Marriage of Dolkhani and Izadpanahi CA2/7 ( 2023 )

Filed 1/20/23 Marriage of Dolkhani and Izadpanahi CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re Marriage of NAHID H. B314257
DOLKHANI and
KOUROSH IZADPANAHI. (Los Angeles County
Super. Ct. No.
18CHFL02540)
NAHID H. DOLKHANI,
Respondent.
v.
KOUROSH IZADPANAHI,
Appellant,
APPEAL from a judgment of the Superior Court of
Los Angeles County, Sarah J. Heidel, Judge. Affirmed.
Kourosh Izadpanahi, in pro. per., for Appellant.
Ferguson Case Orr Paterson and Wendy C. Lascher for
Respondent.
_________________
In 2017 Kourosh Izadpanahi and Nahid Dolkhani resolved
outstanding issues in their long-pending family law case, which
Izadpanahi had initiated in 2010, through a stipulated judgment.
Before the stipulated judgment was entered as a family court
judgment, Izadpanahi and Dolkhani agreed to try to reconcile;
the action was dismissed without prejudice. The attempted
reconciliation was short-lived. In 2018 Dolkhani filed a new
dissolution petition. She also filed a request for order to enforce
the terms of the parties’ stipulated judgment. The family court
ruled the stipulated judgment was a binding contract and
thereafter entered a judgment of dissolution incorporating its
terms. Izadpanahi has appealed, arguing the stipulated
judgment did not survive dismissal of the first action and could
not be enforced. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Initial Family Law Proceedings, Stipulated
Judgment and Attempt at Reconciliation
Izadpanahi and Dolkhani married on September 23, 2005.
They had one child, born several weeks before Izadpanahi, on
December 9, 2010, filed a petition seeking an order for joint
physical and legal custody of the infant.1 On May 5, 2014
Dolkhani filed a response to the petition and request for
dissolution of marriage, citing December 1, 2013 as the parties’
date of separation.
In May 2017 Izadpanahi and Dolkhani agreed to a
stipulated judgment, stating in paragraph 5.04 their intent to
1 We grant Izadpanahi’s request for judicial notice of
documents from the parties’ initial family law case. (Evid. Code,
§§ 452, subd. (d)(1), 459, subd. (a).)
2
“make a complete and final settlement of their rights and
obligations pertaining to support; identification, characterization
and confirmation of the parties’ respective community and
separate property interest; custodial issues relating to the minor
children; and any matters over which a Court of competent
jurisdiction shall retain jurisdiction.” Paragraph 20.10 of the
stipulated judgment provided, “The agreement of the parties, as
evidenced by this Stipulated Judgment, shall be effective
immediately upon execution . . . by Petitioner and Respondent”
and “may only be modified by written agreement executed by
both parties or by a Court of competent jurisdiction.”
Contemplating a possible effort to reconcile, the stipulated
judgment also provided in paragraph 20.03, if there was “a
reconciliation of the parties hereto after the effective date of this
Stipulated Judgment, this Stipulated Judgment shall
nevertheless continue in full force and effect as an Agreement of
the parties until it is modified or abrogated by another written
instrument to that effect signed by both parties.”
The stipulated judgment was submitted to the family court.
Before it was entered as a judgment by the court, however, the
parties agreed to attempt to reconcile and asked for the
stipulated judgment’s return without the court’s signature. The
court returned the stipulated judgment as requested.2 The case
was dismissed without prejudice on November 23, 2017.
2 A minute order dated November 16, 2017 states, “On
November 8, 2017, Counsel for Respondent informed the clerk a
proposed judgment had been submitted to the court which he
would like returned. The judgment was still awaiting signature
and it is returned. Parties have agreed to dismiss the case and a
dismissal will be filed forthwith.”
3
2. The New Dissolution Petition and Enforcement of the
Stipulated Judgment
On December 28, 2018 Dolkhani filed a new petition for
dissolution of the marriage. The following day Dolkhani filed a
request for order seeking entry of judgment “in accordance with
written agreement of the parties” or, alternatively, to “bifurcate
the issue of the validity and enforceability of the 2017 Stipulated
Judgment.”3 Izadpanahi filed a responsive declaration,
contending “the stipulated judgment presented to the court . . .
was attached to, prepared for and intended solely for a prior case
which was dismissed by the parties by mutual agreement and
upon reconciliation. On its face, the document makes several
references to the prior case. By operation of the law, the
document is void.”
