IN RE: Marriage of ABLA ELGAMMAL and MOHAMED ABOUTALEB. (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

Mohamed Aboutaleb (Aboutaleb) appeals from the judgment of dissolution filed on December 7, 2007, awarding child custody, child support, spousal support and attorney's fees to his former spouse, Abla Elgammal (Elgammal).   We affirm.

FACTUAL AND PROCEDURAL BACKGROUND1

The parties were married on August 18, 1991 and separated on March 19, 2005.   They are the parents of one minor child, Sandra, born in 1997.

Shortly after the parties separated, on March 30, 2005, Aboutaleb filed a request for a domestic violence prevention order, seeking an order that Elgammal stay away from him and Sandra.   He also sought custody of Sandra.

Elgammal filed the instant petition for dissolution of marriage on April 20, 2005.   She sought physical custody of Sandra, with joint legal custody, plus child and spousal support.

The parties' papers in these proceedings contained a litany of allegations of misconduct against one another and against other family members.   These included allegations of sexual and emotional abuse, domestic violence, theft, fraud and other wrongdoing.

The dissolution trial took place on August 30 and 31, 2007, and November 15, 2007.   Pursuant to the judgment of dissolution, Elgammal was given sole legal and physical custody of Sandra, subject to professionally monitored visitation for Aboutaleb.   Aboutaleb was ordered to pay child support in the amount of $916 per month and spousal support in the amount of $955 per month.   In addition, Aboutaleb was ordered to pay sanctions in the sum of $15,000 for attorney's fees to Elgammal.

In its supporting statement of decision, the trial court made 177 factual findings, explaining the bases for the judgment.

DISCUSSION

A. Rules Governing Appellate Review

It is well established that, in addressing an appeal, we begin with the presumption that a judgment or order of the trial court is correct.  (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133;  Fleishman v. Superior Court (2002) 102 Cal.App.4th 350, 357.)   The appellant “has the burden of showing reversible error by an adequate record.”  (Ballard v. Uribe (1986) 41 Cal.3d 564, 574;  Robbins v. Los Angeles Unified School Dist. (1992) 3 Cal.App.4th 313, 318.)   Meeting this burden requires citations to the record to direct the court to the pertinent evidence or other matters in the record which demonstrate reversible error.  (Cal. Rules of Court, rule 8.204(a)(1);  Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115;  Culbertson v. R.D. Werner Co., Inc. (1987) 190 Cal.App.3d 704, 710.)   It also requires citation to relevant authority and argument.  (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546.)   It is not our responsibility to comb the appellate record for facts, or to conduct legal research in search of authority, to support the contentions on appeal.  (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768;  see also Annod Corp. v. Hamilton & Samuels (2002) 100 Cal.App.4th 1286, 1301.)

Elgammal filed a motion to dismiss the appeal based upon Aboutaleb's failure to make arguments supported by cited authority.   Aboutaleb's briefs contain lengthy and rambling discussions of what transpired in this case, in many instances unsupported by any citation to the record.   While Aboutaleb voices many serious complaints regarding the conduct of the proceedings below, including a conspiracy involving Elgammal, her children, the social worker, the judicial officers, the sheriff's department and attorneys involved in the case, the complaints are not adequately supported by the record.   We denied the motion to dismiss, but Aboutaleb's failure to follow the rules on appeal inevitably affects our review of the judgment.

We acknowledge a self-represented litigant's understanding of the rules on appeal are, as a practical matter, more limited than an experienced appellate attorney's.   Whenever possible, we do not strictly apply technical rules of procedure in a manner that deprives litigants of a hearing.   However, “mere self-representation is not a ground for exceptionally lenient treatment.”   (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.)

While Aboutaleb is complaining about the trial court's rulings on child custody, child support, spousal support, and attorney's fees, there is nothing in his limited citation to the record that supports his claims that the trial court erred in its rulings.   We are bound by the findings of the trial court, and the findings in the extensive statement of decision support the judgment.   (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.)   As discussed more fully below, we find nothing in the record that would warrant a reversal of the decision.

B. Child Custody

A court has broad discretion in making a child custody determination and may award custody to either parent based on “the best interest of the child.”   (Fam.Code, § 3040, subd. (b).)  Under the statutory scheme governing child custody and visitation determinations, the overarching concern is the best interest of the child.  (Montenegro v. Diaz (2001) 26 Cal.4th 249, 256.)

