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In Re the Marriage of Akbar Fathali and Rozita Dayani. v. Rozita Dayani

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)


September 7, 2011

IN RE THE MARRIAGE OF AKBAR FATHALI AND ROZITA DAYANI. AKBAR FATHALI, APPELLANT,
v.
ROZITA DAYANI, RESPONDENT.

(Super. Ct. No. FL342006)

The opinion of the court was delivered by: Mauro ,j.

Marriage of Fathali and Dayani 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Akbar Fathali appeals from a family court order on Fathali's motion for modification of child support and other issues, as well as Rozita Dayani's motion to remove restrictions on travel with their child. Fathali contends, among other things, that Dayani was not truthful in her testimony to the family court, and that the facts do not support the family court order. He also challenges a $7,500 rent credit awarded to Dayani, and argues that the family court should have admitted into evidence a certified translated judgment of the Iran Court.

Fathali's appellate brief lacks the required legal analysis and citation to authority, and he fails to establish error. We will affirm the family court order.

BACKGROUND

The parties were married on August 5, 1998. Their only child was born in 2001.*fn1 Fathali filed for dissolution of marriage on August 9, 2005, and an order for custody and visitation was entered on October 1, 2007. The parties subsequently filed various motions to modify custody and visitation.

On March 10, 2010, the family court held a hearing on Fathali's motion for modification of child support and other issues, as well as Dayani's motion to remove restrictions previously placed on the parties' ability to take the child out of the country. The family court took the matters under submission.

On March 16, 2010, the family court issued its order after hearing. The family court denied Fathali's requests for makeup custody time with the minor child, for modification of the pickup and delivery of the child, or to lift the restrictions placed on Fathali's use of the child's passport. However, the family court ordered return of the child's passport and imposed conditions on travel with the child outside the United States. The family court found that Fathali was entitled to "an additional credit of $5,510.00" for payment of a debt, offset by an equitable credit due Dayani of $7,500 for the time Fathali remained in the family residence rent free postjudgment. In addition, the family court ordered Fathali to seek work and ordered Dayani to pay Fathali $671 per month in child support retroactive to February 3, 2010.

DISCUSSION

I As a preliminary procedural matter, Fathali filed a motion to augment the record on appeal on March 4, 2011. Without explanation, the motion sought to include five documents in the record: a "test email" reflecting a date of March 15, 2010; a health insurance hearing notice dated July 16, 2010; a letter from the San Joaquin County Department of Child Support Services dated September 23, 2010; page one of a two-page notice of hearing from the San Joaquin County Department of Child Support Services dated November 30, 2010; and purported e-mail correspondence between plaintiff and defendant dated April 2 and 3, 2010.

Rule 8.155, subdivision (a)(1)(A) of the California Rules of Court provides that, "At any time, on motion of a party or its own motion, the reviewing court may order the record augmented to include: (A) Any document filed or lodged in the case in superior court."

"The reason behind the rules for augmentation of a record is to make the record conform to the truth, so that an appellate court, in passing on the acts of a trial court, can have before it the proceedings upon which the trial court based its action." (Lipka v. Lipka (1963) 60 Cal.2d 472, 480.)

Here, to the extent Fathali seeks to include letters, notices, e-mails or other documentation reflecting dates subsequent to March 16, 2010 (the date the trial court executed and filed its order after hearing), his motion is denied as those documents do not reflect "the proceedings upon which the trial court based its action." (Lipka v. Lipka, supra, 60 Cal.2d at p. 480.) And to the extent Fathali seeks to augment the record with a purported "test email" reflecting a date prior to the execution and filing of the court's order after hearing, his motion is denied as he has failed to make a showing that the document is "material to and will assist in a determination of the appeal on its merits." (Steele v. International Air Race Assn. (1941) 47 Cal.App.2d 61, 63.)