On July 7, 2021 the court held a short cause trial on the
issue whether judgment could be entered based on the parties’
2017 stipulated judgment. Izadpanahi and Dolkhani were each
represented by counsel, who submitted trial briefs. Following
argument, the family court ruled the stipulated judgment entered
before the dismissal was still binding. Explaining its ruling, the
court stated the parties had entered a marital settlement
agreement, which they “called a stipulated judgment.” “If the
parties had intended a written abrogation of the reconciliation
provision or [of] the parties’ agreement that was memorialized in
the stipulated judgment,” the court continued, “then they needed
to say that. They needed to do more than just dismiss the case
without any additional language.” Having failed to do so, the
3 Dolkhani attempted to revise the stipulated judgment to
include the new case number and to reflect Dolkhani’s status as
petitioner. Izadpanahi did not agree to the revisions.
4
court ruled, the parties’ agreement was intended to be binding,
and “the marital elements of that agreement are enforceable.”
The court directed Dolkhani to submit a proposed judgment
to Izadpanahi for review and thereafter to submit it to the court
for entry. The judgment of dissolution incorporating the terms of
the stipulated judgment was entered on September 30, 2021.4
DISCUSSION
Izadpanahi presents several related arguments to support
his contention the family court erred in ruling the 2017
stipulated judgment was, in effect, a marital settlement
agreement that survived dismissal of the initial family law
proceedings. None has merit.
1. The 2017 Stipulated Judgment Was Not Merged into a
Family Court Judgment
Izadpanahi initially contends the parties’ agreement, when
submitted to the court for filing in the form of a stipulated
judgment, “merged with and was incorporated in the judgment of
dissolution.” This argument misapprehends the merger doctrine.
Izadpanahi is correct that, if the parties’ settlement
agreement is incorporated into a judgment of dissolution, the
“separation agreement is superseded by the decree, and the
obligations imposed are not those imposed by contract, but are
those imposed by decree, and enforceable as such.” (In re
4 Izadpanahi filed his notice of appeal on July 7, 2021
following the court’s order finding the stipulated judgment
enforceable. We treat the premature notice of appeal as timely
filed. (See Cal. Rules of Court, rule 8.104(d)(2) [“[t]he reviewing
court may treat a notice of appeal filed after the superior court
has announced its intended ruling, but before it has rendered
judgment, as filed immediately after entry of judgment”].)
5
Marriage of Corona (2009) 172 Cal.App.4th 1205, 1220; accord,
Hough v. Hough (1945) 26 Cal.2d 605, 609; see also Flynn v.
Flynn (1954) 42 Cal.2d 55, 58 [“[m]erger is the substitution of
rights and duties under the judgment or the decree for those
under the agreement or cause of action sued upon”].) But simply
filing a stipulated judgment signed by the parties, as was done
here, does not result in a merger.5 Rather, merger occurs when
the stipulated judgment becomes a judgment of the family
court—that is, when it is signed and filed by the court. (See Cal.
Rules of Court, rule 5.411(a) [“[a] stipulated judgment . . . may be
submitted to the court for signature as an uncontested matter or
at the time of the hearing on the merits and must contain the
exact terms of any judgment proposed to be entered in the case”];
see also Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 152 [“[i]n a
court trial, rendition of judgment occurs when the court signs and
files the findings, conclusions and the judgment”].)
Here, although the parties initially intended their
agreement resolving outstanding issues, presented to the court in
the form of a stipulated judgment, would become the judgment of
dissolution in the initial family law case, there never was a court
judgment and, accordingly, no merger because the parties
dismissed the case before the court acted. Moreover, the
dismissal was expressly without prejudice. As such, it did not
affect the rights of the parties and did not terminate the parties’
agreement by operation of law, as Izadpanahi suggests. (See
5 “The question of whether or not a property settlement
agreement is incorporated into a divorce decree so as to merge
therein is one of law.” (Mitchell v. Marklund (1965)
238 Cal.App.2d 398, 403; accord, Biagi v. Biagi (1965)
233 Cal.App.2d 624, 628.)
6
Wilkins v. Wilkins (1950) 95 Cal.App.2d 611, 613 [“[t]he term
‘without prejudice,’ in its general adaptation, means that there is
no decision of the controversy on its merits, and leaves the whole
subject in litigation as much open to another application as if no
suit had ever been brought”]; Fleishbein v. Western Auto Supply
Agency (1937) 19 Cal.App.2d 424, 427 [“[d]ismissals of actions
without prejudice ordinarily indicate that such judgments of
dismissal affect no right or remedy of the parties and that there
has been no decision of the case upon the merits”].)
