Marriage of Steiner and Hosseini

Filed 8/24/07 Marriage of Steiner and Hosseini CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from three orders of the Superior Court of Orange County, Claudia Silbar, Judge. All orders affirmed.

Tara Hosseini, in pro. per., for Appellant.

No appearance for Respondent.

* * *

I. Background

This is the third appeal brought by Tara Hosseini (Hosseini or, where context fits better, the mother) arising out of her marriage to her ex-husband, attorney William Steiner (Steiner or, where context fits better, the father). The first appeal concerned an order requiring monitored visitation between the mother and the couples younger son. We affirmed the order requiring monitored visitation. We reasoned that the trial court acted reasonably in the light of the substantial evidence that the mother had poisoned the relationship between the father and his older son and it was important that the cycle not be repeated with the younger son. (In re Marriage of Steiner (June 30, 2003) G029404 [nonpub. opn.].)

The second appeal was from a new trial motion attacking a judgment of dissolution filed February 28, 2002, based on the (belated) theory that a failure to exchange final declarations of disclosure required the automatic voiding of the final judgment. That issue merited treatment in a published opinion, issued in April 2004, in which we held that absent an identification of some part of the judgment adversely affected by the non-disclosure, non-disclosure is simply not a legitimate basis on which to reverse a judgment. (See In re Marriage of Steiner & Hosseini (2004) 117 Cal.App.4th 519, 528; see also Cal. Const., art. VI,  13 [requirement that courts not reverse judgments for technicalities unless there is a miscarriage of justice].)

As a secondary issue in the second appeal, Tara Hosseini also attacked the judgments award of custody of the couples younger son to the father, on the theory that it was against the best interests of both sons to be apart. While we recognized that the [k]eeping siblings together was indeed a weighty factor in the calculus of custody, we nonetheless upheld the award because the trial judges decision concerning the younger son was reasonable in the fact that the mother had poisoned the relationship between the father and his older son. We reiterated the theme of the first appeal when we said that giving the father custody of the younger son was perhaps the only way to prevent that kind of alienation from occurring with the younger son. (In re Marriage of Steiner & Hosseini, supra, 117 Cal.App.4th at p. 529.)

This third appeal also arises, albeit less directly, from the couples custody disputes. In August 2002 -- about a year before theopinion in first appeal was filed and only about six months after the final judgment in the trial court -- Tara Hosseini filed an OSC (order to show cause) for modification of visitation, modification of support and appointment of an independent evaluator under section 730 of the Evidence Code. In October 2003 -- only a month after the opinion in the first appeal had been filed -- she filed a virtually identical OSC, the first OSC not having been heard in the meantime. The gravamen of both OSCs was that, in fact, the younger son had gone back to living with the mother, she wanted child support for both sons, and she wanted that support retroactive -- apparently back to 2000.

Sometime between the 2002 and 2003 OSCs in the family court, Hosseini obtained the help of the Countys Child Support Services Department, who brought some sort of proceeding -- the record designated by appellant Hosseini is not complete in this regard -- which culminated in a November 2004 order by Commissioner Walter Posey increasing Steiners support payments to about $1,900 a month based on both sons living with their mother.

However, by June 2005, the 2002 and 2003 OSCs had (at least technically) not been disposed of, plus there was another unresolved item -- a February 2005 motion for attorney fees (called a Borson motion by the parties after In re Marriage of Borson (1974) 37 Cal.App.3d 632), by Hosseinis attorney, Henry J. Mejia, who, simultaneous with the filing of the motion, was being substituted out of the case in favor of Hosseini representing herself in pro per.

And so, on June 30, 2005, the trial court conducted a hearing with the clear intention of cleaning up the loose ends represented by the outstanding OSCs and motions. The courts intent was evidenced most strongly by its comment at the end of the hearing, where it expressly said that no issues were being reserved that werent otherwise reserved by the Family Code.

The ultimate outcome of the hearing of June 30, 2005, was an order with the following provisions:

(1) Hosseini would pay fees (about $5,350) incurred by counsel which the court had earlier appointed for the minor.

(2) The court would not require Steiner to reimburse Hosseini for fees incurred by her for an Evidence Code section 730 evaluation because the issue was not before the court.

(3) The court made an order requiring Steiner to pay $3,000 of the some $13,000 in attorney fees Hosseini had incurred to her former attorney, Mejia.

(4) The court denied the retroactivity request because the court did not find an order that reserved the issue of retroactivity of support.