II We next turn to the substance of Fathali's contentions on appeal. He filed an opening brief with the following headings: "Truthfulness of Respondent in Trial Court Testimonies"; "The Facts Do Not Support the Ruling"; "The Ruling Regarding the $7500 Rent Credit"; and "The Transcript of the Certified Translated Judgment of Iran Court." Three of the four headings do not describe a cognizable issue on appeal. (Lady v. Worthingham (1942) 55 Cal.App.2d 396, 397; Richard v. Richard (1954) 123 Cal.App.2d 900, 902, 903.) While one of the four headings -- "The Facts Do Not Support the Ruling" -- appears to describe a cognizable issue on appeal, the argument which follows (that the trial judge who presided over the hearing "was not familiar with our 5-year complex international case" and had to be educated during the hearing regarding past events) does not.

In addition to the lack of appropriate headings, Fathali's brief contains confusing and unintelligible arguments. Fathali makes factual assertions but does not explain their significance, and asserts various errors without identifying the procedural context or citing authority in support of his contention. "An appellate court is not required to examine undeveloped claims, nor to make arguments for parties. [Citation.]" (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106.) We may also disregard contentions not supported by legal or factual analysis. (People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19 [reviewing court may disregard contentions not adequately briefed, e.g., claims perfunctorily asserted without development]; In re Marriage of Nichols (1994) 27 Cal.App.4th 661, 672-673, fn. 3; Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979; Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, 647 [where appellant asserts point without argument or authority, "it is deemed to be without foundation and requires no discussion by the reviewing court"].)

Fathali claims Dayani was not truthful in her testimony and concludes that the court's "ruling has been based on false information not the facts." He quotes portions of the record, sometimes with incorrect citations, arguing those portions establish that Dayani should not be believed. But "'it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citations.]'" (Evje v. City Title Ins. Co. (1953) 120 Cal.App.2d 488, 492.) "[A]n appellate court will not substitute its evaluation of the evidence or its opinion as to the credibility of the witnesses for that of the trial court 'even though to some triers of fact the evidence . . . would have seemed so improbable, impossible and unbelievable that a judgment contrary to that . . . on appeal would have inevitably followed.'" (Ibid.) Testimony may be rejected only when it is inherently improbable or incredible, i.e., "'"unbelievable per se,"' physically impossible or '"wholly unacceptable to reasonable minds."' [Citations.]" (Oldham v. Kizer (1991) 235 Cal.App.3d 1046, 1065.) Even if Fathali's contention had been supported by appropriate argument, analysis and authority, Fathali did not show that Dayani's testimony was inherently improbable or incredible.

Fathali also contends that the facts do not support the family court's ruling. He argues that the family court judge was not familiar with his "complex international case" and had to be educated during the hearing regarding past events. He disputes a number of the family court's specific findings and argues why they are not true, often without citation to the record and always without legal analysis or citation to authority. He cites to arguments he made in a prior appeal. He also cites to the "certified translated judgment of Iran Court" even though the trial court declined to admit that document into evidence. Fathali has not established reversible error regarding these contentions.

In addition, Fathali challenges the trial court's ruling regarding "the $7500 rent credit," again without legal analysis or citation to facts or legal authority. He argues that the family court treated the house as community property but did not require Dayani to pay her share, then asks this court to "look at [the] possibility of quid pro quo and handle this issue in a fair way, either as community or non-community, as long as both parties are treated the same." Fathali also asks that we allow him to present the certified translated judgment of the Iran Court to the trial court. His requests exceed the scope of permissible appellate review.

It is the appellant's burden to affirmatively demonstrate error and to provide a record adequate to support his claims. (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 628, pp. 704-706; Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502.) The fact that Fathali appears without counsel does not relieve him of the obligation. (Dowden v.

Superior Court (1999) 73 Cal.App.4th 126, 129-130.) Fathali has failed to establish error.

DISPOSITION

The family court order is affirmed. Respondent Dayani shall recover her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)

We concur:

NICHOLSON , Acting P.J.

ROBIE ,J.


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