2. Under Governing Principles of Contract Interpretation,
the Stipulated Judgment Was Effective Unless Modified
or Revoked by the Parties
Even if not terminated by operation of law with the
dismissal of the initial family law case, Izadpanahi contends by
its own terms the stipulated judgment was not intended to have
any effect following that dismissal. This argument
fundamentally misconstrues the document’s operative language.
“A stipulated judgment constitutes a written agreement
between the parties as to all matters covered by the stipulation.”
(Cal. Rules of Court, rule 5.411(b).) Such agreements, if not
merged into an interlocutory or final judgment, “are enforceable
as a contract.” (In re Marriage of Jones (1987)
195 Cal.App.3d 1097, 1104; see Fam. Code, § 2128, subd. (b)
[“[n]othing in this chapter changes existing law with respect to
contract remedies where the contract has not been merged or
incorporated into a judgment”].)
Like all contracts, a marital settlement agreement “must be
analyzed and interpreted in light of the parties’ mutual intent
and according to statutory requirements for the interpretation of
contracts.” (In re Marriage of Gray (2007) 155 Cal.App.4th 504,
7
522; see In re Marriage of Schu (2014) 231 Cal.App.4th 394, 399
[“[w]e construe a marital settlement agreement that is
incorporated into a stipulated judgment under the general rules
governing the interpretation of contracts”]; In re Marriage of
Gowan (1997) 54 Cal.App.4th 80, 87 [“[w]e agree that the
stipulation must be analyzed in light of the parties’ intent and
according to statutory requirements for contract interpretation”].)
Absent any conflict in extrinsic evidence, we review de novo
issues regarding the proper interpretation of a contract. (See
City of Hope National Medical Center v. Genentech, Inc. (2008)
43 Cal.4th 375, 395; Garcia v. Truck Ins. Exchange (1984)
36 Cal.3d 426, 439; Gilkyson v. Disney Enterprises, Inc. (2021)
66 Cal.App.5th 900, 915.)
“Under statutory rules of contract interpretation, the
mutual intention of the parties at the time the contract is formed
governs interpretation. [Citations.] In determining this intent,
‘[t]he rules governing policy interpretation require us to look first
to the language of the contract in order to ascertain its plain
meaning or the meaning a layperson would ordinarily attach to
it.’” (Hartford Casualty Ins. Co. v. Swift Distribution, Inc. (2014)
59 Cal.4th 277, 288; accord, Wind Dancer Production Group v.
Walt Disney Pictures (2017) 10 Cal.App.5th 56, 69 [“[w]e
ascertain ‘“the intent and scope of [an] agreement by focusing on
the usual and ordinary meaning of the language used and the
circumstances under which the agreement was made”’”].)
The stipulated judgment unequivocally stated the parties’
intent that their agreement to resolve outstanding issues would
remain in effect in the event they reconciled unless they agreed
8
in writing to modify or revoke it.6 As discussed, paragraph 20.03
provided, “If there should be a reconciliation of the parties hereto
after the effective date of this Stipulated Judgment, this
Stipulated Judgment shall nevertheless continue in full force and
effect as an Agreement of the parties until it is modified or
abrogated by another written instrument to that effect signed by
both parties.” The parties did reconcile (or, at least, attempted to
do so) after the stipulated judgment’s effective date. There was
no written instrument rescinding the agreement or modifying its
terms. Because neither party presented any extrinsic evidence to
suggest paragraph 20.03 meant something other than what it
actually said, the family court properly ruled it should be
enforced.7
6 As the family court explained at trial, “These parties were
always reconciling. I mean, that was part of this deal. . . . I
think without spending too much time looking at extrinsic
evidence, I think that the evidence would tend to show that there
was a long history of these parties trying to reconcile. So that is
a significant inclusion.”
7 Izadpanahi acknowledges no parol evidence was presented
and argues, correctly, “[i]t is the plain language of the document
that governs its interpretation.” Yet in his reply brief Izadpanahi
suggests for the first time his due process rights were violated
because the family court stated the question of the continuing
enforceability of the stipulated judgment was a legal, not a
factual, matter and did not allow live testimony or additional
evidence at the short cause trial on July 7, 2021 as required by
Family Code section 217 and California Rules of Court,
rule 5.113. Izadpanahi did not make this objection in the family
court, and he failed to include the argument in his opening brief.
