Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. FDI-05-760061.
Kline, P.J.
Myrna Dolores Banks (wife), petitioner in this marital dissolution proceeding, appeals from an order denying her motion for reconsideration of the trial court’s ruling that she and Craig Anthony Banks (husband) separated from one another on April 25, 1995, as husband contended. As a result of the ruling, wife had no community property interest in the residence purchased by husband after that date, as the Family Code provides that “accumulations of a spouse . . . while living separate and apart from the other spouse, are the separate property of the spouse.” (Fam. Code, § 771, subd. (a).)
In his response to the petition for dissolution, husband claimed the date of separation was April 22, 1995, which he identified as the date he phoned wife to inform her of his understanding that the two of them were then separated. The court apparently settled on April 25 because husband testified that wife responded to this message “two or three days later” by then telling husband “I don’t care.”
Husband executed an agreement of sale for the property and made the initial down payment in October 1995, and the grant deed on the property and the deed of trust were recorded on December 28, 1995.
Wife claims the trial court’s failure to consider relevant evidence bearing upon the date the parties separated constitutes an abuse of discretion. We shall affirm the judgment.
FACTS AND PROCEEDINGS BELOW
Wife filed her petition for dissolution in propria persona on September 30, 2005, and was unrepresented by counsel during all of the proceedings below. The petition claimed, among other things, that the parties separated on August 24, 2005, and that a residence at 24 Las Villas Court in San Francisco, purchased in 1995, the title to which was only in husband’s name as “his sole and separate property,” was in fact community property. In response, husband claimed the parties separated on April 22, 1995 (four years eleven months after the date of marriage, but several months prior to his purchase of the Las Villas Court property), that the aforesaid residence and furniture and furnishings therein were his separate property, and asked that these assets be confirmed as such by the court.
The Evidence
The only contested issue was the date of separation, and a bifurcated trial on this reserved issue was held on May 16, 2006. Wife’s basic position is set forth in the pretrial declaration she filed on May 1, 2006. The declaration states that though title to the property was on both the grant deed and deed of trust in the name of husband—who was described in both documents as “a married man”—as his “sole and separate property,” she participated in the purchase of the property by personally paying a portion of the down payment on the house, and also assisting in payment of the mortgage, home insurance, property taxes, homeowner dues, and other household expenses, and served for two years as a member of the Las Villas Homeowner’s Association. The parties’ relationship was turbulent from the outset. Wife allows she “never lived in the house” (though she sometimes “stayed there”), but explains that this was solely due to husband’s continuous abusive and assaultive behavior, which resulted in her and her teenage daughter effectively being “kicked out” and forced to obtain housing elsewhere. The declaration concludes as follows: “I cannot be heald [sic] responsible for the Respondent kicking me out as I did not leave of my own free will. I have never separated from the Respondent because he controlled my every move whether we were together or not. Whenever he would kick me out I would hide out for a while. He would harass every one until I surface [sic]. I had to spend at least 4 nights a week with him [i]f I was not ready to trust him and come home. The respondent had to see me every day.”
This declaration and a responding declaration of husband were the focus of much of the questioning at trial, at which time the parties expanded upon and reaffirmed the representations set forth in their respective declarations.
Police incident reports indicate that on many occasions—both prior to and after the 1995 separation date claimed by husband—wife sought police intervention in response to husband’s alleged abusive behavior and, in 2001 and 2004, the San Francisco Superior Court issued protective orders restraining husband from coming within 100 yards of wife at her residence or place of work. Except for one in 2004, the police incident reports indicate wife was at the time living at an address other than 24 Las Villas Court. The protective orders also confirm that the parties were then living apart. Wife states in her declaration that husband “has used the house being in his name as the means to control me.” In her answers to interrogatories, wife indicated that the provisions of husband’s last will and testament of September 18, 2003, bequeathing her “my property at 24 Las Villas Court” as well as all of his other assets, “was done to save face with me since Respondent did not keep his promise and put my name on our home six months after purchase.” According to wife, she did not formally participate in the purchase of the home and her name was not put on title to the property solely because her credit rating at the time (her “debt-to-income ratio”) would have prevented the couple from obtaining a favorable loan. Husband claimed wife’s credit rating had nothing to do with her exclusion from the purchase loan and title to the property.
