Filed 6/25/13 Marriage of Mesbah 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 SOUZAN and SHAWN
MESBAH.

SOUZAN MESBAH,
                                                                       G046361
     Respondent,
                                                                       (Super. Ct. No. 01D007391)
         v.
                                                                       OPINION
SHAWN MESBAH,

     Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Robert
H. Gallivan, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
                   Shawn Mesbah, in pro. per., for Appellant.
                   Farah F. Azar for Respondent.
                                          *                  *                  *
                  This is a child and spousal support arrearages case. Substantial evidence
supports the trial court’s determination appellant Shawn Mesbah owes his ex-wife
Souzan Mesbah1 $107,315 in unpaid support, so we affirm the court’s order.2
                                                 BACKGROUND
                  We emphasize at the outset that the record provided this court by appellant
Shawn is incomplete. In particular, the clerk’s transcript, which usually contains the
documents in the file which bore on the decision of the trial court being appealed,
contains almost nothing. It does not include, for example, the marital settlement
agreement which was the underlying basis for the order to show cause (OSC) brought by
Souzan in this case, nor does it contain the OSC itself. In fact, the only item of substance
it does contain is the minute order, entered August 3, 2011, from which Shawn has
appealed.3 We therefore take judicial notice of two documents from the trial court’s file


         1
                    At trial Souzan Mesbah went by the name of Souzan Azar. In this opinion we will refer to the
parties by their first names, in part because that is now the custom in family law appellate jurisprudence, and in part
to avoid confusion with Souzan’s trial (and also appellate) counsel, who is also named Azar. (In fact, at one point
in the proceedings, Souzan’s own trial attorney called Souzan “Ms. Mesbah” instead of “Ms. Azar” because she was
“so used to calling” Souzan Ms. Mesbah.) (In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1513, fn. 2.)
          2
                    About $40,000 of the $107,315 is interest. The disparity between the legal interest rate of 10
percent and general market interest rates (which have been much lower over the course of the last decade) creates its
own potential for “harsh,” and arguably inequitable results, a point noted by this court in In re Marriage of Cordero
(2002) 95 Cal.App.4th 653, 658 [“in the area of spousal support collection, the disparity creates the potential for
harsh inequity”].) But even given the “harsh” effects of 10 percent legal interest, it is still the law and it is up to the
Legislature to make any changes. One thing the high rate of legal interest does do, of course, is create a big
incentive for payor ex-spouses (like Shawn) to stay on top of their support obligations. (See id. at p. 658 [“After all,
the law wants to encourage judgment debtors to satisfy judgments . . . .”].)
          3
                    The notice of appeal doesn’t even specify that order. Rather, the notice of appeal only specifies a
“judgment after court trial” without a date. Normally, any such “judgment” would be the one ending the marriage of
the parties, in this case the one entered in 2002, and we would be forced to summarily dismiss Shawn’s appeal as
taken from the wrong decision of the trial court. Rules of liberal construction of notices of appeal cannot save
challenges to orders and judgments not specified in the notice of appeal. (See Conservatorship of Edde (2009) 173
Cal.App.4th 883, 889; Morton v. Wagner (2007) 156 Cal.App.4th 963, 967.)
                    However – to the great credit of the clerks involved – a deputy appellate clerk at the superior court
noticed that Shawn’s notice of appeal was incomplete (no date was specified) and asked Shawn for the information.
Shawn telephoned her later from out of the country to tell her it was the minute order of August 30, 2011, which he
meant to appeal from. That clerk then relayed the information to a clerk of this court.
                    There is, strictly speaking, no minute order dated August 30, 2011 in the superior court file at all.
But the numerical transposition is obvious: 30 should be 03. Therefore, under the rule of liberal construction of
notices of appeal, we deem the appeal to be from the August 3, 2011 minute order, which does indeed contain the
order requiring Shawn to pay $107,315. We note in this regard that Souzan has not been prejudiced in any way.
Her brief shows she always understood the appeal to be from that minute order.


