Marriage of Haynes





















Filed 5/20/13 Marriage of Haynes CA1/3

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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



FIRST
APPELLATE DISTRICT



DIVISION
THREE




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In re the Marriage of CARMEN and MELVIN HAYNES.
CARMEN HAYNES, Respondent, v. MELVIN HAYNES, Appellant.	A135152 (Solano County Super. Ct. No. FFL112966)

Melvin
Haynes, appearing in propria persona,
appeals from a judgment dissolving his marriage to Carmen Haynes and dividing
the parties’ property.href="#_ftn1"
name="_ftnref1" title="">[1]
He contends that despite what he believed to be an agreement by the parties
that the date of their separation was December 18, 1993, Carmen was allowed to
surprise him at trial by presenting evidence and argument that the date of
separation was actually “sometime in 2008” and that the court erred by
prohibiting him from rebutting this new theory. He also argues that the court
applied an incorrect legal standard to determine the date of separation and
ignored relevant evidence that supported an earlier date of separation.
Finally, he argues that the court erred in denying his href="http://www.mcmillanlaw.com/">motion for reconsideration, which relied
on additional evidence not presented at trial. The record demonstrates,
however, that Melvin was given sufficient notice of Carmen’s contention and
that he did not object to her argument or evidence at trial or request a
continuance to present additional responsive evidence. The trial court applied
the proper standard in determining the date of separation and substantial
evidence supports the court’s finding. For these reasons, among others, the
court did not err in denying Melvin’s motion for reconsideration. Accordingly,
we shall affirm the judgment.

Factual and
Procedural History

The
parties were married in July 1951. On January
19, 2010, Carmen filed a petition for dissolution. The petition
alleges that December 18, 1993
was the date of separation. Melvin filed a responsive pleading in May 2010 that
also indicated the date of separation was December 18, 1993. In advance of trial, Carmen submitted
a trial brief reiterating that the date of separation was in 1993, but also
noting that “[t]he date of separation herein is uncertain as the parties
continued to act (as to third parties) as husband and wife well after their
claimed date of separation.”

At
trial, evidence was presented establishing that between 1951 and 1993, the
parties attempted to separate a number of times but reconciled each time. In
1993, Melvin moved out of the family home and the parties did not live together
for any significant period of time thereafter. Although disputed by Melvin,
Carmen testified that after Melvin moved out in 1993 the parties continued an
intimate relationship, took family vacations and attended family gatherings
together, filed joint tax returns for a number of years, engaged in business
transactions together, and held themselves out to friends and family as
married. While Melvin testified that he believed the marriage was over when he
moved out in 1993, Carmen testified that she held out hope for a reconciliation
until 2008 when she finally decided to end her marriage. She explained that in
January 2008 she and Melvin had travelled to Reno
to celebrate his birthday but ended up in a confrontation during which he tried
to choke her. It was only after this incident that she told Melvin the marriage
was over and went to see a paralegal about filing for a divorce. Melvin
acknowledged that he went on the trip to Reno with Carmen, but denied choking
her.

In
closing argument, Carmen’s counsel argued the 1993 “move-out” was a starting
point for the court’s inquiry into the date of separation but that Melvin
“availed himself of the benefits, protections and savings of filing joint tax
returns” for years after and that there was evidence they behaved as a married
couple until 2008. Counsel also argued that the precise date of separation is
not crucial because the parties were not dividing pensions and that all of the
parties’ assets, including a ranch near Arbuckle, California, a motel and a
duplex, were either purchased with community funds prior to 1993 (the Arbuckle
ranch) or traceable to community funds (the motel and duplex). Melvin did not
direct any closing argument to the date of separation but rather argued as if
it were established that the date was in 1993. He argued that the motel and the
duplex were purchased after 1993 and thus were clearly his separate property.
As to the ranch, he argued that no community funds were used in its purchase
and, even if they were, Carmen signed an enforceable quitclaim deed in 1995
making the ranch his separate property.