In response to wife’s declaration and other pretrial representations, husband filed a declaration stating in material part as follows: “During the first six months of our marriage, Petitioner stayed with me one to two days a week and sometimes not at all. At said time, her daughter CLASSY, who originally introduced us, was a teenager and would not come to live with us. During this period of time MYRNA had an apartment at the Geneva Towers on Schwerin Street in San Francisco and that is where she resided with her minor daughter, CLASSY. [¶] After approximately six months of marriage, MYRNA’s other minor daughter, SABRINA BRITTON, died and MYRNA began a state of deep depression. [¶] From 1992 to 1994 MYRNA got another apartment with her daughter on Kiska Road in San Francisco. I was not allowed to go to said apartment to visit her and she stated she wanted nothing to do with me. Since 1994, she stayed with her daughter CLASSY who then lived on Griffith Street in San Francisco. Thereafter she stayed between CLASSY’s and her Mother’s[,] who had a special room in her house just for MYRNA. [¶] I tried to get my marriage back on track and to reconcile and each time I tried I had the police called on me and restraining orders submitted against me to keep me away. I did not fight the restraining orders because I was at these places trying to get her to come home. [¶] On April 22, 1995, during tax season after talking to Mildred, our family accountant, I made up my mind and told MYRNA that she had to come home or we would separate and divorce. I told her I could no longer have her living outside the house and was informed by her that she did not care.”
The one-day court trial, at which only the parties testified, amplified the information and claims set forth in the parties’ declarations and answers to interrogatories. Asked by wife why he never formally sought a legal separation from her, husband said, “I was unaware that it would end up as it had, but I figured with all the restraining orders that you placed upon me, that it wouldn’t even be an issue because I never knew where you were either.” Husband remained married to wife for 10 years after the date of separation, he claimed, because he was satisfied with the fact of separation, and “didn’t look at it as marriage.” Husband said he did not ask wife to sign a quitclaim deed, and it was at the request of the mortgage lender that she did so (evidently because husband was identified on loan documents and the deed of trust as a “married man”). When asked on cross-examination how she came to the conclusion that the 24 Las Villas Court property was community property and/or quasi-community property, wife responded that it was “because my husband and I both purchased that property together. We had a deal. The deal was that when I received my money from my daughter, that it would go towards the house. The only reason why my name wasn’t on the house was because of debt-to-income ratio, and we were instructed at Bay View Federal Bank that Craig[’s] name was to go on the house.” Wife testified that, at the time of the purchase, title company representatives told her “your name does not have to go on the loan. Your name will go on the title in six months, and that was Craig and I [sic] agreement at the time.” Wife said she was living with husband at the time of the purchase, but acknowledged that between April 28, 1990 (the date the parties married) and August 24, 2005 (the date of separation claimed by wife), she lived at “about five” different addresses she considered her residences, and also temporarily at four other addresses.
At the end of her opening brief, wife very briefly argues that husband’s failure to advise her of the consequences of executing the quitclaim deed was a breach of his fiduciary duties. As this argument, which was not raised in the trial court, is being advanced for the first time on appeal, we do not address it.
The Trial Court Determination
After the matter was submitted for decision, the trial judge noted that the factual difficulties all related to the fact that “the parties had separated and reconciled and separated and reconciled a number of times prior to the earliest date of separation allegation, and seemed to have continued doing some of the same patterns of behavior thereafter, although I hear from Mr. Banks that from the time that he notified Ms. Banks of his intention to be divorced, he claims they did not reconcile again thereafter.” Relying explicitly on the analysis In re Marriage of Norviel (2002) 102 Cal.App.4th 1152, the court stated that the burden to show the parties had reconciled at the time of the property purchase rested with wife, telling wife that “the most important thing that you should be able to show is evidence that would suggest that the world, that is, people you work with, people you socialized with, your neighbors, et cetera . . . should be able to say, ‘we know these people as married.’ ” Concluding that wife failed to produce such evidence, the court found “that the date of separation is April 25, 1995.” The court based this determination primarily on the facts that husband expressed his intention to separate to wife in April 1995, and she concurred, and he thereafter conducted his affairs in a manner consistent with that intention. The court acknowledged that husband’s failure to commence a dissolution proceeding during the 10 years following the purchase of the Las Villas Court property was somewhat inconsistent with its determination, but found that consideration outweighed by many other factors indicative of separation in 1995. On June 26, 2006, the court issued a statement of decision confirming this finding. Judgment was entered on June 28, 2006.
The statement of decision states: “On April 22, 1995, Respondent CRAIG A. BANKS, after having left the office of his accountant, placed a telephone call to Petitioner MYRNA DOLORES BANKS, after having reached the conclusion that his marriage was irrevocably broken and that there was no possibility of getting back together with Petitioner. He further had no intention of resuming marital relations. Respondent was unable to make telephone contact with Petitioner at said time and left a message on her answering machine containing all of the foregoing. Within a couple of days Respondent finally was able to talk to Petitioner and informed her of the foregoing. Petitioner’s response was that she did not care.”
