Marriage of Djawadian
Filed 7/18/13 Marriage of Djawadian CA4/1
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
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re the Marriage of SHAHIN
and MOHAMMAD DJAWADIAN.
SHAHIN DJAWADIAN,
Appellant,
v.
MOHAMMAD DJAWADIAN,
Respondent.
D061748
(Super. Ct.
No. D529267)
APPEAL from
an order of the Superior Court
of
County, Susan G. Huguenor, Judge. Reversed.
Yasmine
Djawadian for Appellant.
No
appearance by Respondent.
This appeal
arises from a February 2012 stay order issued in the dissolution action between
appellant Shahin Djawadian (Appellant) and respondent Mohammad Djawadian
(Respondent), on the grounds that "it appears there are proceedings in Iran." At that time, the issues pending before the
support brought by Appellant, and related fees and sanctions motions. (Fam. Code, § 4320 et seq.; all further
statutory references are to the Fam. Code unless noted.) The matter had been continued from a previous
hearing, when the court requested that the parties provide further information
concerning any ongoing marital proceedings in Iran.
In its
order, the family court was apparently applying the principles of Code of Civil
Procedure section 410.30, under which a court has the power either to dismiss
or stay a dissolution petition if a party shows the California
forum is inconvenient for jurisdictional purposes. (Ferreira v. Ferreira (1973) 9 Cal.3d
824, 838 [discussing Code Civ. Proc., § 410.30 and case law regarding
dismissal or stay of an action on grounds of forum non conveniens].) However, there was no pending motion on that
ground by either party, and the matter was apparently raised
On appeal,
Appellant argues the record does not support the stay order, because the types
of proceedings that admittedly were initiated by each party in Iran
were not equivalent to dissolution petitions.
Rather, Appellant sought an intermarital support order and a marriage
portion award, while Respondent sought an order establishing he would have
grounds to file a dissolution petition under Iranian law. Appellant contends the family court abused
its discretion and erroneously failed to consider all of the relevant factors
necessary to impose a stay, because the record was incomplete and tended to
show there were no proceedings of an equivalent nature elsewhere. Although Respondent participated in the
proceedings in the family court, he has not filed a respondent's brief on appeal.
We conclude
the family court did not adequately apply all the relevant legal and
discretionary factors in deciding to issue a stay, in light of Respondent's
previous submission to the jurisdiction of the California
courts on the issues presented by the dissolution petition. The order is legally erroneous and
unsupported by the record. We reverse
the order and return the matter to family court for further proceedings upon
the dissolution issues.
FACTUAL
AND PROCEDURAL BACKGROUND
A. Background; Related Litigation Here and
Abroad
Appellant
and Respondent were married in Iran
in 1977. They later came to the United
States, but by 2001, they were living
apart. Appellant stayed in San
Diego in a house they owned in Del
Mar, and Respondent lives abroad and owns property in Austria
and Iran. They dispute the time of separation. In April 2011, Appellant, represented by
counsel, filed her dissolution petition in San Diego,
stating that she is a resident of San Diego
and the separation occurred in 2010.
In June
2011, Respondent, represented by counsel, filed a response stating that the
separation dates back to 2000. His
response requested that the family court take judicial notice of a
Court, in which he previously sued Appellant for fraud (refinancing the Del
Mar house). (Djawadian v. Djawadian, Super. Ct. San Diego County, 2010, No.
37-2010-00105463-CU-FR-CTL; the related civil action.) His response requested that the family court
rule only as to property owned by the parties within California,
"due to the absence of the marital domicile in California,
and the pending divorce action in Iran
between the parties."
In August
2011, Appellant filed her order to show cause why spousal support, injunctive
orders for possession of property (California
and Austria),
and/or attorney fees should not be awarded.
She supplied her declaration and lodged numerous exhibits supporting her
contention that Respondent does not believe in divorce, and he used the related
civil action against her to discourage or retaliate against her for the filing
of any dissolution action. She supplied
a copy of the demurrer ruling in the related civil action. Appellant claimed Respondent gave her powers
of attorney in 1999. After they
separated, he was using their community property for his own benefit, and she
had to beg her sister for money. She
requested that a residential property they owned in Austria be rented out.
