Mrs. Tahereh Ghassemi VS Hamid Ghassemi
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STATE OF LOUISIANA 1 COURT OF APPEAL FIRST CIRCUIT 2011 CA 1771 MRS TAHEREH GHASSEMI VERSUS HAMID GHASSEMI DATE OF JUDGMENT JUN 8 2012 a ON APPEAL FROM THE FAMILY COURT NUMBER 158 DIV C PARISH OF EAST BATON ROUGE 469 STATE OF LOUISIANA HONORABLE JACK M DAMPF JUDGE PRO TEMPORE Thomas E Gibbs Baton Rouge Louisiana Tahereh Ghassemi Phil Breaux St Gabriel Louisiana 14 I Counsel for Plaintiff Appellee Mary E Roper Joseph K Scott III Baton Rouge Louisiana Counsel for Defendant Appellant Hamid Ghassemi BEFORE KUHN GUIDRY AND HUGHES JJ Disposition AFFIRMED 14iA d O e Aja E 0 481 1 me I a Defendant appellant Hamid Ghassemi appeals the family court judgment s concluding that he and plaintiff appellee Tareheh Ghassemi were married We affirm The parties who were born and raised in Iran are first cousins whose fathers were stepbrothers On May 22 2006 Mrs Ghassemi filed a petition seeking a divorce spousal support partition of community property and injunctive relief averring that Mr Ghassemi was purportedly married to another woman and that as such she was entitled to a divorce on the grounds of adultery In response Mr Ghassemi filed among other things a pleading suggesting that because the United States had no diplomatic relations with Iran and the parties were first cousins under principles of comity and conflicts of law the family court in Baton Rouge was or under no obligation to give legal effect to the Iranian marriage He also sought declaratory relief at the same time After a hearing the family court declined to recognize the parties marriage and dismissed Mrs Ghassemi spetition On appeal this court reversed noting that Mr Ghassemi had conceded for 14 purposes of the appeal that a marriage between first cousins is valid under Iranian law As such we concluded that the family court had erred by dismissing Mrs spetition and that under Louisiana law if the marriage was valid in the Ghassemi place where it was contracted it was cognizable in Louisiana absent a violation of strong public policy See Ghassemi v Ghassemi 20071927 La App 1st Cir 08 15 10 998 So 731 740 42 writs denied 2008 2674 20082675 La 2d 09 16 1 998 So 104 relying in part on La C art 3520A After a detailed 2d review of the history of Louisiana policy on firstcousin marriages we concluded s 2 1 that under conflictsoflaw principles although firstcousin marriages are presently against the law in Louisiana the policy prohibiting such marriages was not so strong as to preclude a Louisiana court from recognizing a validly contracted first cousin marriage in another place See Ghassemi 998 So at 74250 Thus we remanded 2d the matter to family court for further proceedings Ghassemi 998 So at 750 51 2d d Subsequent to this court reversal of the family court judgment and the s s Louisiana Supreme Court denial ofwrits the family court took up the merits of the s validity of the marriage between the parties A twoday hearing was held on January 27 and 28 2011 On March 3 2011 the family court issued written reasons for judgment concluding that Mr and Mrs Ghassemi entered into a valid marriage on April 8 1976 in Bam Iran which was documented by the Marriage Deed Before the family court actually issued its judgment on the merits Mr Ghassemi filed a rule to show cause why the relief Mrs Ghassemi requested should not be limited to the marital portion The pleading identifying the marital portion as the mahr averred lilt is a sum of money promised to be paid by the husband to the wife which is payable upon demand and can be claimed at any time after the matrimonial deed is executed by the parties Mr Ghassemi pleading further s elaborated about the mahr stating it is negotiated between the parents of the bride and groom and their agreement regarding the amount of the mahr is incorporated into the matrimonial deed which is a binding civil contract between the parties Mr Ghassemi then respectfully request ed I 3 judgment finding that the only relief which Mrs Ghassemi is entitled to receive from him is the mahr as set forth in the copy of the matrimonial deed On April 19 2011 the family court signed its judgment in conformity with its written reasons decreeing that the parties were married in Bam Iran on April 8 1976 That same day Mr Ghassemi suspensive appeal was granted s In this appeal Mr Ghassemi maintains that the family court erred in its conclusion that he and Mrs Ghassemi were married urging that the family court conclusion was s manifestly and legally erroneous Mrs Ghassemi testimony as detailed by the family court in its written s reasons for judgment clearly and unequivocally supports the conclusion that the parties were married in Bam Iran on April 8 1976 Thus the family court judgment is not manifestly erroneous See Stobart v State 617 So 880 882 La 2d 1993 see also Young v Allstate Ins Co 45 La App 2d Cir 8 47 512 10 18 3d So 595 597 a trier of fact reliance on the testimony of one witness which it s holds more credible than other witnesses is not manifestly erroneous Mr Ghassemi complains that the family court legally erred in imposing an adverse presumption against him because he was not present for the hearing on the 1 r Mr Ghassemi sdescription of the mahr in his pleading was based on the testimony of Hessam Marzaei who was accepted as an expert in Iranian law at the January 2011 hearing on the merits of the validity of the marriage We note that Mr Ghassemi sallegations about the applicability of the mahr fail to account for the directives of La C arts 2329 permitting spouses to enter into a matrimonial agreement without court approval during the first year after moving into and acquiring domicile in this state 2324 the legal regime of community of acquets and gains applies to spouses domiciled in this state regardless of their domicile at the time of marriage or the place of celebration of the marriage and 2340 things in the possession of a spouse during