Opinion
E082506
10-10-2024
In re the Marriage of ROBERT BASSLER and NATALIE PANOSSIAN-BASSLER. v. NATALIE PANOSSIAN-BASSLER, Respondent. ROBERT BASSLER, Appellant,
Westover Law Group and Andrew L. Westover for Appellant. Natalie Panossian-Bassler, in pro. per., for Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. SWD1700586 Mark Mandio, Judge.
Westover Law Group and Andrew L. Westover for Appellant.
Natalie Panossian-Bassler, in pro. per., for Respondent.
OPINION
MENETREZ, J.
This appeal arises from the ongoing marital dissolution proceeding of Natalie Panossian-Bassler (Panossian) and Robert Bassler. On appeal, Bassler challenges the sufficiency of the evidence supporting the trial court's ruling concerning the date of separation. We affirm.
BACKGROUND
Bassler and Panossian were married in January 2013. They have one child, who was born in November 2013. In March 2017, Bassler petitioned for dissolution of the marriage. In the petition, Bassler asserted that he and Panossian separated on August 6, 2015. Panossian disputed the date of separation, claiming instead that the couple separated on March 24, 2017, about two weeks after Bassler filed the petition.
The court held a bifurcated trial over the course of several months to determine the date of separation. Both Bassler and Panossian testified, and witnesses testified on their behalf. Before trial, Bassler filed a declaration with attached exhibits, which was admitted at trial. Panossian filed a responsive declaration, but it is not included in the record on appeal. In addition, each party introduced nearly 100 exhibits during trial. The record on appeal contains six of those exhibits.
The trial court found that Panossian and Bassler were separated "at least by" June 2, 2016, so the court found June 2, 2016, to be the date of separation. The court based its determination on the following evidence: (1) Bassler moved out of the marital home in January or February 2016 and never returned; (2) Panossian sent a financial advisor an email on June 2, 2016, in which she wrote that she and Bassler were "currently separated," so she "would rather discuss [her] personal financial situations with [the advisor] without [Bassler]"; and (3) Panossian and Bassler continued to have sexual relations in February 2016 and "possibly thereafter."
In reaching its conclusion, the court acknowledged that the separation had been a "kind of a slow motion crackup or breakup" and that the conduct of both spouses had previously shown that they were contemplating ending the marriage-Bassler had hired a family law attorney to file divorce paperwork, and Panossian had sent divorce paperwork to Bassler. The court also acknowledged that there was evidence that Panossian still did not believe that she and Bassler were separated when she sent the email to the financial advisor on June 2, 2016. The court explained that it did not credit Panossian's testimony that the June 2, 2016, email was just meant to embarrass Bassler and did not signify her belief that they were actually separated. The court explained that it did not believe that Panossian's account provided "the most likely interpretation" of that message. The court reasoned that because Panossian was talking to a third-party financial advisor about starting to separate the couple's finances, "the more likely explanation is she understood at least by June 2, 2016, they were separated."
DISCUSSION
Bassler argues that the evidence is insufficient to support the trial court's determination that he and Panossian separated on June 2, 2016. He contends that the trial court "ignore[d] the balance of the overwhelming evidence that supports the August 6, 2015 Date of Separation." The argument is without merit.
"'Date of separation' means the date that a complete and final break in the marital relationship has occurred, as evidenced by both of the following: [¶] (1) The spouse has expressed to the other spouse the intent to end the marriage[, and] [¶] (2) The conduct of the spouse is consistent with the intent to end the marriage." (Fam. Code, § 70, subd. (a).) Separation accordingly occurs when at least one of the parties "does not intend to resume the marriage and his or her actions bespeak the finality of the marital relationship." (In re Marriage of Hardin (1995) 38 Cal.App.4th 448, 451.) The trial court's determination of the date of separation is a factual finding. (In re Marriage of Manfer (2006) 144 Cal.App.4th 925, 930.) Consequently, we limit our review "to determining whether the court's factual determinations are supported by substantial evidence and whether the court acted reasonably in exercising its discretion." (In re Marriage of De Guigne (2002) 97 Cal.App.4th 1353, 1360.)