Hosseini subsequently brought motions for new trial and to vacate the order, which were denied. She then brought this appeal from all three orders. Steiner has not filed any respondents brief (perhaps out of the belief, which we will now show to be mistaken, that the appeals are untimely).

II. Appealability

A. Relevant Dates

We must first confront the problem of appealability. Here are the relevant dates and facts:

(1) The hearing was held June 30, 2005.

(2) At the hearing attorney Mejia appeared for Hosseini. He made it clear on the record that he was representing her only for that hearing. The judge made it clear in open court that all notices were to go to Hosseini, and not Mejia.[1]

(3) On August 11, 2005, attorney Mejia -- despite having represented Hosseini only at the June 30, 2005 hearing, submitted to the court a formal findings and order after hearing for the judge to sign. The form stated that Mejia was attorney for Tahereh Hosseini.

(4) On August 11, 2005, Judge Silbar signed the form and it was filed.

(5) There is no indication in the record that the clerk of the court sent Hosseini a copy of the filed findings and order after hearing form.

(6) On August 31, 2005, Steiners counsel sent a copy of the filed findings and order after hearing to Mejia. The proof of service shows that Steiners counsel served Mejia -- and no one but Mejia.

(7) In late October 2005, Hosseini discovered the filed findings and order after hearing form while looking at the court file. She (at least according to what she would later tell the court) had not even been sent a copy by her erstwhile attorney, Mejia.

(8) On November 14 and 16, 2005, respectively, Hosseini, in pro per., filed motions for new trial and to vacate the order.

(9) On December 16, 2005 both the new trial motion and the motion to vacate was denied.

(10) On December 30, 2005, Steiners attorney filed notices of ruling concerning the outcome on both motions. This time copies were sent by Steiners counsel to Hosseini personally.

(11) On February 6, 2006, Hosseini filed a notice of appeal from (a) the August 11 findings and order after hearing; (b) the December 16 denial of the motion for new trial and (c) the December 16 motion to vacate.

B. Sorting It Out

There is absolutely no question that the February 6 notice of appeal would be untimely if Steiners counsel had served Hosseini with the findings and order after hearing. To be sure, the proffering of the document from Mejia as attorney for Hosseini appears to have been misleading to both court and opposing counsel. And Steiners counsel, cognizant of his ethical responsibility not to communicate with a represented party, probably erred on the side of caution in not serving Hosseini, despite the lack of a formal substitution of Mejia back into the case. (More on this theme in our remarks in the disposition part of this opinion.) For the time being, though, it is enough to note (a) the absence of a formal substitution, (b) the absence of any indication that Mejia served his former client with the document, and (c) the trial courts plain, on-the-record clarification that all notices were to go to Hosseini.

And that means that the time for the appeal did not expire until 180 days after the entry of the order (see Cal. Rules of Court, rule 8.104(a)(3)) -- and February 6 is indeed within 180 days of August 11. So the appeal from the actual findings and order is timely.

We have also considered the question of whether Attorney Mejias posing as attorney for Hosseini might mean that the August 11 order is, ipso facto, void. That line of inquiry, however, ends with the recognition that the trial court had the power to prepare its own formal order, and that there is no question that the August 11 order reflects what happened on June 30; indeed, it appears that Mejia just photocopied the substantive pages from a minute order. We therefore do not deal here with the complexities that would arise if the August 11 order had deviated from the August 30 ruling.

As to the appeals from the orders denying the new trial and vacate-the-judgment motions, they are timely too. The deadline to file a new trial motion is either before the entry of judgment, or within 15 days of the clerks mailing of notice of entry of judgment -- which didnt happen -- or service upon the party intending to file the motion of written notice of entry of judgment, and that didnt happen either, given only the service on Mejia and not Hosseini, or 180 after the entry of judgment. And Hosseinis new trial motion was indeed within that deadline, being within 180 days of August 11. (See Code Civ. Proc.,  659.)

The same rules apply to a motion to vacate a judgment (see Code Civ. Proc.,  663a), so, again, that motion was also timely. And there is no question that the appeals from the orders denying the motions are timely, made within 60 days of December 16, 2005.

