Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. IND097515, Lawrence P. Best, Temporary Judge. Pursuant to Cal. Const., art. VI, § 21.
Michael L. Passmore, in pro. per., for Appellant.
No appearance for Respondent.
McKinster, Acting P.J.
This is an appeal by Michael L. Passmore (Passmore) from the judgment entered following a trial on his petition to dissolve his domestic partnership with Christian Dahl (Dahl) and distribute the partnership assets, if any. In that judgment the trial court found, among other things, that the parties had separated in June 2009, when Dahl moved out of the residence he and Passmore had shared since 1999; that 28 percent of the proceeds from the sale of the residence is an asset of the domestic partnership; and that 33 percent of Passmore’s 401K is a domestic partnership asset. Passmore challenges those findings and also challenges the trial court’s order (1) awarding the household furnishings to Dahl as his sole and separate property and (2) requiring Passmore to pay Dahl support of $300 per month for 18 months. Passmore also purports to challenge the trial court’s postjudgment order denying his motion to recover attorney’s fees from Dahl. We cannot address that issue because Passmore did not include it in his notice of appeal.
“A postjudgment order which awards or denies costs or attorney’s fees is separately appealable... and if no appeal is taken from such an order, the appellate court has no jurisdiction to review it. [Citation.]” (Silver v. Pacific American Fish Co., Inc. (2010) 190 Cal.App.4th 688, 693, citing, among other cases, Hardin v. Elvitsky (1965) 232 Cal.App.2d 357, 363 [“Since the notice of appeal limits the power of the reviewing court, an order from which an appeal has not been taken will not be reviewed.”].)
We conclude Passmore’s claims are meritless and therefore we will affirm.
FACTUAL AND PROCEDURAL SUMMARY
The pertinent facts are undisputed. Passmore and Dahl met in 1993, initially over the phone through a telephone dating service, and then in person when Dahl, who lived in California, went to visit Passmore who lived in Texas. Three to four weeks after Dahl’s visit, Passmore moved to California. Passmore and Dahl moved in together but according to Passmore, only as roommates; Dahl had his own bedroom. In 1999, Passmore purchased a house in his name only, but he and Dahl continued to live together. At Dahl’s suggestion in October 2005 they registered their domestic partnership but only according to Passmore for financial reasons, namely so that Dahl could get health insurance through Passmore’s employer and to save money on automobile insurance. In June 2008, Passmore told Dahl to move out because Passmore was tired of Dahl not paying rent.
Dahl did not move out. On March 30, 2009, Passmore filed a petition for dissolution of their domestic partnership. In June 2009, Passmore sought and obtained a temporary restraining order against Dahl and an order for Passmore to have exclusive possession of the house. Dahl moved out of the house in June 2009, after he was served with the so-called “kick out” order.
Trial on the distribution of domestic partnership assets began on November 30, 2009, and continued on December 9, 2009. Passmore and Dahl had each represented themselves to that point, but Passmore retained counsel to represent him at trial. Passmore was the only witness at trial. Dahl did not present any evidence. The trial court issued its ruling on submitted matter on December 22, 2009. We recount the details of the trial court’s ruling in our discussion of Passmore’s challenges to those rulings in this appeal.
DISCUSSION
Passmore, as noted previously, challenges nearly every factual finding the trial court made in support of its various orders distributing the assets of the domestic partnership. Although he was represented by counsel during trial, Passmore represents himself in this appeal. Many of the claims Passmore asserts on appeal reflect his lack of knowledge regarding both legal procedure and substantive legal principles. For example, in challenging the trial court’s finding regarding the value of the domestic partnership’s interest (hereafter referred to as the community interest) in the residence, Passmore faults the trial court for not obtaining an appraisal of the residence. That assertion, along with others set out in his brief, reflects Passmore’s apparent fundamental misconception of the trial court’s role. The trial court does not obtain evidence; that is the responsibility of the parties to the litigation. The trial court’s role as a neutral arbiter of the facts is to rule on the admissibility of the evidence the parties present, if an objection is made, and to determine the facts of the case based on the evidence presented. In short, Passmore was obligated to obtain an appraisal of the property if he believed that evidence was pertinent to assessing the value if any of the community interest in the residence. That said, we address Passmore’s various claims of trial court error, and we begin with the standard by which we review challenges to the sufficiency of the evidence.
Dahl did not file a respondent’s brief.
1.