Appellant
opposed any dispute resolution in Iran, arguing it was not a suitable forum for
dissolution and support, due to its discrimination against women and her
husband's ability to restrict her from leaving the country in case she ever
went back. Appellant made only brief
references to the proceedings conducted in Iran and did not explain them (e.g.,
Respondent's publication in Iran of a notice that she is missing). The hearing was continued to December 2011.
In November
2011, Respondent filed a responsive declaration stating that Appellant had
previously commenced a civil and a spousal support case in Iran, and judicial
determinations had been made.
Specifically, in 2008 in Iran, she obtained "Mehrieh," a dowry
or marriage portion award of approximately $40,000 (the marriage portion). In 2009 in Iran, she obtained
"Nafagheh," a spousal support or maintenance award of approximately
$120,000-$140,000, available to a still married person (the maintenance award).
Additionally,
Respondent declared that in 2009, he had published in an Iranian newspaper a
notice designated "Adam Tamkin," under Iranian law, requesting that
the wife return to the marriage and providing that if she does not, the spousal
support obligation will stop. Additionally,
Respondent successfully sued Appellant in Iran claiming she had forged his
signature in a property transfer matter, assisted by her sister. It is not clear whether this litigation in
Iran has any relationship to the related civil action then pending in San Diego
(apparently stayed by that trial court in late 2011, pending litigation in this
family law matter). Also in November
2011, Respondent lodged numerous documents of the Iranian transactions and
litigation.
In addition
to Appellant's pending request for spousal support, she filed two motions in
family court for payment of expert, investigative, and attorney fees, as well
as a motion for sanctions under section 271 (nondisclosure after discovery
requests, allegedly justifying sanctions).
At the
December 2011 hearing on the request for spousal support, the court inquired
whether Appellant's pursuit in Iran of any property or support rights she may
have (marriage portion or support) was the same as a divorce proceeding. Counsel for Appellant responded that the
Iranian actions were not filings for divorce, but instead were maintenance
during the time of the marriage. Counsel
for Respondent stated that under her understanding of Iranian law, once
Respondent had advertised for the wife to return to the marriage, and she did
not, then it "automatically turns into a divorce action." According to the parties, the judge in the
related civil action suggested that this dissolution action be filed.
Before
issuing the December 2011 ruling, the court noted there was a substantial
difference in the facts alleged by each party, and there was a lack of
information as to Iranian law, as to how the two situations were going to mesh
together. The court requested the
parties to provide some kind of expertise or legal advice as to what happened,
what issues were litigated, what was still pending, and what the status was of
any judgments in Iran. The matter was
continued, including the discovery issues and the case management
conference. The court and the parties
discussed the status of the related civil case, which had recently been stayed
due to concerns of that judge that dissolution issues might be raised in it,
and it was not clear at that time which matters might appropriately be put over
and whether any motions relating to joinder of banks, etc. would be filed.
In addition
to the pending motions on support and fees, Appellant brought a motion to
compel discovery and deposition by Respondent, to be heard later in February
regarding requests for information about the property they allegedly owned in
Austria and elsewhere.
B. February Support Hearing and Stay Order
In January
2012, Respondent filed responsive declarations to the various motions and
lodged further documentation in support of his position that no such orders
were warranted on the merits. Specifically, he argued his attorney had only
recently received the discovery requests and had not had a chance to reply, and
that Appellant had not produced documents as requested, specifically the
documents from the litigation in Iran.
Extensive
reply declarations and lodgments were provided by Appellant, arguing that
Respondent's attorney was misleadingly referring to "Islamic gifts and
inter-marital remedies" as spousal support, whereas they were
"completely and utterly unrelated to divorce." Appellant now admitted that the separation
had occurred in 2000 or 2001, but argued that the civil remedies she had sought
and obtained in Iran (by proxy due to her inability to travel freely there)
were consistent with an ongoing marriage.
Appellant
lodged numerous documents in support of her motion for spousal support,
including a letter from the Iranian embassy "signed by the Headman,"
defining the marriage portion and spousal maintenance terms (Mehrieh and
Nafagheh), as translated from the Iranian material into English. According to Iranian civil law, "payment
of the alimony and marriage portion is not related to the termination of
marriage. The marriage portion is a debt
of the husband to the wife, and he must pay the wife on her demand, unless
otherwise has been agreed by them.