On June 22, 2006, prior to the entry of judgment, wife filed a notice of motion for reconsideration with an attached seven-page declaration in which she (1) affirmed the truth of her trial testimony and explained why it should be deemed credible; (2) indicated that in April 2006 she had complained to the police about “harassing phone calls” she received “from women who call [husband] ‘daddy,’ ” in which the callers said such things as, “You old stupid bitch, you ain’t getting nothing from Craig,” and she believed husband’s voice could be heard in the background; (3) stated that on May 14, 2006, two days prior to trial, she received a call from an unidentified woman telling her, “Tell your witnesses they better not show up in court”; and (4) claimed that the police unjustifiably refused to investigate the threatening calls she received, which indifference wife attributed to the fact that “I am a black woman from Bay View Hunter’s Point and ‘[w]ho [c]ares.’ ” Together with her declaration, wife submitted short declarations from friends and relatives all briefly relating husband’s unfair treatment of wife over the many years of their relationship, and numerous documents (many of which had previously been received in evidence) that wife believed supported her declaration and trial testimony.
On September 22, 2006, the trial court issued an order stating in its entirety: “Petitioner’s Motion for Reconsideration of this Court’s Judgment on Reserved Issues signed June 26, 2006 and filed June 28, 2006 in the above-noted action is hereby denied.”
On October 13, 2006, wife filed notice of appeal “from the Order of the Honorable Marjorie A. Slabach of September 22, 2006, denying her Motion for Reconsideration.”
DISCUSSION
The Adequacy of the Record
As a threshold matter, and relying on Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295, husband claims that wife, who has the burden of presenting an adequate record, has failed to do so, and the appeal must be resolved against her on the ground that meaningful review cannot be had. Husband emphasizes that the appeal is from the denial of wife’s motion for reconsideration, and as to that the record consists only of wife’s notice of motion and the trial court’s order denying the motion. Moreover, husband points out, a motion for reconsideration must be based on “new or different facts, circumstances, or law” (Code Civ. Proc., § 1008, subd. (b)) claimed to exist and why the same was not previously offered; whereas wife’s opening brief does not even discuss the declarations she belatedly offered the trial court, let alone explain why they could not have been produced at or prior to trial. As husband correctly points out, wife’s briefs in this court are addressed entirely to the evidence that was produced at trial and the trial court’s assessment of the credibility of husband’s testimony. Moreover, wife’s motion for reconsideration does not claim she was unable to present the declarations and related documents that accompanied the motion at trial. At best, the motion only obliquely suggests that the seven declarants were intimidated by husband or others from coming forward; a claim that is hard to credit, since the declarants are wife’s children and grandchildren, or the unmarried co-parent of wife’s grandchild.
In her reply brief, wife maintains that the denial of reconsideration was not based on the failure to satisfy the requirements of Code of Civil Procedure section 1008, but simply a reaffirmation of the trial court’s original ruling. According to wife, a pro per litigant “is entitled to some indulgence by the trial court”, and the trial court must be deemed to have properly “leveled the playing field” by accepting as “new” the evidence presented in wife’s motion for reconsideration (citing Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284 and Film Packages, Inc. v. Brandywine Film Productions, Ltd. (1987) 193 Cal.App.3d 824, 827-828, fn. 3).
Wife’s attempt to evade her responsibility to show why the newly presented evidence was not available at or before trial is untenable. In any event, we would be unable to grant wife the relief she seeks even if we attributed the inadequacy of the record to her pro per status and overlooked the problem on the dubious theory she advances.
The Standard of Review
“The courts have neither defined the standard to be employed nor the factors to be considered in determining the date of separation. Nevertheless, the answers are implicitly contained within the cases. All factors bearing on either party’s intentions ‘to return or not to return to the other spouse’ are to be considered. [Citation.] No particular facts are per se determinative.” (In re Marriage of Hardin (1995) 38 Cal.App.4th 448, 451-452.) The Hardin court found instructive In re Marriage of Baragry (1977) 73 Cal.App.3d 444, “which reversed a trial court finding the parties separated when husband moved out of the family home to live with his girlfriend on his boat. The court looked to the parties’ continuous and frequent contacts and the husband’s intentions as expressed in cards sent to his wife. Moreover, the filing of joint tax returns, and husband’s other written acknowledgments that he resided at the family residence convinced the court a complete and final break in the marital relationship did not occur until husband filed the petition to dissolve four years after he moved out. The court discounted the significance of the absence of a sexual relationship between the parties and husband’s cohabitation with his girlfriend as ‘evidence [which is not] tantamount to legal separation.” (In re Marriage of Hardin, at p. 452.)
