Opinion
H050440
07-20-2023
In re the Marriage of CAYETANA GUZMAN-JERONIMO and FRANCISCO F. MORALES v. FRANCISCO F. MORALES, Respondent. CAYETANA GUZMAN-JERONIMO, Appellant,
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. 21FL001341)
Danner, J.
In this bifurcated marital dissolution action, appellant Cayetana Guzman-Jeronimo (Wife) challenges the trial court's determination that she and Francisco F. Morales (Husband) legally separated on June 1, 2004. She asserts this date is erroneous and the true date of separation is February 16, 2021. (Fam. Code, § 70, subd. (a).) Finding no error, we affirm.
Unspecified statutory references are to the Family Code.
I. FACTS AND PROCEDURAL BACKGROUND
These facts are taken from the trial court's statement of decision or are otherwise undisputed. In setting out the facts, we "indulg[e] all legitimate and reasonable inferences to uphold the court's decision." (In re Marriage of Lee & Lin (2019) 41 Cal.App.5th 698, 702 (Lee & Lin).)
Wife and Husband married on May 6, 1995. They purchased a house to which Husband took title in 2000 and which they used as the family residence. Their two children were born in 1998 and 2003, respectively. In 2004, Husband moved out of the family residence and into an apartment. The children lived with Wife at the family residence, although the children also visited Husband at his apartment. After he moved into the apartment, Husband spent three days each week with the children at the family residence.
The parties dispute whether and how often Husband stayed overnight at the family residence during the period when he was living in the apartment.
Wife told Husband in 2004 that he should see other people. Husband began dating other people in 2004, and Wife began doing so in 2012. Wife knew the marriage was over in 2006, but she stayed with Husband for the sake of their children.
Wife filed a dissolution petition in 2008 and never withdrew it. The parties did not divorce at that time because they could not agree on a financial settlement. Wife tried to reconcile with Husband, but he did not want to do so.
Husband and Wife attended events together and spent time together in the family residence for the sake of the children. Husband moved back into the family residence in 2013 because he lost his apartment, and the parties wanted to save money for college. Their youngest child turned 18 years old in 2021. Wife filed a second dissolution petition in April 2021.
During the marriage, Husband and Wife maintained separate financial accounts and divided financial obligations. They filed joint tax returns that listed the children as dependents.
The parties litigated the date of separation. Husband maintained the date was June 1, 2004, the date Wife listed as the date of separation in her first dissolution petition. Wife contended the legal separation occurred on February 16, 2021.
The trial court conducted a one-day hearing in 2022 in which both parties, one of their sons, and Husband's girlfriend testified. The trial was not reported. The court received a number of documents into evidence. Following the hearing and the submission of additional briefing, the trial court issued a proposed statement of decision, followed by a statement of decision. The trial court's written decision cited the governing statute, Family Code section 70, and quoted from and described relevant case law. It also summarized the witnesses' testimony and set out the court's principal factual findings.
The court acknowledged that the parties are "dedicated and loving parents," who wanted to ensure their children "grew up in a stable household and went on to college." Nevertheless, the court found that it "did not hear credible evidence from either party that after 2004 the parties intended to resume their marital relationship. Wife was clear in her testimony that after 2006 she knew that the marriage was over but that she wanted to raise the children in a home with a Mother and a Father. Neither of these parties engaged in conduct that was consistent with wanting to maintain the marital relationship."
The court rejected Wife's reliance on Marriage of Baragry (1977) 73 Cal.App.3d 444 (Baragry). It noted that Wife had told the husband to start seeing other people in 2004, knew the marriage was over in 2006, and filed for dissolution in 2008. The court highlighted, "[t]he decision in this case does not turn simply on the fact that the parties were seeing other people or not having sex with each other. The facts are far more complicated than that."
The court found Wife's testimony "inconsistent . . . in many ways" and, by implication, lacking in credibility. The court found that "Husband, in particular, was consistent with his words and his actions that there had been a final and complete break in the marriage." The court observed that attendance at events as a family is not inconsistent with Husband's conduct showing a final and complete break. It concluded, by a preponderance of the evidence, "[t]he facts set forth by both sides during their testimony supports a June 1, 2004 date of separation." On June 21, 2022, the court issued a written order finding the date of separation is June 1, 2004.
The trial court certified its order for immediate review, and this court granted Wife's motion to appeal the interlocutory decision. (Cal. Rules of Court, rule 5.392(d).) Husband has not participated in this appeal.
Because there is no respondent's brief, we "decide the appeal on the record, the opening brief, and any oral argument by the appellant." (Cal. Rules of Court, rule 8.220(a)(2).)