                                                            2
(the couple’s marital settlement agreement filed in 2002, and Souzan’s motion to
determine arrearages filed in 2010), plus two documents from our own file (the civil case
information statement filed by Shawn which contains the “Xspouse” printout used by the
trial court to calculate the arrearages, plus our clerk’s docket entries) to begin to make
sense of Shawn’s appeal. That said, in broad overview, the facts are as follows:
              Souzan and Shawn were divorced in May 2002. Their marital settlement
agreement provided Shawn would pay Souzan $2,000 a month, consisting of $646 times
two for each of the couple’s two children (Kourosh, then about 11 and Shahrzad, then
about 9), plus another $708 a month in spousal support to Souzan. Shawn got the family
house in Mission Viejo as his separate property.
              But it was not a conventional divorce. By the beginning of 2003 Souzan
had moved back in to the Mission Viejo house that was now Shawn’s separate property.
              The parties told different stories to the trial court as to the reason for
Souzan’s moving back. According to Souzan, the move back was in hope of a possible
reconciliation. According to Shawn, it was because Souzan and the kids “begged” him to
come back. (Souzan had been paying $1,700 a month to rent elsewhere.) In any event,
there is no dispute that Souzan and the two children did, in fact, return to the house
around January 2003.
              Nor is there any dispute that, in the period January 2003 through August
2008, Shawn was out of the country “most” of the time. Souzan testified that Shawn was
in Iran “most of the time,” while Shawn himself acknowledged he was out of the United
States about 10 months a year in the 2003-2008.
              At the beginning of the move-back period, Shawn and Souzan signed a
written document, entitled “promissory note,” the nature of which is one of the key points
in Shawn’s appeal. The occasion was a loan of money from Souzan to Shawn, hence the
“promissory note” denomination. The document consists of two sentences of type-
written material, followed by handwritten material following the second sentence.

                                               3
                 The typewritten material is: “I, Shawn Mesbah have received $10,000
from Souzan Azar in February of 2002 and would repay the principle amount plus simple
interest with the rate of 5% [¶] Additionally, it is agreed that Souzan Azar will pay
$1,000 per month for rent.”
                 There is a handwritten interlineation changing the year 2002 to 2003. This
interlineation tallies with the idea that Souzan moved back into the house in January
2003.
                 But there is another handwritten interlineation of more substance. After the
typed words “for rent,” there is this handwritten material: “& food, etc. and live with the
kids in the house in lieu of spousal & child support & I pay for all expenses.” (Italics
added.)
                 There was no dispute before the trial court that the document was signed by
both Shawn and Souzan, but there was a big dispute as to whether Souzan signed off on
the handwritten “in lieu of spousal & child support” language.
                 According to Souzan, the “in lieu of” language was an “alteration,” added
after she signed the document, to which she never agreed. According to Shawn, Souzan
signed it with the added, handwritten language. However, even Shawn acknowledged
that no less than three different colors of red ink appear on the document.
                 Whatever the provenance of the handwritten material on the document, it is
safe to say that Shawn generally ceased writing checks to Souzan expressly called
spousal and child support from January 2003 through July 2008.4 Rather, Shawn felt that
it was enough he was allowing Souzan and the children to reside in his separate property
home during that period. As his appellant’s brief makes clear, Shawn believed that by
affording Souzan and the children a house with a fair rental value of $3,500 a month, plus
making his personal checking account available to Souzan to pay expenses, he was more

        4
                  In his opening brief Shawn does not identify any payments for which he did not receive credit in
the court’s eventual $107,135 order.