Pursuant to a minute order entered April 20, 2005, Judge Juhas limited Elgammal to daytime visits from 9:00 a.m. until 7:00 p.m. on Saturdays and Sundays based on Aboutaleb's allegations that Elgammal's sons had been molesting Sandra.   A detention report stated that when Sandra was initially interviewed by a social worker, she indicated that she had been molested and also that there was inappropriate physical conduct between her mother and her half-brothers.   During a forensic interview, Sandra denied all the statements she had previously made to the social worker, stating that her father had told her what to say.   The trial court found that the statements Aboutaleb made to the social worker about Elgammal's alleged misconduct with her two sons were materially different than the statements he made to the court under oath.

On October 26, 2005, Judge Juhas held a hearing at which evaluator Debra Dubin submitted a report.   Dubin stated that Sandra had credibly recounted that her father had physically abused her mother and had attempted to induce Sandra to state falsely that she had been sexually molested by Elgammal's son.   During the hearing, Judge Juhas received a copy of a minute order from the dependency court relating to Sandra.   The order released Sandra to Elgammal and provided for monitored visitation to Aboutaleb.   Judge Juhas also found that Aboutaleb was not exercising his monitored visitation with Sandra.

Counsel was appointed on April 4, 2007 to represent Sandra's interests.   Sandra's counsel filed her report on August 2, 2007 after visiting the parties' homes and conducting interviews with the parties and Sandra.   Counsel concluded that Sandra, a very bright and capable 10-year-old, was content living with her mother but had some regret about not having a relationship with her father.   Counsel also concluded that the father was the main obstacle to having a relationship with his daughter, due in part to his refusal to engage in counseling and his insistence that Sandra back up his allegations against her mother.   The recommendation of Sandra's counsel was for monitored visitation, conditioned on Aboutaleb's successfully completing parenting classes.

When the matter was called for trial on November 15, 2007, Elgammal and her counsel appeared.   Aboutaleb failed to appear and the trial proceeded in his absence.   The trial court noted that Aboutaleb had previously feigned a medical emergency when the matter came on for trial on August 30, 2007, and Aboutaleb had continued his dilatory tactics on November 13, 2007, filing a purported declaration to continue trial that falsely stated that Aboutaleb needed further medical evaluation before being able to proceed to trial.   The trial court found that Aboutaleb had improperly absented himself from the jurisdiction of the court and proceeded with trial in his absence.

Thereafter, the trial court found credible evidence that Aboutaleb had committed acts of domestic violence against Elgammal and Sandra.   The court further found that Aboutaleb had falsely accused Elgammal of inappropriate sexual relations with her sons and falsely accused the same sons of molesting Sandra.   Additionally, Aboutaleb had fabricated and attempted to publish photographs of Elgammal in an effort to humiliate and embarrass her and to coerce her into abandoning her rights in the litigation.   Aboutaleb had also attempted to suborn perjury and had interfered with evidence in the case by removing documents from the court files.

Aboutaleb contends, with no citation to the record or authority, that the trial court erred in awarding legal and physical custody of Sandra to Elgammal.   He has failed to meet his burden on appeal of demonstrating error.   (Guthrey v. State of California, supra, 63 Cal.App.4th at p. 1115;  Mansell v. Board of Administration, supra, 30 Cal.App.4th at pp. 545-546.)   Based on the record, we find no abuse of discretion in awarding legal and physical custody of Sandra to Elgammal, with monitored visitation for Aboutaleb.  (Fam.Code, § 3040, subd. (b);  Montenegro v. Diaz, supra, 26 Cal.4th at p. 256.)

C. Child and Spousal Support

Aboutaleb initially contends that the child support order violates the Eighth Amendment to the United States Constitution, which provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”   The Eighth Amendment is applicable to criminal matters and has no relevance to an order to pay child support.  (Ingraham v. Wright (1977) 430 U.S. 651, 666-668 [97 S.Ct. 1401, 51 L.Ed.2d 711].)

By statute, the court is granted broad discretion in applying the principles expressed in the statewide uniform guidelines for child support.   In applying these principles, the court's main concern must be the child's best interests.  (In re Marriage of Wittgrove (2004) 120 Cal.App.4th 1317, 1326.)   On review of a child support order, we do not substitute our judgment for that of the trial court but determine only if any judge reasonably could have made such an order.  (In re Marriage of Schlafly (2007) 149 Cal.App.4th 747, 753.)   We determine “only ‘whether the court's factual determinations are supported by substantial evidence and whether the court acted reasonably in exercising its discretion.’ ”  (In re Marriage of Berger (2009) 170 Cal.App.4th 1070, 1079.)