Moreover, the alimony is on the husband, and in case he fails to pay it,
the wife has the legal right to refer to the competent judicial authorities in
the country, in person or by proxy, and make the husband pay his debts to the wife."
Respondent
filed surreply supplemental declarations and lodgments, including an attached
letter from the attorney in Iran who had represented Respondent there, Shahram
Manafi (his "Iranian Attorney"), who explained that Appellant had
already obtained relief from the Iranian courts in the form of the marriage
portion and the spousal support/ maintenance orders, including liens on
property owned by Respondent in Iran. He
accused Appellant of lying, fraud, and forgery in her personal and financial
dealings with Respondent.
Additionally,
Respondent's Iranian Attorney stated that in Iran, he litigated the requirement
that the wife obey her husband before a family court and Appellant was
"sentenced" on August 11, 2009.
His attorney next stated that in 2011, he had litigated a "divorce
demand" in the family court in Iran, and he opined: "Passing verdict of divorce by foreign
courts cannot legally work because of following reasons: the reasons leading to divorce has been given
to the court, the legal rights of family including dowry [marriage portion] and
alimony is paid and is acceptable in the court of Tehran, [Appellant] is
Iranian and according to the Iranian civil code, article 6 based on that
Iranian laws about personal properties such as marriage, divorce, etc. are
applicable for all Iranians even though residents of foreign countries, and
finally special conditions of executing divorce in Iranian laws and
courts. Thus, the court of Iran is
qualified to pass the divorce verdict."
He requested that "the superior court of USA investigate the fraud
complaint of forgery done by" Appellant.
This letter is not sworn as a declaration.
In
Respondent's own declaration, he stated that he was continuing to make efforts
to provide his tax reports and sources of income information to Appellant. He argued "the issue of spousal support
should be litigated in Iran since that Court already has jurisdiction over this
issue. However, if the Court chooses to proceed, I request that
[Appellant] provide documentation regarding her income." (Italics added.) He said he thought the publication of the
Adam Tamkin gave him grounds for divorce in Iran.
On the day
of the hearing, Appellant filed a motion to strike the supplemental declaration
by Respondent's Iranian Attorney and its attached exhibit, on the ground that
it was not signed under penalty of perjury and was biased in favor of
Respondent. Appellant argued that the
documents provided from Iran only showed that Respondent might have grounds for
divorce, but no formal divorce filings had ensued.
At a
hearing on February 3, 2012, the family court questioned counsel for Appellant
about why more information about the law of Iran had not been submitted, as the
court previously requested, even though there had been no requirement for
expert evidence on that topic. The court
noted that Respondent had been the only one to provide any information about
what had occurred, and "it looked like a divorce petition based on the wife's
refusal to submit to her husband and refusal to return to the marriage and live
where the husband has selected."
The motion to strike Respondent's Iranian Attorney's supplemental
"declaration" was denied and Respondent's evidence was left as it had
been presented. The court issued its
stay order applicable to "all further proceedings in this matter at this
time, as it appears there are proceedings in Iran."
Appellant
filed a motion for reconsideration. On
March 13, 2012, the motion was denied for lack of any new information that was
not available at the time of the last hearing.
Appellant sought relief in mandamus in this court, but it was denied May
11, 2012. (Djawadian v. Superior Court (May 11, 2012, D061898).)
Appellant
filed her notice of appeal and requested oral argument. No respondent's brief was filed, although an
extension was granted for that purpose.
DISCUSSION
Appellant
argues the family court abused its discretion in staying all proceedings in
this matter, by finding "it appears there are proceedings in
Iran." At the time the order was
made, Appellant had several requests for relief pending before the family
court, including spousal support, attorney fees and costs, sanctions, and
discovery requests. Several months
previously, Respondent, represented by counsel, had filed a response to the
dissolution petition, and had subsequently vigorously opposed all of the above
requests on the merits. There was also a
related civil action pending locally between the parties, involving some of the
same property and similar fraud/forgery allegations, although the trial court
in that civil matter had already imposed a stay.
