IN RE: Marriage of ELIZABETH and AHMED DMINI.

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Court of Appeal, Second District, California.

IN RE: Marriage of ELIZABETH and AHMED DMINI. ELIZABETH DMINI, Respondent, v. AHMED DMINI, Appellant.

B213405

Decided: February 18, 2010

Ahmed Dmini, in pro. per., for Appellant. No appearance for Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We affirm a judgment on reserved issues entered by the family law court.

FACTS

Elizabeth and Ahmed Dmini married in 1996, became parents to a child in 1997, and separated in 2004.   On January 20, 2005, Elizabeth filed a petition for dissolution of marriage.   On October 31, 2006, the family law court entered a judgment dissolving the marriage, and, on April 10, 2007, the court entered a partial judgment on reserved issues addressing child custody and visitation schedules.

In April 2008, Elizabeth, by her attorney of record, Ronald Gue, and Ahmed, by his attorney of record, Freddie Vega, filed trial briefs on the reserved issues of spousal and child support, and the division of marital assets.   Further submissions were filed over the following months.

On the first day of trial, Friday, September 5, 2008, Ahmed's attorney of record, Freddie Vega, appeared in the family law court and advised the court that Ahmed had told Vega that he (Ahmed) “had a medical emergency.”   When the court asked whether Ahmed had provided any information about the nature of his medical emergency, Vega answered that Ahmed had not.   During the remainder of that day's session, Elizabeth provided information under oath, and a variety of issues were addressed by the court, and the lawyers.   Toward the end of the session, Vega advised the court that he desired to withdraw as Ahmed's attorney of record, and the court advised Vega that, to do so, he needed to file a written motion.

When trial resumed on Monday, September 8, 2008, neither Ahmed nor attorney Vega appeared in the family law court.   Instead, a man who said that he was a “friend of [Ahmed's] good friend” appeared in the court and stated that he had been asked to bring some papers to the courtroom.   When the family law court reviewed the proffered papers, they turned out to be (1) a substitution of attorney form for Ahmed to go forward in the case in pro. per, and (2) various medical-related documents indicating that Ahmed was being treated for back problems.   During the remainder of the session, Elizabeth provided additional information under oath, and the court and her counsel of record, Mr. Gue, addressed the elements of a final judgment.

On September 17, 2008, Ahmed (in pro. per.) filed a “motion for reconsideration” in which he attempted to explain his failure to appear for the scheduled trial dates -- he claimed that he had been in the hospital -- and accused the family law court of being an “Arab hater” who made orders for the purpose of “undermin[ing Ahmed's] happiness in this land․”  At the end of a hearing on October 24, 2008, the family law court denied Ahmed's motion.

On October 28, 2008, the family law court entered a judgment on reserved issues which divided Ahmed's pension with the Department of Water and Power, and directed him to execute an inter-spousal transfer deed on two pieces of unimproved real property in Green Valley, California, and established child and spousal support.   On the same day, the clerk of the family law court mailed notice of entry of judgment to the parties.

On January 7, 2009, Ahmed (in pro. per.) filed a notice of appeal from the family law court's judgment entered on October 28, 2008.

DISCUSSION

I. Timeliness of the Appeal

As noted above, the record on appeal shows that the clerk of the family law court mailed notice of entry of the judgment on reserved issues on October 28, 2008, and that Ahmed -- in pro. per.  -- filed a notice of appeal from the judgment on January 7, 2009, more than 60 days after service of the notice of entry of judgment.   After we examined the record, we invited Ahmed to submit a letter brief addressing the timeliness of the notice of appeal he filed on January 7, 2009.   In response, Ahmed directed us to a notice of appeal in the clerk's transcript which is marked “Received,” with a date shown of November 19, 2008.   In a letter not under penalty of perjury, Ahmed asserts that “the superior court refused to file” his November 2008 notice of appeal because he had been “unable to pay the filing fee.”  (See Cal. Rules of Court, rule 8.100(b)(3) [“The clerk must file the notice of appeal even if the appellant does not present the filing fee․”].)