II. DISCUSSION
Wife contends the trial court erred in determining the date of separation. Family Code section 70, subdivision (a) (hereafter section 70(a)) defines" '[d]ate of separation'" as "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 [his or her] intent to end the marriage. [¶] (2) The conduct of the spouse is consistent with [his or her] intent to end the marriage." Further, "[i]n determining the date of separation, the court shall take into consideration all relevant evidence." Id., subd. (b).) The definition of" 'date of separation'" in section 70(a), enacted in 2016, "is consistent with case law interpreting and applying former section 771." (Lee & Lin, supra, 41 Cal.App.5th at p. 701.)
" '[T]he 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.'" (In re Marriage of Manfer (2006) 144 Cal.App.4th 925, 930 [interpreting former section 771], italics added & omitted.) "The ultimate question to be decided in determining the date of separation is whether either or both of the parties perceived the rift in their relationship as final. The best evidence of this is their words and actions." (In re Marriage of Hardin (1995) 38 Cal.App.4th 448, 453, italics omitted.)
"The date of separation is a factual issue established by a preponderance of the evidence. We review the trial court's determination for substantial evidence [citation], indulging all legitimate and reasonable inferences to uphold the court's decision." (Lee &Lin, supra, 41 Cal.App.5th at p. 702.) "We are bound by the trial court's interpretation of the facts. [Citations.] On appeal, we have no power to weigh or judge the effect of evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence. That is the province of the trial court." (In re Marriage of Liu (1987) 197 Cal.App.3d 143, 156.)
Wife challenges the trial court's determination of the date of separation, citing evidence supporting her preferred date. For example, Wife states that she and Husband "resided together in their family home for all 24 years of ownership," she prepared and served meals for husband for 24 years, and she washed and ironed his clothes for 24 years. Wife further asserts that Husband's testimony "cannot be relied upon" and lists various statements she contends lack credibility.
Wife's contentions in this court overlook the standards applicable to our review of the trial court's factual and credibility findings. Indeed, many of Wife's factual assertions and legal arguments in this court appear verbatim in her closing trial brief submitted to the trial court. But the trial court in its decision largely rejected Wife's account of the marriage.
Our review of whether substantial evidence supports the trial court's factual findings is hampered by our lack of a reporter's transcript. "A reporter's transcript may not be necessary if the appeal involves legal issues requiring de novo review. [Citation.] In many cases involving the substantial evidence or abuse of discretion standard of review, however, a reporter's transcript or an agreed or settled statement of the proceedings will be indispensable." (Southern California Gas Co. v. Flannery (2016) 5 Cal.App.5th 476, 483.) While the trial court summarized Wife's testimony in its statement of decision, it clearly rejected much of her account, characterizing it as inconsistent "in many ways."
Based on the limited record before us, Wife has not demonstrated that the trial court's determination that the date of separation is June 1, 2004, over Wife's asserted date of February 16, 2021, lacks sufficient evidentiary support. In making its determination, the trial court relied upon substantial evidence, including Wife's testimony that in 2006 she knew the marriage was over, Husband's romantic relationships with other people beginning in 2004 (at Wife's urging) and Wife's later romantic relationship, Husband's residence outside the family home between 2004 and 2013, Wife's 2008 dissolution petition, in which she identified the date of separation as June 1, 2004, the testimony that the reason the divorce did not then occur was financial, and Wife's failure to withdraw the 2008 dissolution petition.
Wife does not suggest any date other than February 16, 2021, as the date of separation.
These facts distinguish this case from Baragry, supra, 73 Cal.App.3d 444, the principal case relied upon by Wife. There, the evidence was undisputed that, after moving out of the family home, the husband did not tell the wife he was never coming back, neither party sought a divorce (id. at pp. 447-448), and the husband "maintained the facade of a marital relationship." (Id. at p. 448.)
While Wife's testimony in the trial court that she and Husband reconciled, traveled together, and introduced each other as Husband and Wife, could have supported a different factual conclusion as to the date of separation, the evidence on many of these points was controverted. The statement of decision indicates that the trial court did not credit Wife's account of the marriage.
Wife suggests the trial court erred in giving too much weight to the lack of a sexual relationship between the parties and too little to the marital objective of raising and financially providing for children of the marriage. But Wife has not shown that the trial court committed an error of law. She asks us to revisit the factual and credibility determinations of the trial court, which we have no authority to do on appeal.
Based on the record before us, we decide Wife has not carried her burden on appeal of demonstrating an error in the trial court's consideration of the evidence or application of the law.
III. DISPOSITION
The trial court's order on the date of separation is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Wilson, J.