"A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness." (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) We accordingly presume "'that the record contains evidence to support every finding of fact.'" (In re Marriage of Fink (1979) 25 Cal.3d 877, 887 (Fink).) An appellant has the burden of providing an adequate record on appeal. (Jameson v. Desta (2018) 5 Cal.5th 594, 609.) An appellant challenging the sufficiency of the evidence is "'required to set forth in their brief all the material evidence on the point and not merely their own evidence. Unless this is done the error is deemed to be waived.'" (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; Fink, at p. 887.) "'It is incumbent upon appellants to state fully, with transcript references, the evidence which is claimed to be insufficient to support the findings.'" (Fink, at p. 887.) "The fact that there was substantial evidence in the record to support a contrary finding does not compel the conclusion that there was no substantial evidence to support the judgment." (Rayii v. Gatica (2013) 218 Cal.App.4th 1402, 1408 (Rayii).)
In challenging the trial court's ruling concerning the date of separation, Bassler has failed to address all of the material evidence that is both favorable and unfavorable to the trial court's factual determination. Instead, Bassler's opening brief describes and cites only the documentary and testimonial evidence that favors him. He does not describe, cite, or even acknowledge the evidence favorable to Panossian or to the trial court's ruling. For example, he does not cite or describe Panossian's testimony on the issue. Nor does he address why Panossian's June 2, 2016, email is insufficient to establish that was the separation date. Because Bassler has failed to cite or discuss the evidence supporting the judgment, we are compelled to reject as forfeited his challenge to the sufficiency of the evidence supporting the trial court's date of separation determination. (Fink, supra, 25 Cal.3d at pp. 887-888; Rayii, supra, 218 Cal.App.4th at p. 1408; L&S Framing, Inc. v. Occupational Safety & Health Appeals Bd. (2023) 93 Cal.App.5th 995, 1016, fn. 6.)
Bassler mentions in the opening brief that Panossian's therapist testified on her behalf. However, Bassler only addresses and supports with record citations testimony from the therapist that was favorable to Bassler.
In any event, substantial evidence supports the trial court's determination that Bassler and Panossian separated on June 2, 2016. According to Bassler's declaration, he moved out of the marital residence sometime after Panossian called law enforcement three times in 2015. He first moved into a rental property and then sometime in 2016 purchased a residence. Both Bassler and Panossian testified that they went together with their child on a trip to Solvang, California starting on February 20, 2016. During the trip, Bassler, Panossian, and their child stayed in the same hotel room, and Bassler and Panossian engaged in sexual relations. Bassler testified that they went to Solvang "within weeks of the time [he] left." The trial court could reasonably infer from this evidence that even though Bassler moved out of the marital home around early February 2016 the couple had not separated as a result of the move.
On June 1, 2016, the couple's financial advisor emailed them to schedule a meeting to discuss retirement. Panossian responded to the email the next day and copied Bassler on the response. She told the advisor that she would rather discuss her personal finances without Bassler present, because she and Bassler were "currently separated." The trial court could reasonably infer from that message that (1) Panossian's statement that she wanted to discuss her personal finances without Bassler communicated to him that she intended to end the marriage, and (2) the message constituted conduct consistent with that intent. (Fam. Code, § 70, subd. (a).) The email thus constitutes substantial evidence supporting the trial court's determination that Bassler and Panossian separated on June 2, 2016. (Ibid.) Bassler's argument that the record contains substantial evidence to support a contrary finding is irrelevant. (Rayii, supra, 218 Cal.App.4th at p. 1408.)
For the foregoing reasons, we conclude that Bassler's challenge to the sufficiency of the evidence supporting the trial court's determination regarding the date of separation fails.
DISPOSITION
The trial court's August 11, 2023, order determining that the parties separated on June 2, 2016, is affirmed. Panossian shall recover her costs of appeal.
We concur: RAMIREZ, P. J., McKINSTER, J.