Filed 3/3/22 Marriage of Talebi and Sarvari CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re Marriage of FARHAD TALEBI and
AREZOO SARVARI.
FARHAD TALEBI,
G059168
Respondent,
(Super. Ct. No. 16D002615)
v.
OPINION
AREZOO SARVARI,
Appellant.
Appeal from a judgment of the Superior Court of Orange County, Nathan
T. Vu, Judge. Affirmed.
Arezoo Savari, in pro. per.; and Holstrom, Block & Parke and Ronald B.
Funk for Appellant.
The Appellate Law Firm and Berangere Allen-Blaine for Respondent.
Appellant Arezoo Sarvari appeals from a judgment dissolving her marriage
to Respondent Farhad Talebi, arguing the trial court erred by refusing to consider her
evidence on the parties’ date of separation, and by setting the amount of spousal support
to zero. We conclude the trial court did not abuse its discretion by relying on appellant’s
verified response to fix the parties’ date of separation, or by setting the amount of
appellant’s spousal support at zero based on findings that appellant failed to testify
credibly about her current earning capacity and income. Accordingly, we affirm.
FACTUAL AND PROCEDURAL HISTORY
Appellant and respondent were married on July 1, 1995. In 2016,
respondent filed a petition for dissolution of the marriage, which specified January 1,
2015, as the date of separation. Appellant’s response, verified under penalty of perjury,
agreed with respondent’s petition that the date of separation was January 1, 2015. This
information is gleaned from the briefs of the parties, the reporter’s transcript, and the trial
court’s judgment of dissolution, as neither the response nor the petition themselves are
included in the record.
During the pendency of the case, respondent sought discovery from
appellant regarding various aspects of her finances, apparently including documents
relating to a mortgage obtained by appellant for her home in Canada. Appellant failed to
respond sufficiently to these requests, despite twice being ordered to do so, was twice
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sanctioned, and ultimately did not produce documents relating to this mortgage.
On the first day of trial, appellant (who at that point was self-represented)
took the position that the date of separation was September 2016, not January 1, 2015.
The trial court asked appellant whether she had filed a document taking that position
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This information is largely gleaned from the briefs, the reporter’s transcript, the trial
court’s judgment, and a minute order on one of respondent’s motions for sanctions, as the
discovery motions themselves are not included in the record.
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before trial commenced; appellant contended she had. The trial court allowed appellant
until the next day of trial to produce that document. The next day, appellant presented
the court with her witness list, along with an attached untitled document dated one week
earlier containing the assertion that the parties’ date of separation was “on September,
2016[,] [w]hen he moved out and file[d] for divorce.” The court indicated on the record
that, while the one-page witness list had been filed, the attached untitled document had
not, and was not in the court’s file. The court concluded appellant had not filed anything
with the court asserting a date of separation other than January 1, 2015, took judicial
notice of appellant’s response, which indicated a date of separation of January 1, 2015,
and found that the parties’ date of separation was January 1, 2015.
The court also heard extensive testimony on issues relating to child and
spousal support. During that testimony, respondent introduced appellant’s income and
expense declarations into evidence to impeach appellant’s testimony regarding her lack
of income. These income and expense declarations, prepared at various intervals over a
period of approximately nine months, showed appellant’s income as consisting solely of
the $1,435 per month in spousal support from respondent; her expenses ranged from
$4,715 per month to $4,853 per month. Meanwhile, appellant’s assets remained the
same, and she took on no significant additional debt.
At the conclusion of the trial, the court took the case under submission.
The court thereafter entered a judgment which resolved several of these issues against
appellant. The court found appellant not credible with regard to “her current earning
capacity and current income,” based on her evasive trial testimony, the unexplained
discrepancies in her income and expense declarations, her ability to purchase a $500,000
home in 2018 despite claiming to have been unemployed since 2016, and her refusal to
produce financial documents in discovery. Based on these factors, the court found
appellant had an undisclosed source of income rendering her self-sufficient. The court
also found appellant had unclean hands. Accordingly, the court set spousal support at $0
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for a period of at least 18 months and required appellant to show materially changed
circumstances thereafter to obtain any change in the amount of spousal support.
