unpleasant
implication that the trial court’s finding in April 2012 was either mistaken or
dishonest. However, as with the other
May 2011 minutes involving visitation (of which we have refused to take
judicial notice), the happenings in 2011 are ultimately immaterial. Even if we ignore them entirely, her position
at the April 2012 proceedings
demonstrates that reversal for reconsideration of supervised visitation would
be an idle act. We respectfully decline
to waste scarce judicial resources in this fashion.
C. Improper
Conditions on Modification of Order
In two
additional one-paragraph arguments, Taghavi asserts it is improper to condition
a future modification of visitation on compliance with conditions of seeking
work and documenting her postsecondary educational efforts, and to impose a condition
of mental health counseling for a period of more than one year in violation of
section 3190. We may properly take
judicial notice of the conditions in the present April 2012 order, in which the
trial court expressly severed any connection between the issue of visitation
and the work/education conditions, and expressly limited the condition of
undergoing counseling to a period of one year.
This moots her two arguments, because she has failed to demonstrate any
benefit to her in modifying the judgment at this point in the manner she
requests, where she did not make any effort to comply with the conditions
before the trial court itself modified them.
We therefore cannot grant any effective relief.
II. Property
Issues
A. Bank of
America Brokerage Account
Once a
party demonstrates there is commingled in an account both separate funds and
funds having their source in the community, a presumption arises that the
entirety of the account is community property unless the party asserting a
claim of separate property can overcome this presumption with adequate tracing.
(11 Witkin, Summary of Cal. Law
(10th ed. 2005) Community Property, § 113, pp. 675-676;
194 Cal.App.3d 1006, 1018, 1019.)
Taghavi
contends substantial evidence does not support the finding in the judgment that
she had failed to establish the deposit of any community funds in Afkham’s Bank
of America brokerage account. She cites
the following isolated pieces of evidence from the trial. We note that it is her obligation as an
appellant to identify the portions of the record in support of her argument,
because this court will not search through the record independently in
evaluating her claim. (
v. Chino Community Hospital
(1999) 72 Cal.App.4th 849, 856.)
Thus, to the extent there is any other
evidence on the issue in the record, she has forfeited our consideration of it.
Afkham’s
accountant prepared his tax returns for 2006 to 2009. He was not aware of any other businesses from
which Afkham derived any income other than his dentistry practice. Taghavi was also not aware of any other
sources of income.
Taghavi’s
forensic accountant provided an exhibit of more than 150 copies of checks and
deposit slips from February and March 2008,
which showed deposits of business income to an unspecified Bank of America
personal account (“3414,†to use the final four digits) in a net amount of
nearly $45,000 ($20,000 later having been transferred back to the business
account). As Afkham’s expert later
established, Afkham ultimately transferred the balance of the sum back to his
business account because it was erroneously deposited in the 3414 account, and
amended his business tax return to include it.
We note, however, the September 2007 statement for the Bank of America
brokerage (and linked checking) accounts on which the experts relied (showing
the $775,000 (rounded) balance at the time of separation) had account numbers
ending in “8855†(brokerage account) and “4562†(checking account),
respectively.
All this
evidence demonstrates is that Afkham had earnings
solely from his dentistry practice during coverture, and there apparently were
deposits to his separate account that increased the principal in excess of
accrued interest (and withdrawals to pay community debts). Taghavi, however, utterly failed to supply
any affirmative proof in support of her threshold burden to show that the
deposits had their source in Afkham’s earnings, as opposed to investment income
or other separate property, or gifts from his mother (who was a co-account
holder). Taghavi’s entire claim thus
rests on the unproven speculation that the deposits must have come from Afkham’s earnings. The trial court was not required to indulge
that speculation. The evidence that
Afkham mistakenly made deposits of business income to an unrelated personal bank account after
separation does not have any bearing on the issue whatsoever.
Bereft of
evidence, Taghavi seizes upon the representations in Afkham’s trial briefing
and claims we should treat these as binding “judicial†admissions of a
community interest in the Bank of America brokerage account. This displays a fundamental misunderstanding
of the nature of true judicial admissions.
A
proof of a fact in a pleading, in a
response to a request for admissions,
or in a stipulation, which is
2008) Pleading, § 452, p. 585, § 454, p. 587;
2 Witkin, Cal. Evidence (4th ed. 2000) Discovery, § 171,
p. 1000.) Admissions or concessions
in briefs, on the other hand, are
appellate) court is not bound to
accept them. (Bell v. Tri-City Hospital Dist. (1987) 196 Cal.App.3d 438,
448-449 [refusing to accept concession that attorney did not intend to name
party as a defendant].) While there may
be overly broad language in cases Taghavi cites that describe the latter as
“judicial†admissions, the more accurate application of the principle is
limited to a representation that is the equivalent of a formal stipulation.