To meet the substantial evidence standard, the court's factual determination must be based on “evidence of ponderable legal significance, evidence that is reasonable, credible and of solid value.”  (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.)  “The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order.”  (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)   Aboutaleb has failed to meet this burden.

By a minute order entered October 26, 2005, Judge Juhas ordered Aboutaleb to pay child support of $898 per month and spousal support of $955 per month.   The support award was predicated upon a Dissomaster that imputed to Aboutaleb income in the amount of his admitted monthly expenses of $5,165 per month.   The minute order expressly stated, “Court runs a Dissomaster, which is placed in the Court file.   Copies are given to the parties in open court.”   The trial court noted in its statement of decision that this Dissomaster is now missing from the Court's file.

The statement of decision sets forth in detail the justification for setting child support at $916 per month and spousal support at $955 per month.   The trial court explained that on October 26, 2005, Aboutaleb filed an income and expense declaration that stated he had completed 5 years of college, had obtained a degree in engineering, and was a licensed engineer in Egypt.   Aboutaleb, at the time, represented that he had no income and had monthly expenses of $5,165, and none of the expenses were paid by others.   From the time that the initial support was set, Aboutaleb filed several requests for modification.   At a hearing held on February 6, 2007, the court found no change of circumstances warranting a modification of the support order.

The trial court also observed that Aboutaleb admitted that when he came from Egypt in July 2001, he brought funds totaling over $1,200,000.   Aboutaleb alleged that Elgammal and her children stole over $800,000 from him in March 2005.   The record is devoid of documentation to support Aboutaleb's allegation of theft.   By minute order entered January 2, 2007, the court denied Aboutaleb's request for a reduction in child support finding that Aboutaleb had, at all times since his marriage, supported his family from existing assets and not from earnings.   In addition to the $1,200,000 Aboutaleb brought from Egypt, he admitted that he had run a multifaceted construction and import-export company in Egypt that had 146 full-time and thousands of temporary employees.

Aboutaleb also admitted that he deposited $138,000 “in my children's trust account” on April 1, 2005.   The records subpoenaed indicated that the $138,000 Aboutaleb admittedly deposited into his children's trust account on April 1, 2005 was money separate and apart from insurance company proceeds that Aboutaleb received as a result of a fire to the community residence and its contents.

During the trial, Elgammal's son, Haysem Hosny, testified that he had lived with the parties in the United States.   During the time Hosny lived here, Aboutaleb did contracting jobs that were within his expertise as an electrical engineer, and Aboutaleb was paid for these jobs.   This testimony contradicted Aboutaleb's statements throughout the proceedings that he had not worked since coming to America.   In addition, on or about October 27, 2006, Aboutaleb wrote a letter to the trial court on stationery that stated he was a “consultant engineer.”

The court specifically found in considering the factors relating to the award of spousal support that the parties enjoyed a middle class standard of living while living in the United States.   The court also found that while Elgammal had marketable skills that would generally allow her to obtain meaningful employment, including an AA degree in accounting, her English skills would need to be greatly improved before she would be able to obtain meaningful employment.   Elgammal was not employed during the marriage and stayed home and cared for the parties' child, as well as each party's children from their prior marriages, including a developmentally disabled child by a prior marriage.

The court found that Aboutaleb had misappropriated and concealed from Elgammal her share of community assets and had engaged in a continuing effort and conspiracy to deprive her of her share of the community assets.   The trial court found that Elgammal had a greater need for support than she would have had if Aboutaleb had been honest and forthright with Elgammal and the court.   Elgammal also had a greater need for support because she was caring for not only the parties' daughter but also for Aboutaleb's developmentally disabled daughter from a prior marriage.

In setting the support, the trial court also found that Aboutaleb had considerable assets both in the United States and in Egypt;  at a hearing on February 6, 2007, the trial court made a finding that Aboutaleb had assets in Egypt worth between a “couple million” and ten million dollars.   He had both the earning capacity and sufficient assets, independent of his earning capacity, which would enable him to pay to Elgammal the support ordered.   In setting child support, “a court may properly consider not only actual income, but earning capacity where a parent becomes unemployed or underemployed, provided doing so is consistent with the best interests of the children.”   (Mendoza v. Ramos (2010) 182 Cal.App.4th 680, 684-685, citing Fam.Code, § 4058, subd. (b).)

In sum, there is substantial evidence in the record supporting the award of child and spousal support.   The trial court acted reasonably exercising its discretion in setting the awards.  (In re Marriage of Berger, supra, 170 Cal.App.4th at p. 1079.)   Aboutaleb has failed to meet his burden on appeal of demonstrating error in the trial court's support awards.  (Guthrey v. State of California, supra, 63 Cal.App.4th at p. 1115;  Mansell v. Board of Administration, supra, 30 Cal.App.4th at pp. 545-546.)