Based on
the state of this record, we need not outline the applicable standards
concerning the motions that were actually placed before the family court, such
as the request for spousal support.
name="_ftnref3" title="">[3] Instead, it appears that the court sua sponte
raised the issue of forum non conveniens and requested a showing about it,
based on representations the parties had made in the moving and opposing papers
about previous proceedings and orders made in Iran (marriage portion,
maintenance award, and publication).
There was no formal motion for a stay, although the court apparently
believed that Respondent was effectively seeking such relief, or that
regardless of the positions of the parties, a stay would be appropriate. Reconsideration was denied on the same basis.
To address
the validity of the stay order, we set forth necessary background about the
doctrine of forum non conveniens and review the record, to determine if there
is adequate support for the family court's underlying legal and discretionary
findings.
I
A.
Non Conveniens: Procedure and Practice
"Forum
non conveniens is an equitable doctrine invoking the discretionary power of a
court to decline to exercise the jurisdiction it has over a transitory cause of
action when it believes that the action may be more appropriately and justly
tried elsewhere." (Stangvik v.
Shiley (1991) 54 Cal.3d
744, 751 (Stangvik).) The doctrine of forum non conveniens is
codified in Code of Civil Procedure section 410.30, stating:
"(a) When a court upon motion of a party or its
own motion finds that in the interest of substantial justice an action should
be heard in a forum outside this state, the court shall stay or dismiss the
action in whole or in part on any conditions that may be just."
"When
a plaintiff is a resident of a forum state, the plaintiff's choice of forum in
that state is afforded substantial weight.
[Citation.] A nonresident
plaintiff's choice of forum is also entitled to less deference." (Chong
v. Superior Court (1997) 58 Cal.App.4th 1032, 1038 (Chong).)
A court may
make a discretionary choice to refrain from exercising its jurisdiction to hear
a case, if the case may be more appropriately tried elsewhere. (Stangvik,
supra, 54 Cal.3d at p. 751.) The
moving party bears the burden of showing that the case should be tried
elsewhere. (Ibid.)
In
determining whether to grant a motion based on forum non conveniens, (1) the
court makes a threshold determination whether the alternate forum is a suitable
place for trial, and only if it qualifies, (2) the court then balances the
private interests of the litigants and the interests of the public in retaining
the action in California. (
The first
part of the forum non conveniens inquiry, determining whether an alternate
forum is "suitable," is a question of law and nondiscretionary. (Shiley
Inc. v. Superior Court (1992) 4 Cal.App.4th 126, 131.) "A forum is suitable if there is
jurisdiction and no statute of limitations bar to hearing the case on the
merits. [Citation.] '[A] forum is suitable where an action
"can be brought," although not necessarily won.' " (Chong,
supra, 58 Cal.App.4th at pp.
1036-1037.) This concept is further
explained:
"In 'rare circumstances' a forum may not be
suitable even when the defendant is amenable to process and there is no
procedural bar to hearing the issues on the merits. [Citations.]
This exception has been applied in cases where the proposed alternative
forum is in a foreign country that lacks an independent judiciary. [Citation.]
For example, in Rasoulzadeh v.
Associated Press (S.D.N.Y. 1983) 574 F.Supp. 854, 861, the court held that
an alternative forum in Iran was not available since the courts there were
administered by Iranian mullahs and the plaintiffs were likely to be shot if
they returned to Iran." (
There is as
yet no question of any recognition of a foreign judgment, since this case
involves the stay of a California action in order to enable the parties to
initiate or pursue various forms of litigation in Iran. However, the principles for allowing
enforcement of a foreign judgment are instructive here. Courts are generally inclined to recognize
foreign judgments " 'unless a foreign country's judgments are the
result of outrageous departures from our notions of "civilized
jurisprudence." ' "
(Bird v. Glacier Electric
Cooperative, Inc. (9th Cir. 2001) 255 F.3d 1136, 1142.) In selecting a forum, the courts have stated
that basic due process does not require adherence to any particular set of
procedures. (Ibid.) If it can be shown
that a party will receive a meaningful opportunity to be heard before the
foreign tribunal, recognition of a foreign judgment is allowed. (See, e.g., British Midland Airways, Ltd. v. International Travel, Inc. (9th
Cir. 1974) 497 F.2d 869, 871; Pariente v.