On
January 31, 2012, the court entered a judgment of dissolution. The court found
that the date of separation is “the day after [Melvin’s] birthday in 2008.” The
court found further that most of the parties’ assets were community property
subject to an equal division. The court found that the Arbuckle ranch was
purchased in 1985 with community funds and that the quitclaim deed Carmen
signed in 1995 transferring her interest in the ranch to Melvin should be set
aside as the product of undue influence. The court found that the motel and
duplex were acquired prior to the parties’ separation in 2008 and that
community funds were used to acquire both assets.

On
February 9, 2012, Melvin filed a motion for reconsideration. In it he argued
that the court abruptly ended the trial without allowing him to “put on the rest
of [his] case” and that if he had been given the chance, he would have, among
other things, presented evidence that he was not with Carmen in Reno in 2008
and instead was on a cruise with his girlfriend. He also argued that he was
surprised by Carmen’s challenge to the date of separation and that he should
have been given an opportunity to respond. The trial court denied the motion
for reconsideration, finding that it was both untimely and without merit.

Melvin
filed a timely notice of appeal.

Discussion

1. Melvin’s
due process rights were not violated.

Due
process requires that a party to a dissolution proceeding be given adequate
notice and a “ ‘full and fair opportunity to present all competent and
material evidence relevant to the matter to be adjudicated.’ ” (>In re Marriage of Rothrock (2008) 159
Cal.App.4th 223, 235-236; see also Mathews
v. Eldridge (1976) 424 U.S. 319, 333 [“The fundamental requirement of due
process is the opportunity to be heard ‘at a meaningful time and in a
meaningful manner’ ”].)

Contrary
to Melvin’s arguments on appeal, Carmen’s trial brief provided ample notice
that the date of their legal separation would be at issue in the trial. The
parties’ pleading did not create a binding agreement as to the date of
separation and Carmen was not required to amend her petition prior to trial. (>In re Marriage of Umphrey (1990) 218
Cal.App.3d 647, 659 [there is “neither a jurisdictional nor an equitable bar to
the court’s consideration of evidence bearing on the actual date of separation,
irrespective of the recitations in the . . . petition”].)

Likewise,
the court did not abruptly or prematurely end the trial without giving Melvin a
full and fair opportunity to present his case. At the conclusion of Carmen’s
testimony, the court clearly asked Melvin whether he had any other evidence to
present and he responded, “I have no more evidence.” After Carmen’s counsel
indicated that he had no rebuttal evidence to present, the court asked the
parties a few questions. When the court’s questioning broke down almost
immediately into a debate between Carmen and Melvin, the court ended it and
called for closing arguments. Melvin did not object or ask for an opportunity
to present additional evidence. As the court noted in denying Melvin’s motion
for reconsideration, Melvin did not focus any argument on the date of
separation. Rather, “he thought that those deeds that she signed were, in his
mind, sufficient evidence for his case. And . . . if it was, then the
date of separation and all this other stuff doesn’t matter so much.” It was
only after the court set aside the quitclaim deeds that Melvin shifted his
focus to contesting the date of separation.

>In re Marriage of Carlsson (2008) 163 Cal.App.4th 281, cited by Melvin,
is entirely distinguishable. In that case, the appellate court reversed the
judgment of dissolution on due process grounds where the trial court
“essentially ran the trial on a stopwatch, curtailing the parties’ right to
present evidence on all material disputed issues. Using the constant threat of
a mistrial, [the judge] pressured [the attorney] into rushing through her
presentation and continuing without a break. . . . Most damning, the
judge abruptly ended the trial in the middle of a witness’s testimony, prior to
the completion of one side’s case and without giving the parties the
opportunity to introduce or even propose additional evidence.” (>Id. at p. 292.) Nothing of the sort
occurred at the trial in this case.