D. Attorney's Fees as Sanctions

Aboutaleb contends that the award of attorney's fees in the amount of $15,000 was “without any legal merits” since he “didn't have an attorney due to he couldn't afford any.”   We disagree.

In support of the award, the trial court found that Aboutaleb “intentionally and willfully filed Income & Expense Declarations and other Declarations with this Court that falsely state that he is destitute and has a negative net worth, when in fact [Aboutaleb] has a very substantial net worth, and which falsely state that he has never earned income in the United States, when [Aboutaleb] has in fact earned income in the United States, all in furtherance of [Aboutaleb's] effort to conceal assets from [Elgammal] and this Court and of his effort to avoid his obligation to pay Child and Spousal Support.”   The court found Aboutaleb “illegally removed from the Court's file the Dissomaster used by Judge Juhas in support of his award of Child and Spousal Support.”   In addition, Aboutaleb “engaged in a clear pattern of parental alienation and willfully violated this Court's Orders in an effort to interfere with and thwart [Elgammal's] relationship with and custody of the Minor Child.”   Aboutaleb “willfully fabricated evidence”;  “willfully attempted to suborn perjury;  specifically by threatening the minor child, Sandra, with physical injury and death if she did not make false allegations against [Elgammal] and her sons of inappropriate sexual conduct”;  and “willfully made false representations to the Court in an effort to delay and obstruct the processes of the Court.”

Aboutaleb is correct that Family Code sections 2030 and 2032 allow the trial court to award attorney's fees and costs based upon several factors, including the parties' respective needs, income and ability to pay.   It is clear that the fee award in question was not predicated upon Family Code sections 2030 and 2032, however.   The judgment of dissolution specifically states that “as a sanction against [Aboutaleb] for his misconduct, this Court Orders [Aboutaleb] to pay [Elgammal] the sum of $15,000 against the attorney's fees and expenses incurred by [Elgammal].”

Pursuant to Family Code section 271, subdivision (a), the trial court is authorized to award attorney's fees and costs as a sanction to “the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties․”  Family Code section 271, subdivision (b), provides that an award of sanctions under this section shall be imposed only after notice and an opportunity to be heard.

On April 5, 2007, Elgammal's counsel filed and served a declaration in support of Elgammal's request for attorney's fees and costs.²  This specifically stated that Elgammal was seeking an award of attorney's fees and costs under Family Code section 271 based upon Aboutaleb's actions in this case.   This satisfied the notice requirement, and Aboutaleb was given the opportunity to be heard at the three-day hearing on the petition for dissolution.   Thus, we find no error in awarding attorney's fees as sanctions under Family Code section 271.

E. Violation of Judicial Ethics

Aboutaleb contends that the trial court violated the California Code of Judicial Ethics, in part, by making a public comment about a pending proceeding.³  Even if the trial court violated the California Code of Judicial Ethics, Aboutaleb has failed to show how this mandates a reversal of the judgment.

F. The Parties' Egyptian Divorce

Aboutaleb claims that he divorced Elgammal “in a customary way” in Egypt “according to the Law and Sharia.”   This claim was apparently made in an effort to challenge the validity of the current proceedings and the orders made.   Aboutaleb has cited no legal authority for his claim.   Aboutaleb also fails to mention that he submitted to the jurisdiction of the Superior Court by filing a response to the dissolution petition filed by Elgammal.   We see no merit to his claim.

DISPOSITION

The judgment is affirmed.   Elgammal is awarded her costs on appeal.

We concur:

FOOTNOTES

FN1. Additional facts will be presented where relevant to a discussion of the issues..  FN1. Additional facts will be presented where relevant to a discussion of the issues.

FN2. Although Aboutaleb did not include this declaration in the designated record on appeal, it is contained in the Superior Court file, of which we take judicial notice.  (Evid.Code, § 452, subd. (d).).  FN2. Although Aboutaleb did not include this declaration in the designated record on appeal, it is contained in the Superior Court file, of which we take judicial notice.  (Evid.Code, § 452, subd. (d).)

FN3. The trial court took judicial notice of the documents of record in a probate proceeding, where Aboutaleb's son was executor of Aboutaleb's brother's estate..  FN3. The trial court took judicial notice of the documents of record in a probate proceeding, where Aboutaleb's son was executor of Aboutaleb's brother's estate.

WOODS, Acting P. J. ZELON, J.