Hardin also looked to the opinions in In re Marriage of Umphrey (1990) 218 Cal.App.3d 647 and In re Marriage of von der Nuell (1994) 23 Cal.App.4th 730. In Umphrey, the court observed that it’s “conclusion that there is nothing sacrosanct about a separation date recited in a settlement agreement recognizes not only the equitable nature of the proceedings, but the idiosyncrasies of human relationships. As this case illustrates, it is not uncommon for parties to a marriage gone sour to live their lives separate and apart while maintaining some vestiges of the marital relation. Many marriages are “on the rocks” for protracted periods of time and it may be many years before the spouses decide to formally dissolve their legal relationship. In such situations, separation dates can often be “guesstimates” or approximations selected at random or without careful consideration.’ ” (In re Marriage of Hardin, supra, 38 Cal.App.4th at p. 452, quoting In re Marriage of Umphrey, at p. 657, fn. 2, italics added by Hardin court.) In In re Marriage of von der Nuell, the court noted that “the date of separation is determined by more than when a party leaves the family residence or files a dissolution petition. The length of time voluntary support is paid and the ‘ongoing economic, emotional, sexual and social ties between the parties and their attempts at reconciliation [also indicates when] a complete and final break . . . occur[s] . . . .’ ” (In re Marriage of Hardin, at p. 453, quoting In re Marriage of von der Nuell, at p. 737.)
Whether an issue is one of “law” or “fact” generally depends on whether its resolution turns on the evidence or on the application of law. “In theory, a determination is one of ultimate fact if it can be reached by logical reasoning from the evidence, but one of law if it can be reached only by the application of legal principles. [Citations.]” (Board of Education v. Jack M. (1977) 19 Cal.3d 691, 698, fn. 3.) Because there is in this case no disagreement between the parties as to the governing legal principles, and their dispute relates almost entirely to the weight that should be accorded conflicting evidence relating to whether property is separate or community property, this appeal does not present an issue of law. (See Uniroyal Chemical Co. v. American Vanguard Corp. (1988) 203 Cal.App.3d 285, 292 [“question of law cannot be one where the question is answered by considering conflicting evidence”].) Accordingly, the substantial evidence test provides the applicable standard of review. (In re Marriage of Dekker (1993) 17 Cal.App.4th 842, 849; In re Marriage of Ananeh-Firempong (1990) 219 Cal.App.3d 272, 279.)
The Trial Court’s Ruling was Not Erroneous
The parties agree, as did the trial court, that the evaluation of the evidence must satisfy the objective and subjective tests set forth in In re Marriage of Norviel, supra, 102 Cal.App.4th 1152. In Norviel, the court reversed a determination that the parties’ date of separation was the date on which the husband stated his intention to end the marriage, even though the parties continued to reside in the same home for two months after that time. The court held that the trial court erred in finding the couple had separated on the date that the husband communicated to his wife that the marriage was over. Acknowledging that there may be cases in which the parties could remain under the same roof and still live apart physically, it found this not to be such a case. Citing In re Marriage of Hardin and In re Marriage of von der Nuell, the Norviel court reasoned that “two factors emerge as prerequisites to separation. First, at least one spouse must entertain the subjective intent to end the marriage; second, there must be objective evidence of conduct furthering that intent. [Citations.] ‘Simply stated, the date of separation occurs when either of the parties does not intend to resume the marriage and his or her actions bespeak the finality of the marital relationship.’ [Citation.]” (In re Marriage of Norviel, at pp. 1158-1159, quoting In re Marriage of Hardin, supra, 38 Cal.App.4th at p. 451.)
In the portion of her opening brief entitled “Standard of Review,” wife also appears to claim that, as in In re Marriage of Hardin, supra, 38 Cal.App.4th 448, the trial court excluded what it considered to be subjective evidence and certain undisputed evidence and failed to make factual findings necessary to a resolution of disputed material issues. Wife argues that the trial court made the same mistakes here, which constitutes an abuse of discretion. This claim is meritless. The record does not show that the trial court excluded or failed to consider any of the numerous documents and other materials wife offered in evidence or any portion of her testimony. Nor did the court fail to make any necessary finding with respect to the sole disputed factual question.