2. The
court did not err in determining the date of separation.

Recognizing
that “rifts between spouses may be followed by long periods of reconciliation,
and the intentions of the parties may change from one day to the next,” courts
have held that “legal separation requires not only a parting of the ways with
no present intention of resuming marital relations, but also, more importantly,
conduct evidencing a >complete and final break in the marital
relationship.” (In re Marriage of von der
Nuell (1994) 23 Cal.App.4th 730, 736.) Thus, a court decides the date of
separation by examining two components, one subjective and the other objective.
(In re Marriage of Norviel (2002) 102
Cal.App.4th 1152, 1158.) The subjective component examines whether either of
the parties harbors the subjective intent to end the marriage. The objective
component examines whether there is objective conduct evidencing and in
furtherance of that intent. (Id. at
p. 1159.) The determination of a date of separation is proven by a
preponderance of evidence (In re Marriage
of Peters (1997) 52 Cal.App.4th 1487, 1489, 1491) and the testimony of a
single witness may be sufficient to prove a fact (Sabbah v. Sabbah (2007) 151 Cal.App.4th 818, 823). We review the
correctness of the trial court’s determination under the substantial evidence
standard of review. (Bono v. Clark
(2002) 103 Cal.App.4th 1409, 1421.) As a reviewing court, we must view the
evidence in the light most favorable to the prevailing party, giving Carmen the
benefit of every reasonable inference, and resolving all conflicts in her
favor. (In re Marriage of Mix (1975)
14 Cal.3d 604, 614.)

Here,
the court found that “Although both parties may have had the subjective intent
to end the marriage as far back as 1993, no actions furthering that intent
occurred until 2008 when [Carmen] told [Melvin] their problems were
irreversible and she hired a lawyer to file for divorce. That was the only real
objective evidence of conduct furthering either parties’ intent to end the
marriage.” The court explained that “aside from moving out, [Melvin] continued
on in the same type of marital relationship as he had previously. He went to
[Carmen] for sex. He filed their taxes together. He allowed Christmas cards to
go out together. He continued to negotiate property deals with her through
2005.” While moving out of the family home is one factor to consider, it is not
determinative and the court reasonably concluded based on all the evidence
presented that the date of separation was in 2008. (See In re Marriage of Hardin (1995) 38 Cal.App.4th 448, 452 [“All
factors bearing on either party’s intentions ‘to return or not to return to the
other spouse’ are to be considered.”].)

Contrary
to Melvin’s argument, the court did not “refuse to consider” relevant evidence
presented at trial. Although Melvin attempted to dispute much of Carmen’s
testimony, the trial court credited Carmen’s testimony, which supports the
court’s findings. Under the substantial
evidence test, we do not reweigh the evidence. We must affirm the judgment
if “there is any evidence (or any reasonable inferences which can be deduced
from the evidence), whether contradicted or uncontradicted, which, when viewed
in the light most favorable to . . . a court’s judgment, will support
the . . . judicial findings of fact.” (Antelope Valley Press v. Poizner (2008) 162 Cal.App.4th 839, 849,
fn. 11.)

Likewise,
the court did not err in rejecting Melvin’s belated attempts to introduce new
evidence after the judgment was issued. Although Melvin acknowledged at trial
that he went to Reno with Carmen in 2008, after the judgment was issued he
began denying that he was there and claiming instead that he was on a cruise
with his girlfriend. He attempted, through a motion for reconsideration, to
introduce new evidence, including a declaration from his girlfriend, that he
asserts proves that Carmen was lying about the Reno trip and therefore calls
into question the overall credibility of her testimony. There was, however, no
proper justification for the belated introduction of this evidence. (>In re Marriage of Herr (2009) 174
Cal.App.4th 1463, 1468 [party seeking reconsideration under Code of Civil
Procedure section 1008 must show not only new or different facts,
circumstances or law, but must also provide a satisfactory explanation for the
failure to produce the new evidence earlier].)

>Disposition

The judgment is
affirmed. Carmen is to recover her costs on appeal. Carmen’s request for an
award of attorney fees on appeal is denied without prejudice to a request for
fees in the trial court.





_________________________

Pollak,
J.





We concur:





_________________________

McGuiness, P. J.





_________________________

Jenkins, J.