Scott Meredith Literary Agency, Inc. (S.D.N.Y. 1991) 771 F.Supp. 609,
616-617.)
However,
"It has long been the law of the United States that a foreign judgment
cannot be enforced if it was obtained in a manner that did not accord with the
basics of due process. [Citation.] As the Restatement of the Foreign Relations
Law of the United States succinctly puts it:
'A court in the United States may not recognize a judgment of a court of
a foreign state if: (a) the judgment was
rendered under a judicial system that does not provide impartial tribunals or
procedures compatible with due process of law.' "
(Bank Melli Iran v.
Pahlavi (9th Cir. 1995) 58 F.3d 1406, 1410.) In that case, the court declined to recognize
an Iranian foreign judgment under circumstances where the defendant "could
not expect fair treatment from the courts of Iran, could not personally appear
before those courts, could not obtain proper legal representation in Iran, and
could not even obtain local witnesses on her behalf." (Id.
at p. 1413.)
B. Principles Governing a Court's Exercise of
Discretion
Whether a
trial court will stay a proceeding under the doctrine of forum non conveniens
is a discretionary call, and on appeal, its ruling will not be disturbed unless
it represents a clear abuse of discretion.
(In re Marriage of Nurie
(2009) 176 Cal.App.4th 478, 513.)
" ' "A trial court's exercise of discretion will be
upheld if it is based on a 'reasoned judgment' and complies with the '. . .
legal principles and policies appropriate to the particular matter at
issue.' [Citations.]" ' " (Ibid.) Any findings implied to support an order must
be supported by the record. (
Cal.App.3d 643, 646-647.)
A court may
not exercise its discretion arbitrarily, but must do so along "legal
lines." (In re Marriage of Cheriton
(2001) 92 Cal.App.4th 269, 304.) When a
court fails to consider all of the relevant statutory factors, that may be
evaluated as showing an abuse of discretion.
(In re Marriage of Smith
(1990) 225 Cal.App.3d 469, 479-480.) In
evaluating an exercise of discretion, we may consider only the record that was
before the court as of the time of the ruling.
(Reese v. Wal-Mart Stores, Inc.
(1999) 73 Cal.App.4th 1225, 1237.)
name="_ftnref4" title="">[4]
By
comparison, an abuse of discretion in a court's modification of a spousal
support order occurs only when the court did not have substantial evidence on
which to base the relevant determination (e.g., material change in
circumstances). (In re Marriage of Dietz (2009)
176 Cal.App.4th 387, 398.) An abuse of
discretion occurs where " ' "the court has exceeded the
bounds of reason or it can fairly be said that no judge would reasonably make
the same order under the same circumstances." ' " (In re
Marriage of Bower (2002) 96 Cal.App.4th 893, 899.)
II
Generally,
a court should decline jurisdiction for reason of an inconvenient forum
"only when there is concurrent jurisdiction elsewhere." (In re
Marriage of Nurie, supra, 176
Cal.App.4th 478, 514.) There was no
motion for a stay pending before the family court, and not surprisingly, the
legal issues were inadequately presented for any required threshold
determinations to be made. On de novo
review of this portion of the analysis, we explain why this record is
incomplete and does not support the stay order.
There is an
important distinction between the dismissal of an action on grounds of forum
non conveniens, and the stay of an action on that ground. (Ferreira v. Ferreira,
jurisdiction over the parties and the cause; . . . it can compel
the foreign [party] to cooperate in bringing about a fair and speedy hearing in
the foreign forum; it can resume proceedings if the foreign action is
unreasonably delayed or fails to reach a resolution on the merits. [Citation.]
In short, the staying court can protect . . . the interests of the
California resident pending the final decision of the foreign court." (Id. at p. 841.)