STANDARD OF REVIEW
“‘“When a finding of fact is attacked on the ground that there is not any substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding of fact.” [Citations.] [¶] ‘“It is well established that a reviewing court starts with the presumption that the record contains evidence to sustain every finding of fact.” [Citations.]’” (In re Marriage of Slivka (1986) 183 Cal.App.3d 159, 162.) “Additionally, all factual matters are to be viewed most favorably to the prevailing party and in support of the judgment; all issues of credibility are for the trier of fact. [Citation.] ‘“The testimony of a witness, even the party himself, may be sufficient’ [to support a judgment].’ [Citations.] All conflicts must be resolved in favor of the respondent and all reasonable inferences indulged in to uphold the judgment. [Citation.]” (Id. at p. 163.)
2.
ANALYSIS
A. Domestic Partnership
Passmore first contends that the evidence does not support the trial court’s finding that a domestic partnership existed. Consistent with his assertion that he and Dahl were just roommates, Passmore notes the absence of evidence, such as a public commitment ceremony. Passmore’s assertion notwithstanding, the evidence presented in the trial court includes the certificate of registered domestic partnership between Passmore and Dahl dated October 25, 2005. Although Passmore claimed in the trial court as he does in this appeal that he was misled by Dahl and that he signed the domestic partnership document for financial reasons only (to obtain medical insurance for Dahl through Passmore’s employer), the trial court was not required to believe that testimony. On the issue of witness credibility we must defer to the trier of fact, which in this case was the trial court judicial officer. In addition, we resolve all conflicts in the evidence in favor of the respondent. (In re Marriage of Slivka, supra, 183 Cal.App.3d at p. 163.) In short, the certificate of registered domestic partnership was sufficient evidence to support the trial court’s finding that Passmore and Dahl had been domestic partners since October 25, 2005.
B. Date of Separation
Next, Passmore contends the evidence does not support the trial court’s finding that June 2009 was the date he and Dahl separated. The trial court relied on the date Dahl moved out of the house in response to the order Passmore had obtained giving him exclusive possession of the residence. In challenging the trial court’s finding, Passmore contends that he intended the relationship to be over in June 2008 and at the very latest the parties separated in July 2008, when Passmore became involved in another relationship.
In In re Marriage of Hardin (1995) 38 Cal.App.4th 448 (Hardin), our colleagues in Division Three of this court discussed both the significance of the date of separation in a dissolution proceeding as well as the evidence pertinent to establishing that fact. We can do no better here than to quote liberally from that opinion. “In many dissolution proceedings, the date of separation is a critical fact affecting the parties’ rights to property and income. Nevertheless, the Legislature has neither defined ‘date of separation’ nor specified a standard for determining it. The only statutory reference to this term is found in Family Code section 771 which provides: ‘The earnings and accumulations of a spouse... while living separate and apart from the other spouse, are the separate property of the spouse.’” (Hardin, at pp. 450-451, fn. omitted.) “Since the Legislature has failed to provide guidance, we look to case law defining the date of separation. In Makeig v. United Security Bank & Trust Co. (1931) 112 Cal.App. 138, 143, the court held living separate and apart is a ‘condition where the spouses have come to a parting of the ways and have no present intention of resuming the marital relations and taking up life together under the same roof.’ [Citation.] This definition was further amplified in In re Marriage of Baragry (1977) 73 Cal.App.3d 444, 448: ‘The question is whether the parties’ conduct evidences a complete and final break in the marital relationship.’ [Citations.]” (Hardin, at p. 451, emphasis omitted.) “In In re Marriage of von der Nuell (1994) 23 Cal.App.4th 730, the court combined the Makeig and Baragry definitions. ‘[B]ecause rifts between spouses may be followed by long periods of reconciliation, and the intentions of the parties may change from one day to the next, we construe Baragry to hold legal separation requires not only a parting of the ways with no present intention of resuming marital relations, but also, more importantly, conduct evidencing a complete and final break in the marital relationship.’ [Citation.]” (Hardin, at p. 451, emphasis omitted.)
“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.” (Hardin, supra, 38 Cal.App.4th at p. 451.) “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. The ultimate test is the parties’ subjective intent and all evidence relating to it is to be objectively considered by the court.” (Hardin, at p. 452.)
In this case the trial court found the parties separated in June 2009, which Passmore acknowledges is the date Dahl moved out of the house after he was served with the order awarding Passmore exclusive possession of that residence. The only other evidence presented at trial that was pertinent to establish the date of separation was Passmore’s testimony that on June 17, 2008, he told Dahl to move out of the house. Despite that testimony, the evidence is undisputed that Dahl did not move out of the house until a year later and during that year Passmore financially supported Dahl.