                                                         4
than fulfilling his spousal and child support obligations of $2,000 a month. We note also
that Souzan’s spousal support terminated at the end of 2006, so a fair rental value of
$3,500 would easily exceed the remaining child support of $1,292 a month. Further, it is
also true that, when Souzan and the children moved out around August 2008, the house
was actually rented out for $3,500 a month.
               For her part, Souzan ceased paying the $1,000 rent when Shawn ceased
paying formal support. The ultimate $107,135 figure determined by the trial court does
include $1,000 a month offsets to Shawn for the rent.
               About two years after the August move-out, Souzan brought an OSC to
determine arrearages based on Shawn’s nonpayment of the ordered $2,000 (after 2006,
$1,292) monetary support for the period 2002 through 2008. The trial court, after a
mistrial in January 2011 because of too-short time estimates, eventually completed a
hearing on Souzan’s OSC in early August 2011. That hearing resulted in the order
Shawn pay $107,315 which is the subject of this appeal.
                                      DISCUSSION
               Preliminarily, we must remind Shawn that while he has the right to
represent himself on appeal, he is held to the same standards as an attorney. (Rappleyea
v. Campbell (1994) 8 Cal.4th 975, 985 [giving self-represented parties “exceptional
treatment” is unfair to other parties]; Kobayashi v. Superior Court (2009) 175
Cal.App.4th 536, 543 [“Pro. per. litigants are held to the same standards as attorneys.”].)
Those standards include the requirement appellate briefs present statements of facts with
record references. (See Cal. Rules of Court, rule 8.204(a)(1)(C); see also Eisenberg, et
al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2012) ¶ 9:37, pp. 9-
13 to 9-14.)
               Shawn, however, has utterly failed to comply with the record reference
requirement. By doing so, he has, in effect, conferred on this court the discretionary
power to ignore his arguments and, were we to exercise that power, we could end this

                                              5
opinion right here. Shawn would lose without consideration of any of his arguments.
(See Haley v. Casa Del Rey Homeowners Ass’n. (2007) 153 Cal.App.4th 863, 871
[“where a party provides a brief ‘without argument, citation of authority or record
references establishing that the points were made below,’ we may “‘treat the points as
waived, or meritless, and pass them without further consideration’”].) However, we
exercise our discretion to consider the merits of Shawn’s appeal, bearing in mind that
many middle income people are simply unable to afford attorneys, and are often thrown
back on their own devices. (See Cordero, supra, 95 Cal.App.4th at p. 659.)
              With one big exception. And on that exception we will hold Shawn strictly
to the rule that facts be supported with record references. The exception involves his first
argument, namely that Souzan received “many cash payments and benefits as evidenced
by checks she had received.” Shawn’s point is that the trial court erred in not having
credited those “many cash payments” against his mounting support arrearage.
              Shawn may have a valid point here as to at least a few checks, but his
mishandling of his own appeal precludes our consideration of them. Souzan filed her
respondent’s brief on October 18, 2012. About 13 days after that, on October 31, Shawn
filed a motion to augment the record and produce additional evidence on appeal. This
court granted the augmentation request on December 20, 2012, and deemed the
documents attached to the motion “part of the record on appeal,” because Souzan did not
file any opposition to the motion. However, the order granting the augmentation request
said nothing about the request to take “additional evidence.” Two of the exhibits which
Shawn included in his motion to augment, exhibits “J” and “K,” appear to show that
Shawn indeed paid, via checks written on his account (signed either by Shawn himself or
by Souzan, who had access to his checkbook), at least some sums of money that appear to
constitute substantive child support. For example, exhibit “J” references a check directly
given to the couple’s son Kourosh in November 2005, another check for “Kid School” of



                                             6
$200 made out in September 2006, and a $125 check for Kourosh’s karate lessons in May
2004. Exhibit “K” likewise references checks for “Kids School,” and karate lessons.5
                 To the degree that Shawn’s motion to augment, filed after Souzan’s
respondent’s brief, shows payments from his checking account for which he arguably
should have received credit for child or spousal support, we will not take those payments
into account. To do so would be utterly unfair to Souzan. Shawn did not refer to any of
the exhibits in his augmentation motion in his appellant’s opening brief. Souzan has
therefore had no chance at all to address any arguments based on those exhibits. (See,
e.g., Smith v. Adventist Health System/West (2010) 182 Cal.App.4th 729, 748-749
[declining to address issue that could have been raised earlier because so addressing the
issue on appeal “would encourage ‘sandbagging’”].)
                 Besides the unfairness to Souzan, considering those payments would also
be inconsistent with our role as an appellate court. Generally speaking, we review the
record as it was before the trial court, we do not look at evidence anew. (See In re Zeth
S. (2003) 31 Cal.4th 396, 405 [“It has long been the general rule and understanding that
‘an appeal reviews the correctness of a judgment as of the time of its rendition, upon a
record of matters which were before the trial court for its consideration.’”].) The
possibility of taking additional evidence on appeal under section 909 of the Code of Civil
Procedure is limited necessarily to postjudgment events such as the case becoming moot
(e.g., Millbrae Assn. for Residential Survival v. City of Millbrae (1968) 262 Cal.App.2d
222, 232 [“this court has power to take such additional evidence . . . and should dismiss
an appeal when such evidence shows that events occurring after judgment have rendered
the appeal moot”]) or to affirm a judgment, not reverse it. (Eisenberg, et al., Cal. Practice