III. The Merits

We now turn to the merits. The absence of a respondents brief is not treated like a default. It is now settled that in the absence of a respondents brief an appellate court does not assume that the ground urged by appellant for reversing the judgment is meritorious. Rather, the court independently examines the record on the basis of the appellants brief and reverses only if there is prejudicial error. (Korea Exchange Bank v. Yang (1988) 200 Cal.App.3d 1471, 1473.) Moreover, appellate courts may decline to exercise even their discretionary power to proceed on the basis of appellants version of the facts when that statement is biased. (See Stoner v. Williams (1996) 46 Cal.App.4th 986, 990, fn. 1.)

Our review of the record indicates that the trial court committed no error.

A. The Trial Judges

Supposed Pre-Judgment

of the Case

The first issue raised by Hosseinis opening brief is whether the trial judge prejudged the case. We have reviewed the transcript of the hearing and found nothing indicating prejudgment or bias. Our review indicates that the trial judge conducted proceedings with admirable balance, according full respect to both sides.

The best case that Hosseini can make on the prejudgment ground is based on this fact: During the lunch recess on June 30, 2005, Hosseini allegedly became ill. The issue of retroactivity was still on the afternoon agenda, and Attorney Mejia assumed that the trial court would grant a continuance as a matter of course when the hearing resumed in the afternoon. It didnt. Mejia was left to proceed without his client.

But that doesnt show any pre-judgment or bias. Indeed, under the circumstances, it would be quite reasonable for the court to conclude that Hosseini was simply malingering. The court had observed Hosseini all morning and was in a position to see if she looked sick. Counsel proffered no hard proof of illness upon return to court. Things hadnt gone Hosseinis way in the morning session, and, as the court noted, the case had already been unreasonably overlitigated.[2] Any objective observer would have every right to be suspicious that the illness was a just a way to upset the chess board and begin proceedings anew.

Finally, Hosseinis brief presents absolutely nothing from the transcript or court file supporting her assertion of pre-judgment; only the allusion to the denied continuance.

B. Attorney Fee Award

The next issue concerns the fact that the court required Steiner to pay only $3,000 of Attorney Mejias roughly $13,000 bill. Attorney fee awards are, of course, in the discretion of the trial court, and the trial court, pursuant to Family Code section 271, has the power to shape awards based on the degree to which a party furthers or frustrates the policy of the law to encourage settlement. There is nothing we have found in our independent review of the record to indicate that Hosseini ever attempted to minimize the need for litigation. Rather, her (fairly transparent) strategy from the beginning has been to wear down Steiner by continually bringing OSCs and forcing him to incur fees.[3] (Steiner, while an attorney himself, has been represented by counsel in these proceedings). As the trial court said -- after just this one judge (there have been several others) had seen the parties about 20 times: This litigation has gone beyond what is reasonable. It was completely unreasonable, a huge majority of it.

Moreover, about $3,000 of the fee request concerned work by Mejia after he had been formally substituted out of the case, and for the litigation of custody issues, prior appeals, and even the production of documents, things which were not directly at issue in the June 30 proceeding. Any overhanging attorney fees from such matters could have been more economically and practically litigated at the time of those matters.

Under such circumstances, requiring a $3,000 contribution by Steiner on the putative $13,000 tab run up by Hosseini seems more than adequate.

C. Reallocation of Minors

Counsel Fees

At the June 30 hearing, Attorney Mejia acknowledged that Hosseini had already stipulated to pay for the fees for minors counsel. His only argument was that she shouldnt be penalized for that admirable gesture. The courts order is not only justified by that stipulation alone, but also by the history of the custody dispute itself. As illustrated in our prior appeals, the need for minors counsel in the first place was created because one parent had tried to poison the relationship between the other parent and the children, and also because, as noted in our first opinion, Hosseini had made false accusations of child abuse against Steiner. The need for minors counsel stemmed, in short, from a problem of her own making.

D. The Fees for the

Section 730 Evaluation

The trial court rejected Hosseinis request on the section 730 evaluators fees because it was not before the court. That is, Steiner had not received proper notice of the issue in order to prepare his defense. Mejia impliedly acknowledged that fact, making the argument that because the parties had filed income and expense declarations the issue of the fees was always before the court. Absent notice of this specific request, the trial court had no choice but to deny it.

E. Other Issues

Interestingly, Hosseini raises no issue by way of separate heading concerning retroactivity issue, and therefore it has been waived. (Conservatorship of Estate of Hume (2006) 139 Cal.App.4th 393, 395, fn. 2.) That is remarkable, though, because if, for sake of argument, Hosseini did suffer any prejudice from the trial courts denial of a continuance on the afternoon of June 30, it was in regard to that issue. (By the afternoon session, only the retroactivity remained.) Then again, the record shows that Hosseini enlisted the Department of Child Support Services to press the retroactivity issue after this appeal was filed, so it appears she is presently acting on the assumption that the denial in August 11 order is without consequence to her.

