A Lucky Win

The recent opinion in Marriage of Ashkari & Yaghmai (B269776) contains interesting twist and turns, as well as a discussion of some arcane appellate rules and  well as a reminder familiar family law requirements may slip through the cracks once the trial court pins a “black hat” on one of the litigants, which usually sticks through the appellate process, but not always, as this unpublished opinion demonstrates.

This couple’s union produced one child and several businesses, but was apparently destined for dissolution after “Hossein placed an unauthorized listening device in Ninoosh’s car” and also “blew up Ninoosh’s friend’s car,” leading to felony arson and eavesdropping charges.  After Ninoosh filed for divorce, Hossein “reduced the balances in the business bank accounts and quickly withdrew any deposits made to the accounts,” causing the $9,500 monthly mortgage payment to be unpaid and making it difficult for Ninoosh to meet routine household expenses.  The trial court issued a variety of remedial orders, which Hossein apparently ignored, but also appealed.

Because Hossein had not complied with the orders and had not sought a stay, Ninoosh filed a motion to dismiss the appeal, invoking the “disentitlement doctrine,” apparently also supported by the trial court’s comments concerning Hossein’s willful noncompliance.  For his part, Hossein pleaded penury, asserting an inability to comply.  The Court of Appeal thoroughly discussed the doctrine, which “empowers a reviewing court to dismiss an appeal by a party who refuses to comply with trial court orders.”  The Court emphasized the discretionary doctrine could be applied “even if the noncompliant appellant believes that the trial court’s judgment or order is invalid.”  The court concluded:  “Hossein’s flagrant refusal to abide by the trial court’s orders is precisely the conduct the disentitlement doctrine is intended to address.”

However, the appellate court did not dismiss the appeal because the trial court did not comply with fundamental statutory requirements concerning support calculations, requiring a trial court to actually calculate Family Code section 4055 and 4320 guideline support, even if it subsequently finds good cause to diverge from that calculation.  Here, the court basically calculated guideline support of $10,993 but increased it to $20,000 per month, apparently to allow for the payment of the mortgage out of support.  The problem was the income available for support was $27,835.  Even though counsel had argued Hossein was making more money, there was no actual evidence to support that conclusion.  So, in an unusual circumstance in which the appellant comes to the Court of Appeal wearing the “black hat,” he still succeeded, no doubt based on the strong policy reasons requiring initial calculation of support to be guided by the statute.    A risky strategy though, as another panel may have exercised its discretion and just dismissed the appeal.

The opinion also contains a reminder the Court of Appeal considers the merits of an appeal even the respondent does not file a brief (fn. 4), and a brief discussion of conducting a hearing on remand if the trial judge has been disqualified.  Finally, one justice concurred in the “result only.”  Lots of twists in an unpublished case.