It has been forfeited on appeal. (See In re Marriage of Eben-King
& King (2000) 80 Cal.App.4th 92, 117 [“party who fails to raise
9
Notwithstanding paragraph 20.03, Izadpanahi contends
the stipulated judgment was “expressly limited to the original
case” because it identified the family court case number, provided
that court retained jurisdiction to make all orders necessary to
enforce the terms of the stipulated judgment and contained no
severability clause. That the court in the original proceedings no
longer had jurisdiction after the case was dismissed is technically
correct but without significance. The family court in the case at
bar did not enforce the stipulated judgment pursuant to a
reservation of jurisdiction but on the basis the document was “a
contract between the parties that they had negotiated and
entered into.” As the court explained, “I don’t think this is an
issue of jurisdiction at all. I’m not reaching back . . . and saying
I’m enforcing a judgment . . . . I think the issue is whether or not
that is an agreement that this court can enforce in this new
matter, in which it does have jurisdiction.”
In re Marriage of Daly & Oyster (2014) 228 Cal.App.4th 505is instructive.8 In that case the parties entered into a stipulated
judgment with the intention it would be “‘conformed as a
Stipulated Judgement [sic] of the court.’” (Id. at p. 508.)
However, the stipulated judgment was never filed, and the family
court dismissed the petition for lack of prosecution. A second
dissolution petition was filed, and the family court concluded the
an issue in the trial court has therefore waived the right to do so
on appeal”]; see also In re Marriage of Brandes (2015)
239 Cal.App.4th 1461, 1484, fn. 10 [“‘appellant’s failure to raise
an argument in the opening brief waives the issue on appeal’”].)
8 We deny as unnecessary Izadpanahi’s request to take
judicial notice of documents filed in the family court in In re
Marriage of Daly & Oyster, supra, 228 Cal.App.4th 505.
10
prior stipulated judgment was an enforceable marital settlement
agreement. In affirming the judgment the court rejected the
argument “a stipulated judgment created only for one case cannot
become the basis for a judgment in a subsequent case,” holding
“nothing in the record suggests the stipulated judgment here was
intended to be limited to the original divorce proceedings.” (Id. at
pp. 511-512.)
Izadpanahi’s argument the written request for dismissal
was an express abrogation of the stipulated judgment is similarly
unpersuasive. The dismissal was not signed by Dolkhani, and, as
the family court noted, “doesn’t state that it will unravel or undo
the terms that the parties already agreed to.” Far more was
required: “[I]t is well settled that proof of reconciliation alone
does not abrogate the agreement [citation]. To avoid the contract
on this basis, there must be a clear indication that by reconciling
the parties intended to annul the agreement and restore their
earlier property rights. Such intent can be proven, for example,
by the destruction of the document containing the agreement,
execution of reconveyances or restoration of the control of the
property to one who formerly exercised it.” (In re Marriage of
Broderick (1989) 209 Cal.App.3d 489, 497-498; see also In re
Marriage of Daly & Oyster, supra, 228 Cal.App.4th at p. 512
[“[n]othing suggests the parties here intended that separation
and independence not occur—and the settlement agreement
become null—if the divorce took longer than five years”]; Crossley
v. Crossley (1950) 97 Cal.App.2d 627, 629 [“[t]he fact, standing
alone, that the husband and wife in this case resumed marital
relations, does not terminate the property agreement”].)
11
3. Dolkhani’s Acquisition of Additional Property Did Not
Render the Parties’ Stipulated Judgment Unenforceable
Finally, Izadpanahi argues additional community property
was acquired between 2017 and Dolkhani’s 2018 filing of her
petition for dissolution and, therefore, the 2017 stipulated
judgment “could not divide the community assets entirely.”
Izadpanahi does not explain why a binding agreement that covers
most of the parties’ assets and liabilities is rendered
unenforceable because there are additional, after-acquired assets
that need to be considered separately. If properly characterized
as community property, the judgment of dissolution could have
included division of the property or an offsetting payment, as well
as all the terms of the 2017 stipulated judgment.
Aside from this fundamental flaw, Izadpanahi did not
include the property he refers to—real estate in Calabasas
acquired by Dolkhani after the 2017 stipulated judgment was
executed—on his schedule of assets and debts (Judicial Council
form FL-142) prepared under penalty of perjury in July 2019 in
the case at bar; and the record includes an interspousal
individual grant deed, as well as a quitclaim deed, signed by
Izadpanahi, confirming the Calabasas property as the sole,
separate property of Dolkhani. That characterization is fully
consistent with the 2017 stipulated judgment, which provided in
paragraphs 11.01 and 11.02 that “[a]ll post separation earnings,
accumulations and investments” acquired by either party after
the effective date of the agreement would be separate property.
The court properly excluded this real estate from its final
judgment of dissolution.
12
DISPOSITION
The judgment is affirmed. Dolkhani is to recover her costs
on appeal.
PERLUSS, P. J.
We concur.
SEGAL, J.
FEUER, J.
13