The
statements in Afkham’s trial briefing do not pass the stipulation muster. A pretrial brief generally makes arguments
based only on perceived issues of anticipated evidence. Afkham’s attorney was asserting what the
attorney believed the evidence would show at trial with respect to property
issues, including commingling of bank accounts.
This cannot reasonably be read, however, as a representation to the
trial court or Taghavi’s attorney that proof
of the facts on the issue would not be necessary. This is made clear in Afkham’s posttrial
brief. Counsel expressly took the
position that there was an absence of any proof that traced the source of
deposits to the account, and requested that the trial court find Taghavi did
not have any interest in it (by reason of “equitable estoppelâ€).
Taghavi
thus fails to show any basis for treating the trial briefing as a species of
judicial admission that is binding on Afkham on appeal. As the evidence otherwise does not impeach
the finding of the trial court, we reject her claim of error.
B. IRA
As early
as Afkham’s settlement conference statement (which is itself inadmissible
evidence (2 Haning et al., Cal. Practice Guide: Personal Injury (The
Rutter Group 2012) ¶ 4:317, p. 4-157 (rev. #1, 2008)), as Taghavi
concedes, Taghavi was put on notice of the existence of an IRA into which
Afkham had purportedly deposited community income. However, Taghavi apparently did not litigate
the issue at trial, and simply asked the court after trial to reserve its jurisdiction over the issue until she
received discovery from Afkham regarding the amounts. The court did not address this issue
expressly, either in its original reservation of jurisdiction in the statement
of decision or in its later order deeming all property adjudications final.
Taghavi
now attempts to obtain a ruling in this court in the first instance on the
community interest in this alleged account on the basis of the prayer for
relief in Afkham’s posttrial brief (requesting an award to the community of
$8,000 in the account and an award of the account otherwise to Afkham), once
again asserting this was an admission.
Once again, this was not a formal judicial admission that obligated the
trial court to accept it in the absence of any
evidence on the issue at trial.
More
importantly, Taghavi has not explained why she may make initial application to
this court for a ruling on the issue.
Even where the judgment does not expressly reserve jurisdiction, a party
may move in the trial court to adjudicate
a community property interest not adjudicated in the judgment at any time. (§ 2556; 2 Hogoboom,
p. 8-364 (rev. #1, 2008); see also 2 Hogoboom, supra, ¶¶ 8:1520 & 8:1521, pp. 8-365 to 8-366 (rev. #1,
2012).) We thus reject her claim on
appeal without prejudice to pursuing it in the trial court where the parties
can introduce evidence establishing
the IRA’s existence and the community’s share in it.
III. Request for
Legal Fees
Afkham’s
one-sentence request for an award of legal fees on appeal does not explain the
basis for the request. If it is premised
on a belief that the appeal is frivolous and warrants sanctions, then his
failure to file a motion supported with a declaration establishing the amount
of any sanctions sought forfeits his entitlement. (Cal. Rules of Court, rule 8.276(b).)
If there
is some other basis for an award of legal fees on appeal under the Family Code,
then the better practice is to apply to the trial court in the first instance
for a determination of his entitlement to them and the amount. (Cf. Milman
v. Shukhat (1994) 22 Cal.App.4th 538, 546.) We therefore deny the request without
prejudice.
DISPOSITION
Afkham’s
motion to augment the record, which we construe as a motion to take judicial
notice, is granted. Taghavi’s motion to
take judicial notice is denied. Afkham’s
motion for leave to file a response is denied.
The judgment (which includes the May 2011 order) is affirmed. Afkham’s request for an award of attorney
fees on appeal is denied without prejudice to any request for fees in the trial
court. Respondent Afkham is awarded his
(2).)
BUTZ , J.
We concur:
HULL , Acting P. J.
DUARTE , J.
judicial notice of a May 2011 order (subsequent to the May 2011 order
incorporated in the judgment) denying another request for visitation. As it does not have any relevance to our
discussion of the issues in the present appeal, we deny the request. (People
v. Eubanks (2011) 53 Cal.4th 110, 129, fn. 9.) We also deny Afkham’s motion for leave to
file a reply to Taghavi’s opposition as unnecessary to our consideration of the
issue.
from granting effective relief because our decision would not affect the
outcome in the proceedings on remand, the appeal is moot. (In re
Anna S. (2010) 180 Cal.App.4th 1489,
1498.)