Passmore cites a declaration to show he was involved with another man in July 2008, and therefore intended at that time to separate permanently from Dahl. That declaration was not presented as evidence at trial; Passmore submitted it to support his motion for new trial.
Based on that testimony Passmore moved to amend the petition of dissolution to allege June 17, 2008, as the date of separation. The trial court granted that motion after Dahl stated he had no objection. Dahl also offered that he thought the date was November 2008, but he was not testifying under oath at the time he made that comment.
Passmore’s testimony regarding the date of separation conflicts with the evidence that Dahl did not move out of the home he and Passmore shared until June 2009. In order to make a finding regarding the date of separation, the trial court had to resolve that conflict. The trial court did so in this case by finding that June 2009 was the date the parties separated. On appeal, we defer to the trial court’s resolution of conflicting evidence. As previously discussed our function is to determine whether the trial court’s findings are supported by substantial evidence. The trial court’s finding that the parties separated in June 2009 is supported by the evidence that Dahl moved out of the house he and Passmore shared in June 2009 after Passmore obtained an order for exclusive possession.
C. Community Interest in Residence
Passmore challenges the trial court’s finding that the community acquired a 28 percent interest in the residence which the trial court valued based on the profit generated from the sale of that residence. In Passmore’s view the trial court’s “statement of decision” was inadequate because the trial court failed to consider certain unspecified evidence, and did not have before it other evidence, such as evidence regarding the value of the property at the beginning of the domestic partnership, necessary to value the community interest.
At the outset we note that the trial court denied Passmore’s posttrial request under Code of Civil Procedure section 632 for a statement of decision. Although the pertinent clerk’s minute order indicates that the trial court’s ruling on that motion is attached and incorporated by reference, that ruling is not included in the clerk’s transcript. Passmore does not challenge the trial court’s denial of his request for a statement of decision.
In any event, the trial court’s “Ruling on Submitted Matter” includes sufficient facts to support the trial court’s findings. With respect to the residence, the trial court stated in its ruling, “The residence was purchased by [Passmore] in May 1999 and sold in November 2009. The proceeds from the sale of the house were approximately $60,400. [Passmore] paid a down payment of $3,700 from his separate property. [Passmore] is entitled to reimbursement of his down payment from the proceeds of the sale of the residence, leaving $56,700. [Passmore] made mortgage payments from his salary during the domestic partnership. No clear evidence was presented as to the value of the residence at purchase, or at the date of separation. No evidence was presented as to how much the residence sold for. No clear evidence was presented as to how much was paid on the residence during the domestic partnership. Based on the date of purchase, the date of the domestic partnership, the date of separation, and the date of sale, the community acquired an approximate 28% interest in the residence: $15,876. [Dahl] is entitled to one-half of the community interest: $7,938. The remaining proceeds are the sole separate property of [Passmore].”
Passmore challenges the trial court’s finding by claiming that the trial court did not have the information necessary “to make a ruling under the popularly used in California used [sic] Moore-Marsden rule, ” which Passmore contends is applicable in this case. As previously explained, if the trial court lacked necessary evidence, Passmore is responsible for that oversight. The trial court was required to make a determination based on the evidence actually presented at trial. Although Passmore contends the residence was worth less at the time of separation than at the beginning of the domestic partnership, he did not present evidence at trial to support that claim. Because Passmore did not present evidence to show the value of the house on the date of separation in June 2009, the trial court was limited to calculating the value of the community interest in that residence based on the sale price of the house in November 2009.
In re Marriage of Moore (1980) 28 Cal.3d 366; In re Marriage of Marsden (1982) 130 Cal.App.3d 426. “Generally, ‘[w]hen community property is used to reduce the principal balance of a mortgage on one spouse’s separate property, the community acquires a pro tanto interest in the property. [Citations.] This well-established principle is known as “the Moore/Marsden rule.” [Citations.]’ [Citation.]” (In re Marriage of Nelson (2006) 139 Cal.App.4th 1546, 1552, fn. omitted.)
Passmore claims that the purchase price of the house is included in Dahl’s community and quasi-community property declaration. Although the purchase price is not necessarily relevant, we note that Passmore does not include a record citation to the declaration in question. Moreover, although we located the pertinent declaration, it does not include the purchase price of the house.