         5
                   We should note here, for sake of completeness though, that while a few checks here and there do
seem to be genuine child support, many of the items listed in exhibits “J” and “K” are those which would be
naturally be paid by a landlord, such as mortgage payments. Other items might be paid by a landlord, such as utility
bills.



                                                         7
Guide: Civil Appeals and Writs, supra, [¶] 5:169, p. 5-63 [“As a basic principle of
appellate review, the proffered new evidence must enable the appellate court to affirm the
judgment, not lead to reversal . . . .”].) The power to take additional evidence is not a
power to “usurp” the trial court’s role as fact-finder. (Ibid.)
                 Here, Shawn’s exhibits “J” and “K” do not appear to have been submitted
to the trial court. Neither corresponds to the exhibits “J” and “K” which he offered at
trial.6 The bottom line is that as far as his first argument is concerned, Shawn is stuck
with what he wrote in his appellant’s opening brief and the record supporting that brief,
which does not include exhibits “J” and “K.”
                 And in his appellant’s opening brief, Shawn makes no attempt to identify
any evidence of the “cash” payments he made, or make any argument how those checks
necessarily would constitute either child or spousal support for which he should have
received credit. He has thus failed to carry his burden of showing some error or abuse of
discretion on the trial court’s part. (See Kurinij v. Hanna & Morton (1997) 55
Cal.App.4th 853, 865 [an appellant must “present argument and authorities on each point
to which error is asserted, or else the issue is waived”].)
                 We now turn to his other arguments, which are not colored by the problem
of new evidence on appeal. Shawn’s second argument is that there is no substantial
evidence that Souzan ever actually demanded any support payments. The implication of
this argument is that a demand was necessary before any support obligation would
accrue.
                 On this one, Shawn is both in factual and legal error. Factually, there was
substantial evidence that Souzan did demand her support payments. She testified so, and
the testimony can be found on page 247 of the reporter’s transcript. Such testimony is
enough. (See In re Marriage of Howell (2011) 195 Cal.App.4th 1062, 1079, quoting

        6
                 Shawn’s exhibit “J” at trial was some sort of communication from Souzan to him. Shawn’s
exhibit “K” was a “demand for money” from Souzan.)


                                                      8
Fariba v. Dealer Services Corp. (2009) 178 Cal.App.4th 156, 170-171 [“‘Credibility is
an issue of fact for the trier of fact to resolve . . ., and the testimony of a single witness,
even a party, is sufficient to provide substantial evidence to support a factual finding’”].)
               And legally, Souzan wasn’t under any obligation to demand support
payments. The judgment entered back in 2002, incorporating the marital settlement
agreement, provided for monthly support payments of $2,000, and the law treats each
monthly support payment as its own individual judgment when each installment comes
due. (Cordero, supra, 95 Cal.App.4th at pp. 657-658.) Souzan’s supposed silence could
not estop her from being able to collect even spousal support, much less child support.
(See Fam. Code, § 4502 [judgment “for child, family, or spousal support . . . including all
lawful interest and penalties computed thereon, is enforceable until paid in full”];
Cordero, supra, 95 Cal.App.4th at pp. 659-665 [in opinion broadly sympathetic to payor
spouse in spousal support case, reluctantly concluding laches defense was not available];
Jackson v. Jackson (1975) 51 Cal.App.3d 363, 366 [“it is true . . . that accrued arrearages
are treated like a judgment for money”]; In re Marriage of Dancy (2000) 82
Cal.App.4th 1142, 1166 (conc. opn. of Ramirez, P.J.) [“The noncustodial parent has an
obligation to pay child support regardless of whether the custodial parent actively seeks
it.”].)
               We will treat Shawn’s fourth argument out of order because it is a variation
of his second argument. He claims Souzan’s silence plus claiming the children as
dependents on her tax returns somehow establishes that Souzan agreed to the “in lieu of”
language in the promissory note.
               This argument fails for the same reason the last one did: There was
substantial evidence Souzan wasn’t silent, even though she had every right to be. And
the supportive point Shawn attempts to make about Souzan’s tax returns is a non
sequitur. Shawn asserts that by claiming the children as dependents on her tax returns,
Souzan somehow agreed to the “in lieu of” language. But there is no logical connection.