On the issue of the date of separation, the trial court found that the
appropriate date was January 1, 2015, based upon the agreement of the parties’ verified
pleadings and appellant’s failure to produce any document in which she had asserted a
different date of separation. The trial court observed that appellant “provide[d] no
explanation how her newly-claimed date of separation could have fallen months after
[respondent] filed the Petition for Dissolution and [appellant] filed her Response.”
Appellant timely appealed.
DISCUSSION
1. Date of Separation
Appellant contends the trial court denied appellant a hearing on the issue of
date of separation. Appellant takes the position that there is no applicable law or rule that
requires a party to identify all disputed or material issues prior to trial or else waive them.
In support of this contention, appellant points to In re Marriage of Umphrey (1990)
218 Cal.App.3d 647, 657 (Umphrey).
In Umphrey, the parties entered a marital settlement agreement dissolving
their marriage. (Umphrey, supra, 218 Cal.App.3d at p. 653.) In the settlement
agreement, the parties confirmed certain property as belonging to each spouse and agreed
that the husband would pay the wife spousal support. (Ibid.) Additionally, the settlement
agreement specified a date of separation of “September, 1979.” (Ibid.) The agreement
was approved by the court and incorporated into a final judgment of dissolution. (Id. at
p. 654.) Approximately a year later, the wife moved to set aside the settlement agreement
based on extrinsic fraud arising from the husband’s failure to disclose certain community
property assets, specifically a leasehold obtained in September of 1979. (Ibid.) The
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husband argued the date of separation was, in fact, much earlier than September of 1979,
while the wife argued the date was much later. (Ibid.) The trial court concluded it was
bound by the parties’ agreement on the date of separation, and accordingly granted the
wife’s motion to set aside the agreement. (Ibid.) The court of appeal reversed,
concluding the trial court was not bound, whether as a jurisdictional matter or via
estoppel. (Id. at pp. 656-659.)
Umphrey, however, is procedurally distinct from the present case. Unlike
Umphrey, which involved a motion for relief from a judgment based on fraud, this case
involves, in essence, a request at trial to amend a pleading. The trial court in this case did
not conclude it was bound, either jurisdictionally or via estoppel, to the date of separation
set forth in the pleadings, but instead concluded appellant had waived the issue by failing
to raise it in a timely fashion, and exercised its discretion to keep appellant from
amending her response at that late date.
Appellant’s verified response to the marital dissolution petition is the
family court equivalent of a verified answer. Under the Family Code, “[e]xcept to the
extent that any other statute or rules adopted by the Judicial Council provide applicable
rules, the rules of practice and procedure applicable to civil actions generally, including
the provisions of Title 3a (commencing with Section 391) of Part 2 of the Code of Civil
Procedure, apply to, and constitute the rules of practice and procedure in, proceedings
under this code.” (Fam. Code, § 210.) Further, in marital dissolution actions,
“Amendments to pleadings, amended pleadings, and supplemental pleadings may be
served and filed in conformity with the provisions of law applicable to such matters in
civil actions generally . . . .” (Cal. Rules of Court, rule 5.74(c)(1).)
Accordingly, we apply the normal rules applicable to requests to amend an
answer, and we review the trial court’s decision on such requests for abuse of discretion.
(Hulsey v. Koehler (1990) 218 Cal.App.3d 1150, 1159.) “Ordinarily, courts should
‘exercise liberality’ in permitting amendments at any stage of the proceeding.
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[Citations.] In particular, liberality should be displayed in allowing amendments to
answers, for a defendant denied leave to amend is permanently deprived of a defense.
[Citations.] [¶] ‘[N]evertheless, whether such an amendment shall be allowed rests in
the sound discretion of the trial court. [Citations.] And courts are much more critical of
proposed amendments to answers when offered after long unexplained delay or on the
eve of trial [citations], or where there is a lack of diligence, or there is prejudice to the
other party [citations].’” (Ibid.)
Here, appellant sought to amend her response to the petition: after long
unexplained delay (more than three years passed between appellant’s filing of her
response and the trial); not just on the eve of trial, but during trial itself; without any
showing of diligence; and disregarding the obvious prejudice to respondent resulting
from inability to prepare evidence on the issue for trial. Appellant argues she preserved
the issue or gave notice to respondent by submitting a letter from her former attorney to
the court in connection with one of the discovery motions discussed above. In the letter,
while describing certain documents included with the letter, the attorney wrote “[t]here is
a dispute as to the date of separation.”