The issue she does raise -- alleged fraud by Steiner -- is of course not cognizable in this appeal. In fact, the issue is deja vu all over again from the second appeal, where Hosseini made almost the same argument: Steiner has been lying in the trial court and somehow this appellate court must correct it.

No. Credibility is a matter for the trial courts. We dont do credibility. (See Steiner & Hosseini, supra, 117 Cal.App.4th at p. 530 [Hosseinis arguments concerning the property and financial issues (apart from the disclosure argument) are all based on credibility determinations made by the trial judge.].) All of Hosseinis arguments concerning fraud were matters for the trial court.

IV. Disposition

First, the August 11 order is affirmed. Because it was correct on the merits, the trial court was also correct in denying the motions for new trial and to vacate judgment, and the orders denying them are also affirmed.

Second, enough is enough. The Steiner-Hosseini marriage case is precisely the sort of abusive domestic battle that this court has been saying since at least Bidna v. Rosen (1993) 19 Cal.App.4th 27, 30, requires one judge to learn the file and control the case. And yet despite our admonitions and a statute requiring one judicial officer for all decisions in a domestic case to the greatest extent possible (Fam. Code,  2330.3), this case has seen at least these judges or commissioners: Jack Mandel, Tully Seymour, Daniel T. Brice, Walter Posey, Claudia Silbar, and, during this appeal, Craig Arthur. It is quite foreseeable that had one judge stayed with this case from the beginning (or at least since the retirements of Judges Mandel and Seymour), the overlitigation about which Judge Silbar spoke would have been controlled. We therefore direct the Presiding Judge of the Superior Court to appoint one judge for all future proceedings involving the marriage of Steiner and Hosseini. (Code Civ. Proc.  187; e.g., Franklin Capital Corp. v. Wilson (2007) 148 Cal.App.4th 187, 219 [direct assignment of judge from appellate court to prevent further judge shopping].)

Third, it appears that attorney Mejia deceived the court -- inadvertently, perhaps; we will give him the benefit of the doubt at this point -- when, without substitution back in as counsel, he filed a formal findings and order form as Hosseinis counsel. That act probably kept Steiners counsel from serving Hosseini directly with the filed order, which would have started the appellate clock running earlier. But the fraud was mainly directed at the Judge Silbar, who may have signed an order under the misimpression that it came from an attorney actually representing the losing party. The judge who is appointed by the Presiding Judge of the Superior Court to take over the rest of this case (it may be Judge Silbar) is therefore invited to, sua sponte, schedule a hearing concerning whether Attorney Mejia should be held in contempt, or subjected to other sanction for submitting the document posing as Hosseinis attorney. Since it is possible we do not have all relevant facts in the record, or there may be circumstances justifying his action, we will refrain from sending this opinion to the state bar or otherwise reporting Mejia for misconduct at this time.

Hosseini will of course bear all the costs of this appeal.

SILLS, P. J.

WE CONCUR:

RYLAARSDAM, J.

BEDSWORTH, J.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line Lawyers.

[1] From the transcript:

The court: All right, and after this hearing you are no longer representing her?

Mr. Mejia: Thats correct.

The court: So that any notice or orders, et cetera, would go to her?

Mr. Mejia: That correct, youre honor.

The court: Any proposed order as a result of todays hearing is to Ms. Hosseini?

Mr. Mejia: Yes --

The court: So, the purpose of todays hearing --

Mr. Mejia: Yes, your honor.

The court: All right, its been clarified.

[2] This court has only had occasion to deal with the marriage of Steiner and Hosseini three times. The trial judge here, however, noted on the record that the June 30 hearing was about the 20th time that the court has seen these parties. And we note -- all of that was after the final judgment of dissolution back in 2002.

[3] Illustrative is a proceeding that Hosseini has made part of the record, though, to be technical, it wasnt part of the history of the litigation up to June 30 that the trial judge had experienced. The very last proceeding in the reporters transcript is one from March 23, 2006 -- well after the notice of appeal was filed. It appears to have been brought by or aided by the County Family Support Department. And in that proceeding, Hosseini was still, quite clearly, trying to relitigate the issue of retroactivity and attack the order of August 11, including making references to being ill on June 30.