                                                9
Either way, one would expect Souzan to have claimed the children as dependents:
Absent a waiver, under federal law, it is the custodial parent who receives the
dependency deduction. (See Int.Rev. Code, § 152; see generally Monterey County v.
Cornejo (1991) 53 Cal.3d 1271, 1278 [observing federal tax law placed “the dependency
exemption in the custodial parent unless a waiver is executed”].)
                  Which brings us back to Shawn’s third argument. That is the core of his
grievance with the trial court’s order. He argues that because the house was rented out
for $3,500 a month when Souzan and the children vacated the premises, she and the
children necessarily received a support benefit far in excess of the $2,000 (after Souzan’s
spousal support terminated at the end of 2006, $1,292 a month). Here, Shawn’s argument
runs afoul of the evidence at the hearing that Souzan never signed the handwritten portion
of the promissory note, thus she never agreed to accept the “in lieu of” language. Given
that evidence, the trial court could reasonably assume the parties had agreed to a rental
value of $1,000 a month, so that Shawn still had some support money to pay.
                  We may observe in this connection that Shawn’s own explanation as to why
three different kinds of red ink should appear on the document is, to be charitable, hard to
follow. And, the trial judge, as trier of fact, expressly found Shawn not to be credible.7
On appeal, therefore, we have no choice but to accept the version of events told by
Souzan: Shawn simply altered the document after she signed it. (In re Margarita D.
(1999) 72 Cal.App.4th 1288, 1295-1296 [“The court, which had the opportunity to
observe the witnesses testify, is better suited than a reviewing court to make such
determinations of fact.”].)




         7
                    Toward the end of the hearing, the judge turned to Shawn and said: “The court frankly, Mr.
Mesbah, has found that your testimony not to be credible. And the court feels that the note, your assertions that the
petitioner agreed to the language that’s been written in about food, et cetera, and lived with the kids in the house in
lieu of support, I find that not credible tentatively. Maybe counsel’s argument can convince me that I’m missing
something.” As the subsequent order showed, counsel didn’t change the trial judge’s mind.


                                                          10
              Shawn’s fifth and final argument is a variation on his second (no demand)
and fourth (silence) arguments. Basically, he says that Souzan’s “adherence” to the “in
lieu of” language shows she necessarily must have agreed to it. This argument fails for
the same reasons the second and fourth arguments do: Souzan didn’t adhere to the “in
lieu of” language. She testified she actually demanded support. And, further, as we have
shown, she didn’t even have to do that in order for the support obligation to continue to
mount up. We also observe that given the uncontroverted testimony Shawn was out of
the country “most” of the time for the period in question, the case is even stronger than
Jackson, supra, 51 Cal.App.3d 363, a case where a payor parent was given the possibility
of receiving credit against a mounting child support obligation. The key point about
Jackson is that, despite the fact the child support payments were to go from father to
mother, the daughter went to live with her father “shortly” after the divorce. It was the
father who was the de facto custodial parent. In this case, by contrast, the children
weren’t really living with Shawn, but with Souzan. Shawn was gone, after all, about 10
months of the year.
              For her part, in her respondent’s brief, Souzan asks this court to award
sanctions against Shawn for having filed a frivolous appeal. We do not grant her request
because a separate motion filed in conformity with California Rules of Court, rule 8.276,
is necessary. Likewise, we deny Souzan’s request for the imposition of a bond, also
made in her respondent’s brief. It is not our role as a court to give her legal advice as to
how to go about trying to enforce the trial court’s order.




                                             11
                                   DISPOSITION
            The order of August 3, 2011, is affirmed. Souzan will recover her costs on
appeal.




                                              BEDSWORTH, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



MOORE, J.




                                         12
