(Super. Ct. No. CV-FL-07-1845)
The opinion of the court was delivered by: Butz , J.
Marriage of Taghavi and Afkham CA3
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 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 instant dissolution action in November 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 modification of visitation. (In re 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.*fn1
We find Taghavi's arguments either without merit, judicially estopped, or moot.*fn2 We 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 attorney") 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," 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."
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.*fn3 She had obtained sole legal and physical 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."
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.*fn4 It 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."*fn5 It then noted (though its previous order did 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."
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).*fn6 The court modified the judgment to limit the requirement of mental health counseling to a period of one year, and ...