the existence of a regime of community of acquets and gains are presumed to be community 2 Mr Ghassemi failed to offer either in evidence or in brief the provisions of the laws of Iran that he maintains are applicable to establish the marriage Because we are without independent access to the laws of Iran and since Mr Ghassemi has not challenged the provisions Mrs Ghassemi supplied and implicitly were relied upon by the family court we apply that version of the provisions ofIranian law in this appellate review 4 1 I 1 merits of the validity of the marriage He points to the written reasons for judgment 1y which indicate that the family court applied the adverse presumption against him when he did not testify A party appeals from a judgment not the written reasons for judgment See Greater New Orleans Expressway Comm v Olivier 2002 2795 La 11 n 03 18 860 So 22 24 2d Initially we note that Mr Ghassemi did not request a continuance as a result of his alleged inability to be present at the hearing The record contains sufficient 0 evidence to support the family court conclusion that the parties were married s without an application of the adverse presumption against Mr Ghassemi for failing s to testify Thus there was no legal error in the family court judgment on this basis Additionally as Mr Ghassemi pointed out in brief prior to the hearing on the merits of the validity of the marriage he vehemently denied a marriage existed in both his pleadings and answers to interrogatories In her testimony Mrs Ghassemi admitted that Mr Ghassemi denied he was married to her And Hessam Marzaei 6 Mr Ghassemi expert in Iranian law articulated his opinion that Mrs Ghassemi s was not legally married to Mr Ghassemi in Bam Iran on April 8 1976 Thus to the 3 Mr Ghassemi averred that he was unable to travel to the family court in Baton Rouge because he was suffering from serious health problems that forced him to remain bedridden in Columbia where he presently resides with Gloria whom he represents to others as his wife and their minor child 4 o Without reviewing the propriety of such an action but assuming for purposes of this appeal that an application of the adverse presumption in this case were error on a de novo review of the record we would likewise conclude that the parties entered into a valid marriage based on Mrs stestimony Ghassemi 5 extent that the trier of fact was presented with conflicting versions of the facts the family court decision to credit Mrs Ghassemi s sversion over that Mr Ghassemi is not manifestly erroneous See Stobart 617 So at 882 2d Mr Ghassemi also asserts legal error by challenging the efficacy of the documents Mrs Ghassemi offered as further evidence of her marriage to Mr Ghassemi He points to the family court comments in its written reasons for s judgment which indicate reliance on an exhibit not admitted into evidence Again we emphasize that it is the judgment not the reasons for judgment See Greater New Orleans Expressway which forms the basis of an appeal n Comm 860 So at 24 2d Because the record amply supports the judgment decreeing that the parties entered into a valid marriage on April 8 1976 based solely on the testimonial evidence the action ofthe family court was harmless error Moreover in his pleading entitled Motion and Order for Divorce filed on July 26 2011 during the pendency of his suspensive appeal Mr Ghassemi judicially requested a divorce from Mrs Ghassemi stating that he respectfully requests that a rule to show cause be issued in this captioned matter ordering Mrs Ghassemi to show cause if she can why a judgment of divorce should not be granted in this matter pled subsequent to the lodging of his suspensive appeal This pleading was unconditional and unequivocal As such he is now judicially estopped from denying the fact that he was married to Mrs Ghassemi See Lowman v Merrick 20060921 La App 1 st Cir 3960 So 84 92 the 07 23 2d doctrine of judicial estoppel prohibits parties from deliberately changing positions according to the exigencies of the moment The doctrine is intended to prevent the perversion of the judicial process and prevents playing fast and loose with the C courts I Thus the family court judgment is correct on this alternative basis as well DECREE For these reasons i the family court judgment decreeing that the parties were married on April 8 1976 is affirmed defendant appellant Mr Hamid Ghassemi AFFIRMED E N 7 Appeal costs are assessed against NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2011 CA 1771 TAHEREH GHASSEMI VERSUS HAMID GHASSEMI HUGHES J dissenting I respectfully dissent Some contracts require more formality than others such as a will or the sale of an immovable Different rules may apply in proving these in the event a dispute arses While recognizing the difficulty of obtaining documents from modern day Iran the concept of proving a marriage by a preponderance of the evidence from the testimony of the parties is troubling A clear and convincing standard of proof might be desirable under these circumstances NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2011 CA 1771 TAHEREH GHASSEMI VERSUS HAMID GHASSEMI 1 4V GUIDRY J concurs in the result and assigns reasons GUIDRY J concurring Given this court prior published decision in Ghassemi v Ghassemi 07 s 1927 La App 1 st Cir 10 998 So 2d 731 writs denied 082674 082675 08 15 La 1 998 So 2d 1 and the obligation to apply existing First Circuit 09 16 04 law the question of whether the purported marriage was in violation of public policy is not before us in the instant case having previously been decided by another panel of this court The only question before us is the trial court finding s based on its credibility determinations that the parties were in fact married in Bam Iran on April 8 1976 On the record before us I cannot say that the trial court manifestly erred in its finding majority Therefore I concur in the result reached by the
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