There is no evidence the trial court was made aware of this document at the
time of trial in connection with this issue, even though the court gave appellant a full day
to locate and produce it. In any event, at most this document weakly rebuts the inference
that respondent was prejudiced by appellant’s unexplained delay in amending her
response. It does not demonstrate an abuse of discretion by the court.
2. Spousal Support
Appellant also argues the trial court erred by setting spousal support at $0.
In support of this argument, appellant claims that: (1) no substantial evidence supports
the court’s finding that appellant was self-sufficient; (2) the court’s finding of unclean
hands was insufficiently specific because it did not identify the particular documents
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appellant withheld; and (3) the portion of the order controlling duration is ambiguous.
The court did not err.
We review spousal support awards for abuse of discretion. (In re Marriage
of Williamson (2014) 226 Cal.App.4th 1303, 1312.) “In exercising its discretion,
however, ‘a trial court must “follow established legal principles and base its findings on
substantial evidence.”’” (In re Marriage of Pasco (2019) 42 Cal.App.5th 585, 590.)
Thus, because appellant specifically challenges the trial court’s finding of appellant’s
self-sufficiency, we apply the substantial evidence standard.
The trial court’s finding of appellant’s self-sufficiency is supported by
substantial evidence. As discussed above, and as the court explained, the income and
expense declarations submitted to the court by appellant showed expenses substantially
exceeding her income, but no reduction over time in her assets. Moreover, appellant’s
admitted ability to obtain a mortgage and purchase a home in 2018 despite purportedly
being unemployed since January 2016 also supports the court’s conclusion.
The trial court also specifically found appellant not to be credible on these
issues, and characterized her testimony as “evasive.” In her brief, appellant quotes
various portions of her testimony and contends she was not evasive. However, “[t]he fact
finder’s determination of the veracity of a witness is final. [Citation.] Credibility
determinations thus are subject to extremely deferential review.” (Schmidt v. Superior
Court (2020) 44 Cal.App.5th 570, 582.) Appellant’s challenge to the court’s credibility
determination fails to meet this extremely deferential standard.
The trial court’s finding of unclean hands is also sufficient. We review
such findings for abuse of discretion. (Aguayo v. Amaro (2013) 213 Cal.App.4th 1102,
1109.) Appellant argues the court based its finding on the incorrect statement that
“[appellant] also refused to provide any documents regarding her financial circumstances
in discovery to [respondent].” Appellant points out that the court’s ruling on
respondent’s discovery motion acknowledges that appellant produced some (though not
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all) responsive documents. However, the court’s arguably imprecise language on this
point is not enough to demonstrate an abuse of discretion. Appellant’s failure to produce
significant financial documents in discovery is a sufficient basis for a finding of unclean
hands.
Finally, appellant argues the language of the judgment is ambiguous
because it “may be interpreted as a nonmodifiable order.” However, the trial court’s
language is unambiguous: the permanent spousal support order is expressly made
modifiable “upon a showing of materially changed circumstances and that [appellant] is
no longer coming to the Court with unclean hands.” The order also includes an 18-month
period during which the order is nonmodifiable, but appellant does not appear to
challenge that period, and in any event, that time period has expired.
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Precisely which documents appellant produced or did not produce is not clear from the
record, which, as discussed above, does not contain the underlying discovery motions.
“‘It is the duty of an appellant to provide an adequate record to the court establishing
error. Failure to provide an adequate record on an issue requires that the issue be
resolved against appellant. [Citation.]’” (Hotels Nevada, LLC v. L.A. Pacific Center, Inc.
(2012) 203 Cal.App.4th 336, 348.) Appellant’s failure to provide an adequate record of
the discovery issues makes it impossible for us to determine whether the trial court erred
in concluding her production of documents was inadequate or in drawing inferences from
her failure to produce documents.
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DISPOSITION
The judgment is affirmed. Respondent shall recover his costs on this
appeal.
ZELON, J.*
WE CONCUR:
MOORE, ACTING P. J.
GOETHALS, J.
*Retired Justice of the Court of Appeal, Second Appellate District, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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