Opinion
G037548
5-24-2007
In re Marriage of FRANCOISE and KEVIN BLANCHARD. FRANCOISE BLANCHARD, Respondent, v. KEVIN WAYNE BLANCHARD, Appellant.
Bernard L. Endres for Appellant. No appearance for Respondent.
NOT TO BE PUBLISHED
Appellant Kevin Wayne Blanchard challenges a judgment in a marital dissolution action. We reject his arguments. When he participated in the trial, and only thereafter moved the court to dismiss the petition for dissolution for failure to prosecute, he was too late in bringing his motion. In addition, he has failed to meet his burden to show either that the trial court erred in its finding as to the date of separation or that the judgment should be reversed as lacking in conformity with the courts intentions. We affirm.
I
FACTS
Kevin Wayne Blanchard and Francoise Blanchard were married on July 26, 1995. They first separated in August 1998, when Francoise moved out of their home in Dayton, Ohio and returned to Southern California. At that time, Kevin was in the United States Air Force. He retired from the Air Force and took a job with Boeing in Washington, D.C. He took a reassignment to Southern California, where he moved around March 3, 1999.
"Hereafter, we refer to the parties by their first names, as a convenience to the reader. We do not intend this informality to reflect a lack of respect. [Citation.]" (In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1513, fn.2.)
Francoise filed a petition for dissolution of marriage on January 12, 2000. However, she did not pursue the petition. In November 2002, Kevin and Francoise purchased a new home together. They moved into the home on July 1, 2003.
Kevin admitted at trial that between 1999 and 2002 he and Francoise occasionally went out to movies or to dinner together. He also admitted that when he was living in Washington, D.C., she came to visit him once, and the two of them stayed together. Kevin further stated that he and Francoise went to Monterey together one weekend in 1999. He also sent her birthday cards.
Francoise filed an amended petition for dissolution of marriage on April 1, 2004, asserting a separation date of March 1, 2004. On January 6, 2006, Kevin filed a motion to dismiss the action, based on the purported failure of Francoise to bring the matter to trial within five years of filing. However, on February 9, 2006, he withdrew his motion, and on February 10, 2006, the matter was ordered off calendar.
Trial took place on February 14 and 15, 2006. The court ordered certain posttrial briefing. In his posttrial reply brief, Kevin asked the court to dismiss the action for failure to prosecute.
The court entered judgment on July 12, 2006. In the judgment, the court denied Kevins motion to dismiss. It also decreed the date of separation to be March 1, 2004. Kevin appeals.
II
DISCUSSION
A. Introduction:
Kevin argues: (1) the trial court erred in failing to grant his posttrial motion to dismiss; (2) the trial court erred in finding the parties separated on March 1, 2004; and (3) the judgment as entered should be reversed because it does not match the form of judgment the court ordered to be prepared. We address these arguments in turn.
B. Motion to Dismiss:
As indicated above, Francoise filed her original petition on January 12, 2000, but the trial did not commence until February 14, 2006. Kevin argues that the court was required to dismiss the action, whether on his motion or on its own. He cites Code of Civil Procedure sections 583.310, 583.360, and 583.161. Section 583.310 requires actions to be brought to trial within five years after commencement. Section 583.360 provides that the action, if not timely brought to trial, shall be dismissed on the motion of either the defendant or the court, and that dismissal is mandatory, absent a statutory exception to the contrary. Section 583.161, subdivision (b) provides an exception in the case of a marital dissolution action in which a spousal support order is in effect. Kevin insists that this exception is inapplicable, because Francoise failed to prove that a spousal support order was in effect.
Kevin omits to mention Code of Civil Procedure section 583.140, which provides: "Nothing in this chapter abrogates or otherwise affects the principles of waiver and estoppel." Kevin withdrew his motion to dismiss and did not raise the issue again until after the conclusion of trial. By that time, it was too late. "Where, as here, the litigation not only `progressed to . . . an advanced stage before a request for dismissal was made [citation], but trial had concluded, by his failure to object in a timely manner, appellant must be deemed to have waived his right to pursue a dismissal. We discern no error in the trial courts ruling." (Butler v. Hathcoat (1983) 146 Cal.App.3d 834, 840.)