To the extent Passmore claims the residence was his sole and separate property, he is incorrect. According to the Moore/Marsden rule previously quoted and on which Passmore relies, the community acquired a pro tanto interest in the residence to the extent community assets were used to pay down the mortgage which presumably was an obligation only Passmore owed. Passmore’s income during the domestic partnership is community property. (See Fam. Code, § 760 [“Except as otherwise provided by statute, all property, real and personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.”].) Passmore’s community property income was used to pay the mortgage on the residence over the course of the domestic partnership. As a result, the domestic partnership acquired an interest in the residence.
D. Community Interest in 401K
In its ruling the trial court found that Passmore opened a 401K in approximately 1998 and made regular contributions to the 401K during the domestic partnership: “Based on the date the plan started, the date of domestic partnership, and the date of separation, the community acquired an approximate 33% interest in the plan. The value of the plan including the loan taken by [Passmore] as of June 2009 was $37,223.81. The community interest is thus $12,283.86. Each party is entitled to one-half of the community interest: $6,141.93. [Passmore] is awarded the 401k as his sole separate property. [Passmore] is directed to pay [Dahl] an equalization payment of $6,141.92.”
In challenging this finding and order, Passmore raises the same issues previously discussed—that the 401K is not a community asset; that he and Dahl were only roommates, not domestic partners; that the trial court did not have enough evidence to determine the value of the 401K; and in any event the trial court used the wrong date as the date of separation. We have addressed each of these issues in the context of Passmore’s previous claims and therefore will not address them again here. For the reasons discussed above we conclude substantial evidence supports the trial court’s finding and order with respect to the 401K. Simply stated, the community acquired an interest in the 401K to the extent community assets, i.e., Passmore’s income during the domestic partnership, were deposited into the plan. Dahl is entitled to one-half of the community interest, Passmore’s contrary claims notwithstanding.
Passmore relies on these same assertions, e.g., that he and Dahl were roommates not domestic partners, to argue that In re Marriage of Brown (1976) 15 Cal.3d 838 “is not applicable in this case.” We agree. That case held that the community acquires an interest in a spouse’s nonvested pension benefit. This case involves a 401K, which unquestionably is an asset of the community to the extent contributions to the 401K are made from income earned during the domestic partnership because that income is community property.
E. Household Furnishings Finding
In the ruling on submitted matter the trial court found that no evidence was presented at trial on the value of the household furnishings. The trial court awarded the household furnishings to Dahl as his sole and separate property. The trial court also ordered Dahl to reimburse Passmore for the expenses he incurred in moving and storing those furnishings. Passmore contends that Dahl valued the household furnishings at $16,000 in his declaration of community and quasi-community property assets and therefore the trial court should have awarded Passmore half the value of those furnishings.
Passmore did not assert any claim at trial with respect to the household furnishings, and therefore did not present any evidence on the issue. We assume he did not assert a claim to the household furnishings because he and Dahl had divided the furnishings in a manner acceptable to each of them. According to Passmore’s statement of disputed issues and facts at trial, the only unresolved issues were whether Dahl had an interest in the residence, whether Dahl was entitled to support from Passmore, whether Passmore should have sole custody of the dog, and whether Dahl should reimburse Passmore for the expense incurred in moving and storing Dahl’s personal property after “termination of the Domestic Partnership.”
We construe the trial court’s order with respect to the household furnishings to refer to those household furnishings Passmore had moved from the house and placed in storage for Dahl. The trial court retained jurisdiction over the household furnishings issue. If there are household furnishings over which the parties still cannot agree, they may apply to the trial court for assistance.
F. Support Award
The trial court ordered Passmore to pay support to Dahl of $300 per month for a period of 18 months, from January 1, 2010 until June 30, 2011, after “[c]onsidering all of the factors set forth in Family Code section 4230.” In the ruling on submitted matter, the trial court cited the following facts as the basis for the award: “[Passmore] is the Director of Catering at Jensen’s Finest Foods. [Dahl] is unemployed. [Dahl] has worked in real estate, the hotel industry, and catering. [¶] Neither party’s earning capacity was impaired by periods of unemployment due to domestic duties. [Dahl] claimed he took care of the household. [¶] Neither party contributed to the ascertainment of education, training, etc. by the other party. [¶] [Passmore] averaged $3,790 per month, but earned $2,210 for the most recent month. [Dahl] reports no current income. [¶] There was no evidence presented on the standard of living during the domestic partnership. [¶] [Passmore] reports real property valued at $37,211, and debt of approximately $30,000. [Dahl] reports no assets, and debt of approximately $65. [¶] The domestic partnership lasted approximately three years, eight months, from October 2005 to June 2009. [¶] There are no dependent children. [¶] [Passmore] is 40 years old, is HIV positive, and has had gall bladder problems. [Dahl] is 46 years old, and has had back problems. There was no evidence [Dahl] is unable to work. [¶] [Passmore] filed a request for a domestic violence restraining order against [Dahl] in June 2009. The temporary orders were dissolved when [Passmore] failed to appear at the hearing on the temporary order. [¶] The tax consequences have been considered. [¶] The balance of hardships has been considered. [¶] The domestic partnership was of short duration. [¶] There is no evidence of a criminal conviction on the part of either party.”