Although Ahmed's showing leaves us with some questions, we are satisfied that he delivered his November 2008 notice of appeal to a clerk employed somewhere within the superior court system, and, for this reason, we find he should be deemed to have filed a timely notice of appeal, and that we have jurisdiction to address his appeal on its merits.  (See Pacific Southwest Airlines v. Dowty-Rotol, Ltd. (1983) 144 Cal.App.3d 491, 493 [a notice of appeal is deemed “filed” on the date that it is “delivered” to “any” clerk of the superior court, even though it is not filed-stamped on that date because it is delivered to the wrong office for such a filing, and is accompanied by a check made payable to the wrong court];  Rapp v. Golden Eagle Ins. Co. (1994) 24 Cal.App.4th 1167, 1170 [a notice of appeal is deemed “filed” on the date it is delivered to the clerk of the superior court even though it is not filed-stamped on that date because it is accompanied by less than the full amount of the required fees];  but see Montgomery Ward & Co. v. Imperial Casualty & Indemnity Co. (2000) 81 Cal.App.4th 356, 372, fn. 19 [proof of the date a notice of appeal “delivered” to the trial court's mailroom established in the Court of Appeal by the appellant's declaration].)

II. Ahmed Has Not Demonstrated Error

We reject for two reasons Ahmed's contention that the family law court abused its discretion when it denied a continuance of the September 2008 trial dates.   First, Ahmed has not cited us to any competent evidence in the record support of his assertion that he was hospitalized on September 5, 2008, and September 8, 2008.   Second, Ahmed's vague assertion that the family law court's ensuing judgment is “extremely prejudicing” to him does not explain to us how the course, conduct, and outcome of this dissolution case may have been any different, had the court granted a continuance.

For similar reasons, we reject Ahmed's argument that the judgment on reserved issues must be reversed because the family law court did not consider his current ability to pay in fixing spousal and child support.   None of the factual assertions in Ahmed's opening brief regarding his current life circumstances (e.g., he is disabled;  he is only able to secure temporary work;  he has a new wife and new child;  Elizabeth earns more than he does) are supported by references to the record.   In the same vein, Ahmed's argument that the family law court erred by ordering him to pay Elizabeth's attorneys fees in the amount of $22,700, based on the same “no consideration of circumstances” theory, suffers from the same lack of citation to the record.

Ahmed next contends the family law court erred when it awarded “all community property” to Elizabeth.   His argument, such as it is, focuses on the two parcels of land in Green Valley, and we understand Ahmed's argument to present a substantial evidence claim, namely, “[t]hese two vacant lots are paid in full by [him] during his separation.”   If Ahmed is arguing that the family law court erroneously classified his separate property as community property, his argument fails because it is not supported by references to the record.   Ahmed's query:  “Where is the imperative of the law requiring the trier of fact to make a fair distribution of the assets?” does not help us in addressing whether the family law court committed error.

We reject as a non sequitur Ahmed's contention that there is some element of error in the family law court's orders for him to pay child support arrearages “in spite of [his] bringing an order to show cause actions seeking to modify or set aside those orders early on in this litigation.”   Bringing an order to show cause is not relevant;  if the family court wrongly contravened some prior ruling on an order to show cause, we have not been shown such an error by Ahmed's argument.

In summary, Ahmed's showing on appeal simply is not sufficient to satisfy his burden to demonstrate, by argument, authority, and citations to the record, that the lower court's presumptively correct judgment is infected with error.   (See, e.g., Paterno v. State of California (1999) 74 Cal.App.4th 68, 106;  McComber v. Wells (1999) 72 Cal.App.4th 512, 522.)

DISPOSITION

The judgment on reserved issues is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

RUBIN, J. FLIER, J.

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