C. Date of Separation:
Kevin argues that the trial court erred in finding the parties separated on March 1, 2004. He contends that Francoise left him on August 17, 1998 and that, for the purposes of Family Code section 771, subdivision (a), the parties lived separate and apart from that date until July 1, 2003, when they moved back in together.
Family Code section 771, subdivision (a) provides in pertinent part: "The earnings and accumulations of a spouse . . . while living separate and apart from the other spouse, are the separate property of the spouse."
The judgment provides: "The Date of Separation is March 1, 2004. The Court finds that the parties[] conduct did not evidence a complete and final break in the marital relationship until March 1, 2004 pursuant to [In re] Marriage of von der Nuell (1994) 23 Cal.App.4th 730." Kevin maintains that the court erred in applying that case.
The court in In re Marriage of von der Nuell, supra, 23 Cal.App.4th 730 stated: "The `little law [which] defines separation under [the statute] holds that "living separate and apart" refers to "that condition when spouses have come to a parting of the ways with no present intention of resuming marital relations." [Citation.] That husband and wife may live in separate residences is not determinative. [Citations.] The question is whether the parties conduct evidences a complete and final break in the marital relationship. [Citations.]" (Id. at p. 734, fn. omitted.)
Kevin objects to the language in the case that requires a complete and final break in the marital relationship. He asserts that the court should have applied In re Marriage of Norviel (2002) 102 Cal.App.4th 1152 instead. That case stated: "Drawing from the relevant judicial decisions, 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.]"
(Id. at pp. 1158-1159.) Kevin says that applying this intent and conduct test, rather than the complete and final break standard, the dates of separation should be as he urges.
However, Kevin overlooks the point that, in applying the conduct prong of the test, the court in In re Marriage of Norviel, supra, 102 Cal.App.4th 1152 implemented the complete and final break standard. It stated: "The real dispute in this case is `whether the parties conduct evidences a complete and final break in the marital relationship. (In re Marriage of Baragry (1977) 73 Cal.App.3d 444, 448 . . . .) Without such conduct, there can be no finding of separation. (Ibid.; accord, In re Marriage of von der Nuell, supra, 23 Cal.App.4th at p. 736 . . . .)" (In re Marriage of Norviel, supra, 102 Cal.App.4th at p. 1159.) The court in Norviel, then, approved the requirement that the parties conduct must demonstrate a complete and final break in the marital relationship.
As we recently noted in In re Marriage of Manfer (2006) 144 Cal.App.4th 925, "the statute does not define the `date of separation or specify a rule for determining it, and although there is no definitive authority setting forth a single standard to be employed or a comprehensive list of factors to be considered, a number of courts have attempted to enunciate guidelines." (Id. at p. 929.) "[W]e find the standard articulated by another panel of this court more than 10 years ago most helpful: `[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. There must be problems that have so impaired the marriage relationship that the legitimate objects of matrimony have been destroyed and there is no reasonable possibility of eliminating, correcting or resolving these problems. [Citation.] . . . `All factors bearing on either partys intentions "to return or not to return to the other spouse" are to be considered. [Citation.] No particular facts are per se determinative. The ultimate test is the parties subjective intent and all evidence relating to it is to be objectively considered by the court. [Citation.]" (In re Marriage of Manfer, supra, 144 Cal.App.4th at p. 930.)
Here, Kevin cites little evidence in support of his position. Rather, Kevin requests that this court review and "consider the factual and legal issues" reflected in 10 pages of his trial brief, 8 pages of his opening brief following trial, 15 pages of his reply brief following trial, and his 4-page pretrial declaration as included in the body of his motion to bifurcate. The majority of those pages of documentation consist of argument, not evidence. To the extent the cited pages in turn cite to the reporters transcript, we note the quotations from the reporters transcript are directed, at least in part, to matters irrelevant to the determination of the date of separation, such as testimony about a fight between Kevins daughter and Francoise. Kevin has violated rules of appellate procedure by failing to provide page point references. (Evans v. Centerstone Development Co. (2005) 134 Cal.App.4th 151, 166-167.) If he desired to direct this courts attention to particular portions of the referenced span of pages, he should have provided page point references.