Applying this test, wife claims husband’s telephone message telling her of his intent to separate “even if accepted at face value, is belied by his subsequent conduct. A husband who has pursued his wife on at least three separate occasions from 1997 to 2004, from Pinole to San Francisco, and inflicted severe beatings along the way, can hardly be said to be engaged in conduct which evidences ‘a complete and final break in the marital relation.’ ” Wife also points to certain statements made by the parties set forth in some of the police incident reports, such as a 1997 incident report that husband stated wife had “recently” left him and they were then having some “marital troubles,” and a statement of wife that husband wanted to reconcile but she did not. Finally, wife claims that husband’s admissions that she deposited $1,000 in “blood money” into a joint account the parties maintained in 1996 (which husband claimed was payment of a debt), and that he tried to “bring [her] home once or twice” after the separation date he claimed, “are not the actions of a husband intent on effecting a permanent separation, but just the opposite.” Wife claims statements she made that are also referred to in police incident reports provide additional indications that the parties’ marriage had not ended: her reference in 1997 to her “recent separation”; her statement in 2001 that she is “currently separated” after 11 years of marriage; and her 2004 statements identifying her residence as 24 Las Villas Court, that she has been married to husband for 13 years, and that she “fears for her life, and was not returning home.”
Wife’s argument is unacceptable. As the trial court clearly recognized, the evidence was not clear cut and some evidence supported wife’s position, such as the fact that husband never filed for dissolution of the marriage. The court was also manifestly aware of the applicability of the test articulated in In re Marriage of Norviel, supra, 102 Cal.App.4th 1152, which it referred to not only at the time it made its ruling from the bench, but also in its statement of decision. Wife cannot simply select the evidence that supports her position, ignore that which does not, and claim it was error to assign greater weight to the husband’s evidence. Indeed, when an appellant’s brief states only the favorable facts, ignoring evidence favorable to the respondent, an appellate court may treat the substantial evidence issues as waived, and presume the record contains evidence to sustain every finding of fact. (See, e.g., Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246; Brockey v. Moore (2003) 107 Cal.App.4th 86, 96-97; Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.)
Though it is worthy of note that some of the evidence wife relies upon does not support her position; such as her 1997 reference to her “recent separation” and her statement in 2001 that she is “currently separated.”
In the end, the trial court’s statement of decision assigns dispositive weight to husband’s testimony that, after having reached the conclusions that his marriage was irrevocably broken, there was no possibility of getting back together with wife, and he had no intention of resuming marital relations, he telephoned wife on April 22, 1995 to convey this information, and left a message to that effect. The statement of decision also credits husband’s testimony that when he next spoke with wife, several days after she received his message, she told him “she did not care.” The court believed and gave weight to this testimony despite the fact, which the court noted in its statement of decision, that wife denied ever receiving the phone message or making the statement husband related.
We cannot fault the trial judge’s evaluation of the evidence. Wife’s argument that the evidence she produced was more persuasive than that produced by husband is simply indifferent to the “conflicting evidence” rule, which is a corollary to the substantial evidence rule. The “conflicting evidence” rule provides that where, as here, “a statement of decision sets forth the factual and legal basis for the decision, any conflict in the evidence or reasonable inferences to be drawn from the facts will be resolved in support of the determination of the trial court decision. (In re Marriage of Hoffmeister (1987) 191 Cal.App.3d 351, 358.)
Cognizant that the court’s evaluation of the evidence was significantly influenced by its determination that husband was a more credible witness than her, wife expends considerable effort attempting to persuade us that the determination is also “unreasonable.” But this argument, which is really no different from the one we just rejected, is also defeated by the “conflicting evidence” rule. As indicated, under that rule, an appellate court will resolve all evidentiary conflicts—whether presented by oral testimony or written declarations—in favor of the respondent and affirm so long as the evidence favoring respondent is sufficient to support the judgment. The appellate court may not reweigh the evidence, as the weighing of the evidence is a function that lies exclusively with the trial court. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 479; Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 544.) Deference to the factual determinations of the trial court are most obviously appropriate when, as here, they rest heavily on an assessment of credibility.
First, she argues, if, husband came to the conclusion that the marriage was irrevocably broken after talking to his tax preparer, as he testified, “it would seem reasonable that the tax preparer . . . would have been called as a witness” to confirm the events husband described. Furthermore, if husband came to this conclusion in April of 1995, he would certainly have reaffirmed this position at some point during the next 15 [sic] years, but never did. Nor, wife claims, did husband satisfactorily contradict her “more plausible” explanation of why her name was not on title to the Las Villas Court property, namely that her poor credit rating would have disqualified the couple for a loan.
DISPOSITION
The judgment, which is amply supported by the evidence, is affirmed. Respondent is awarded costs on appeal.
We concur: Haerle, J., Richman, J.