Marriage of
Filed 11/6/13 Marriage of Harrison CA4/3
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opinion has not been certified for publication or ordered published for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
FOURTH
APPELLATE DISTRICT
DIVISION
THREE
In re Marriage of KEVIN F. and
LINDA C. HARRISON.
KEVIN F. HARRISON,
Respondent,
v.
LINDA C. HARRISON,
Appellant.
G046942
(Super. Ct. No. 08D000001)
O P I N I O N
Appeal from a judgment
of the Superior Court
of
County, Claudia Silbar, Judge.
Affirmed.
Law Office of Ronald B.
Funk and Ronald B. Funk for Appellant.
Kevin F. Harrison, in
pro. per., for Respondent.
* * *
Appellant Linda C.
Harrison (wife) appeals from a judgment
of dissolution of her marriage to Kevin F. Harrison (husband). She raises only one issue, that there is
insufficient evidence to support the date of separation selected by the trial
court. Based on wife’s failure to fully
set out all the material facts as to the date of separation and the presumption
the court’s decision was supported by substantial
evidence, we affirm.
PROCEDURAL HISTORY
We present the
procedural history here and set out the facts presented in the briefs in the
discussion portion.
Husband filed the
petition for dissolution in this action in January 2008. He claimed a separation date of June 15, 2003. In wife’s response to the petition the date of
separation was shown as “to be determined.†In her testimony and closing argument she asserted
a separation date of December 2008.
Wife had previously
filed a petition in January of 2007, of which the court took judicial notice,
that showed a separation date of January
8, 2007. Wife testified that
“immediately†after she signed the petition, she notified her lawyer she did
not want to proceed.
name="_ftnref1" title="">[1] That petition was dismissed in August
2007.
After a two-day hearing
the court found the date of separation “that best fit[] the totality of the
circumstances†to be January 8, 2007.
This was what wife stated was the date
of separation in her petition filed in January 2007. In reaching its decision the court evaluated
the testimony of both parties and the documentary evidence. It noted the case was “factually unusual.â€
It found the parties had
had no intimate relationship for years before that date. Wife had been involved in a serious
relationship with another man, Steve McClenahan. Although this in itself does not prove a separation
under the totality of circumstances it supports the only logical conclusion. There were six to nine months worth of hotel
receipts in 2006 showing wife as McClenahan’s fiancée, and she signed a lease,
as a fiancée, to share a residence with McClenahan. The court also relied on a receipt from a
hotel in Cabo San Lucas in February 2006 listing the occupants as Steve and
Linda McClenahan. There were also
various itineraries of “trips and activities†for McClenahan and wife.
The court relied on several
e-mails sent by McClenahan to wife that showed he had “detailed knowledgeâ€
about the parties’ relationship in which he gave wife advice, including one
dated December 2005 advising her about custody, visitation, and financial
issues. In December 2005 McClenahan sent
husband an e-mail stating wife was going to divorce husband and marry him. In May 2006 wife and McClenahan opened a joint
checking account.
The court put all of
these facts together to show wife’s subjective intent to leave marriage. The filing of the petition was the objective
demonstration of that subjective intent.
In light of wife’s
argument there was a reconciliation, the court found to the contrary. When wife broke off her relationship with
McClenahan, husband “had already given up†and from his point of view the
marriage was over.
Wife filed a motion for
reconsideration as to the date of separation, which the court denied.
DISCUSSION
of Review and General Principles
Wife contends there is
insufficient evidence to support the court’s finding as to the date of
separation. “Date of separation is a
factual issue to be determined by a preponderance of the evidence. [Citation.]
‘Our review is limited to determining whether the court’s factual
determinations are supported by substantial evidence and whether the court
acted reasonably in exercising its discretion.’
[Citation.]†(
Cal.App.4th 925, 930.)
When a party makes a
claim of insufficiency of the evidence we begin with the presumption the
judgment is correct. (
194 Cal.App.4th 939, 956.) We may not
reweigh or resolve conflicts in the evidence or redetermine the credibility of
witnesses. (Citizens Business Bank v. Gevorgian (2013) 218 Cal.App.4th 602,
613.) We liberally construe the court’s
findings of facts, whether express or implied.
(Ibid.) Even the testimony of a single witness may be
sufficient. (Ibid.; Evid. Code, § 411.)
And the court may believe part of a witness’s testimony and disbelieve
another part. (Citizens Business Bank v. Gevorgian, supra, 218 Cal.App.4th at p. 613.)