Contrary to
the above principles, the family court did not have an adequate factual and
legal basis to carry out the correct analysis, which would have included a
finding on a required threshold determination, i.e., whether Iran constituted a
suitable alternative forum. Case
authority teaches us that this was a nondiscretionary ruling of law that is
subject to de novo review on appeal. (Chong,
supra, 58 Cal.App.4th at pp. 1036-1037; Stangvik, supra, 54
Cal.3d at p. 752, fn. 3.) Appellant made
a creditable showing that Iran was not a "suitable" forum for
dissolution and support, even though she had resorted there (by proxy due to her
inability to travel freely there) to seek and obtain other relief (marriage
portion and maintenance award). As far
as can be determined from the record, the proceedings in Iran were consistent
with separated but not yet divorcing spouses.
Next, as a
California resident, Appellant was entitled to file a dissolution petition
here, at least as far as the record shows regarding her valid status as a
resident petitioner. Normally, a
plaintiff's residency in a forum state allows the plaintiff's choice of forum
there to be afforded substantial weight.
(Chong, supra, 58 Cal.App.4th 1032, 1038.)
Further,
Respondent already consented to jurisdiction in California, by filing a
response that requested, among other things, that California property issues be
adjudicated. Respondent also appeared
here by participating on the merits in discovery and motion practice, up to and
including the two hearings here on spousal support issues. To any meaningful extent, the evidence in the
record pertained to support issues, not to forum non conveniens criteria.
Later,
Respondent claimed other proceedings had already preempted the entire matter of
spousal support. According to his local
attorney, her "understanding" of Iranian law was that if the wife did
not return to the marriage on request, it "automatically turns into a
divorce action." His Iranian
Attorney stated in an unsworn letter that after the 2009 publication and
"sentence" of Appellant in absentia in Iran, he had litigated a
"divorce demand" in 2011 in the family court in Iran, but it remains
unclear if those proceedings are the functional equivalent of this dissolution
petition, or if they can be entitled to recognition for their fundamental due
process protections. The uncertainties
in the evidence concerning the nature of the Iranian remedies already pursued
and/or their binding effect, and the lack of a sworn declaration from
Respondent's Iranian Attorney, failed to justify any finding that Iran had
already asserted jurisdiction over the marital status and support issues
concerning a California resident and property.
Instead,
the family court attempted to defer to allegedly ongoing and identical
proceedings in Iran, and it assumed, without adequate proof, that they appeared
to satisfy the necessary criteria. There
was no basis for the family court to exercise its discretion in the balancing
of the respective forum-related interests, nor can it be determined whether it
actually attempted to do so. (
of discretion must be based on " 'reasoned judgment' " in
compliance with appropriate legal principles and policies].) This stay order cannot be characterized as a
discretionary determination that is eligible for substantial deference on
appeal, because the family court did not have available to it nor analyze the
necessary criteria for a forum non conveniens analysis, either legal or
evidentiary. (See Stangvik, supra,
54 Cal.3d at p. 751.)
We
emphasize that the issue is not yet squarely presented whether for dissolution
of marriage purposes, evidence can be provided that courts in Iran do not or
cannot provide due process of law. We do
not decide that issue on its merits.
(See Chong,
Bank Melli Iran v. Pahlavi,
currently support any determination that Iran is a suitable alternate forum,
and accordingly, the trial court erred as a matter of law in issuing a stay on
the basis that Iran would be a more appropriate or convenient forum. The trial court's order reflects a failure to
make a complete and sufficient legal analysis as required for any proper
exercise of discretion under these circumstances.
We express
no opinion concerning the status or relationship of the related civil action to
this action, except to state that the family court may be required to address,
as appropriate, any coordination or joinder issues, to ensure that all
legitimately raised issues can somehow be addressed.
DISPOSITION
The stay
order is reversed with directions to the family court to allow any appropriate
further proceedings on the pending dissolution issues. Both parties shall bear their own costs on
appeal.
HUFFMAN, Acting P. J.
WE CONCUR:
NARES, J.
AARON, J.
certain banking institutions, apparently in the related civil case, but that
case was stayed. The record does not
disclose the status of the related civil case, and no such information is necessary
to resolve the stay issues before us in this appeal.
name="_ftn2" title="">[2] Contrary to the California Rules of Court, rule 8.1115,
Appellant sought judicial notice of an unpublished case finding that Iran was
not an adequate alternative forum for a probate dispute.