To the extent we construe Kevins citation to the record, and his request that we "consider the factual and legal issues" reflected in the cited pages, as an implied argument that the record does not support the judgment, his argument is deemed waived. By citing only his own briefing, Kevin has presented a lopsided statement of the evidence and it is not the function of this court to search the record on its own. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.) "[A]n attack on the evidence without a fair statement of the evidence is entitled to no consideration when it is apparent that a substantial amount of evidence was received on behalf of the respondent. [Citation.] Thus, appellants who challenge the decision of the trial court based upon the absence of substantial evidence to support it `"are 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 waived." [Citations.] [Citation.]" (Ibid.)
D. Form of Judgment:
Following trial, Francoise presented a proposed judgment. Kevin objected to the same. The court held a hearing on the matter on June 5, 2006. At that time, the court recited certain changes to the proposed judgment into the record. The court ordered Francoises counsel to revise the proposed judgment to reflect the corrections and modifications so recited. Kevin contends that the judgment as entered should be reversed because it does not reflect those corrections and modifications.
Kevin cites more than 30 pages of the reporters transcript of the June 5, 2006 hearing that he says demonstrate his point. He then points out that the court ordered the judgment to include certain findings concerning a short-term marriage and the value of the marital residence, a provision concerning the termination of jurisdiction over spousal support, language regarding the vesting of certain stock options, and the deletion of six paragraphs of the proposed judgment, described by paragraph number, not content. Kevin then argues that the proposed judgment obviously was not changed as directed.
However, we are unable to fully determine which changes, if any, were made to the proposed judgment, because Kevin has not provided us with a copy of it, just as he has not provided us with copies of the objections he filed. (Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447-448 [judgment presumed correct and appellant must present adequate record for review].) We cannot determine, for example, whether the six paragraphs referenced by number were deleted, when we cannot compare the proposed judgment to the judgment as entered.
Furthermore, we notice that the June 5, 2006 ruling from the bench was not the final word concerning the form of the judgment. The court entered additional orders regarding the form of judgment, after the June 5, 2006 hearing. A July 5, 2006 minute order provides: "The court finds that this hearing was scheduled for the submission and signature of the judgment after trial. [¶] The court finds that a stipulated judgment has not been presented but both parties have filed documents in opposition to a proposed judgment and have introduced further issues. [¶] The court orders the hearing for submission of the judgment continued to [July 12, 2006]. The parties are ordered to submit a judgment reflecting this courts order. If there is a dispute each party is to file a judgment and the court will enter the most reasonable representation of the courts order. [¶] If there is no resolution to filing of the judgment the court will continue the matter every week until a judgment is submitted and approved." A July 12, 2006 minute order states: "The Court adopts the proposed judgment as prepared by [Francoises] counsel. Judgment is signed and filed."
The record thus reflects that, whatever direction the court gave from the bench on June 5, 2006, the parties continued to squabble over the form of the judgment and the court continued to await an appropriate judgment satisfactory to itself and, if possible, the parties. It warned the parties that it ultimately would choose a judgment it deemed satisfactory. Finally, the court adopted a proposed judgment submitted by Francoise. Whether this proposed judgment differed from the original proposed judgment that she submitted or not, we do not know. However, there is nothing in the record to indicate that the court inadvertently entered a judgment that did not satisfy its requirements. Rather, if nothing else, the court, in resolution of the matter, chose the judgment it found most satisfactory. Kevin has failed to demonstrate error. (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 766 [burden upon appellant to demonstrate reversible error].)
III
DISPOSITION
The judgment is affirmed. No costs are awarded on appeal.
We concur:
SILLS, P. J.
FYBEL, J.