Passmore challenges the trial court’s findings and resulting order of support on various grounds, all of which are meritless. First, he contends that the trial court failed to consider Dahl’s income and expense declaration “stating employment, ” but Passmore does not support that assertion with a record citation to the document in question. As a result, he has failed to demonstrate error. Moreover, we have reviewed Dahl’s income and expense declarations. Only the one filed on October 29, 2009, reflects income of $400 earned in April 2009 from self-employment doing house cleaning. Passmore did not present evidence in the trial court to show that Dahl had other employment or that he was employed at the time of trial.
In a posttrial motion to modify the support order, Passmore did show Dahl was employed and had income. The trial court granted Passmore’s modification request. In its ruling on that motion, the trial court stated that Dahl had not been “candid when he testified during the trial that he was unemployed.” The court found that Dahl has worked since the trial but “is not being candid about the work or the remuneration received.” Therefore, the trial court found changed circumstances warranted modifying the amount of support to zero effective July 1, 2010. As a result of the modification, Passmore’s actual obligation to pay support to Dahl lasted six months, from January 1, 2010 to June 1, 2010.
Next, Passmore contends the trial court should have required Dahl to produce “requested” documents showing that he was looking for employment. “When evidence exists that the party to be supported has unreasonably delayed or refused to seek employment consistent with her or his ability... that factor may be taken into consideration by the trial court in fixing the amount of support in the first instance or in modification proceedings.” (In re Marriage of Rosan (1972) 24 Cal.App.3d 885, 896.) Here again, Passmore had not included a citation to the record to support the inference that he had asked Dahl to produce documents or any other pertinent evidence. The trial court, as previously and repeatedly stated, does not obtain evidence on a party’s behalf.
We also reject Passmore’s claim that the trial court failed to “establish a standard of living during marriage.” As set out above, the trial court did not make a finding on the standard of living during the domestic partnership because neither Passmore nor Dahl presented evidence at trial on that issue.
Passmore next contends that the trial court did not give “full consideration” to Passmore’s health, and therefore did not “take an informed stance on the quality of life a person living with HIV has or the affects of the disease.” Again, Passmore does not cite the record on appeal to show that he presented evidence regarding those issues at trial. The only evidence presented at trial was that Passmore is HIV positive. The trial court, as noted above, made a finding to that effect. The trial court did not consider any other aspect of Passmore’s health related issues, because Passmore did not present evidence on those issues at trial.
To support his motion for new trial, Passmore did submit a declaration from his physician. But that evidence was not presented at trial and therefore we cannot fault the trial court for failing to consider its significance.
Passmore also complains that the trial court did not consider the support he paid to Dahl after their separation. Passmore’s claim is based on his persistent view that the parties separated in June 2008, rather than in June 2009, as the trial court found in this case. Similarly, Passmore claims the trial court failed to consider that the domestic partnership was obtained by fraud. To the extent Passmore actually presented evidence at trial to support that claim, the trial court implicitly rejected it as evidenced by its finding, previously noted, that the parties’ domestic partnership began on October 25, 2005, the date they registered their domestic partnership, and ended in June 2009 when Passmore obtained exclusive possession of the house.
Passmore takes issue with the trial court’s failure to specify a specific date in June of 2009 as the date of separation. In re Marriage of Tydlaska (2003) 114 Cal.App.4th 572, which Passmore cites to support his claim that “[t]he law also requires an exact date of separation” does not include such a holding; the case does not address any issue involving the date of separation. It involves modification of a spousal support order.
Passmore also faults the trial court for its purported failure to mention specific subdivisions of Family Code section 4320 in its ruling. The trial court addressed each subdivision set out in Family Code section 4320, Passmore’s claim notwithstanding. In short, Passmore has failed to show the trial court abused its discretion by awarding spousal support to Dahl.
DISPOSITION
The judgment is affirmed.
Passmore to bear his own costs on appeal.
We concur:, King J., Codrington J.