California Rules of
Court, rule 8.204(a)(2)(C) requires that an opening brief must “[p]rovide a
summary of the significant facts limited to matters in the record.†Wife has failed to do so, setting out very
few facts as to the date of separation in the section entitled “Factual and Procedural
History.†(Capitalization, boldface, and
underlining omitted.) Although she does
recite some facts in the argument portion of the brief, they are completely
one-sided and do not include the evidence supporting the court’s decision or
husband’s position.
Because
wife is challenging the sufficiency of the evidence, we may consider her failure
to present all material facts as forfeiting the argument. “‘A party who challenges the sufficiency of
the evidence to support a particular finding must summarize the evidence on that point, favorable and unfavorable, and
show how and why it is insufficient. [Citation.]’ [Citation.] ‘[W]hen an appellant urges the insufficiency
of the evidence to support the findings it is [her] duty to set forth a fair and
adequate statement of the evidence which is claimed to be insufficient. [She] cannot shift this burden onto
respondent, nor is a reviewing court required to undertake an independent
examination of the record when appellant has shirked [her] responsibility in
this respect.’ [Citation.]†(Huong
Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409.)
If an appellant fails to fulfill
this burden we may consider the argument forfeited. (Nwosu
v. Uba (2004) 122 Cal.App.4th 1229, 1246.)
And we are “‘entitled to indulge in a presumption that the evidence
sustains the determination of the trial court.’
[Citations.]†(
890, 922.)
Although we elect not to
forfeit wife’s argument, we do rely on the presumption the evidence was
sufficient. None of the favorable evidence
wife raises affects our decision.
Sufficiency of the Evidence
There are two components
to determining a date of separation: one
or both spouses must have a subjective intent to dissolve the marriage and that
intent must be manifested with objective conduct. (In re
Marriage of Norviel (2002) 102 Cal.App.4th 1152, 1158-1159.) The court laid out several pieces of evidence
in support of its determination the date of separation was January 8, 2007.
Wife makes two intertwined
arguments challenging this date. She
claims January 2007 was a “compromise†date, alleged by neither party. And she asserts there is no evidence to
support it. We are not persuaded
First, wife fails to
cite to any authority that limits the court to a finding that the date of
separation must be proposed by a party. Recitals
in pleadings are “probative but not conclusive.†(Hogoboom & King, Cal. Practice
Guide: Family Law (The Rutter Group
2013) ¶ 8:114, p. 8-37; see In re Marriage
of Umphrey (1990) 218 Cal.App.3d 647, 656-657 [court not required to accept
date of separation set out in property settlement agreement].)
The mere fact the date
the court selected was set out in the first petition, which was subsequently
dismissed, does not discredit the court’s decision. Moreover that the court might have urged the
parties to settle on a separation date “in the 2006 range†or advised during
the hearing it was considering a date in 2006 or 2007 does not invalidate the
court’s finding.
Second, wife has not
overcome the presumption that the court’s finding is supported by the evidence. Wife points to evidence she believes supports
her position, maintaining it is undisputed.
This argument fails. The evidence
is disputed and it is not our function to reevaluate it.
For example, wife
asserts she resided in the family home “[e]xcept for a brief period in early
2008†until the order for her to vacate in December of that year. She testified when she returned in April 2008
she and husband “tried to ‘work our marriage out for several months.’†But, as wife acknowledged, husband denied
both the April 10 date and that he engaged in any type of reconciliation effort. Wife’s claim that her testimony is more
credible than husband’s violates a basic principle of the standard of review,
i.e., assessment of credibility is the trial court’s function, not ours.
Wife also asserts
husband based his alleged date of separation on her subjective intent. But husband testified several times about his
own intent that the marriage was finished, at least by January 2007.
Wife additionally relies
on a question she asked of husband at the hearing about a statement in a
declaration (not produced) that even though he had filed a dissolution
petition, he stated “‘we don’t want to get divorced.’†Husband countered with testimony he had made
similar statements in an attempt to keep her calm given her emotional
instability. Husband points out the
court had previously observed and noted this problem and ordered she be
psychologically evaluated. Wife was also
found to have perpetrated domestic violence.
Wife raises several
additional pieces of evidence, but we need not discuss them in light of her
failure to present all material facts.
In any event, husband contradicted each one of them.
In sum, wife has not met
her burden to set out all material facts, whether favorable or unfavorable, nor
has she overcome the presumption that there is sufficient evidence to support
the court’s finding.
DISPOSITION
The judgment is
affirmed. Husband is entitled to costs
on appeal.
THOMPSON,
J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
FYBEL, J.
the hearing on this issue although she had had at least three attorneys prior
thereto.
