Filed 11/6/13 Marriage of Harrison CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


In re Marriage of KEVIN F. and LINDA C.
HARRISON.

KEVIN F. HARRISON,
                                                                       G046942
     Respondent,
                                                                       (Super. Ct. No. 08D000001)
         v.
                                                                      OPINION
LINDA C. HARRISON,

     Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Claudia
Silbar, Judge. Affirmed.
                   Law Office of Ronald B. Funk and Ronald B. Funk for Appellant.
                   Kevin F. Harrison, in pro. per., for Respondent.


                                          *                  *                  *
              Appellant Linda C. Harrison (wife) appeals from a judgment of dissolution
of her marriage to Kevin F. Harrison (husband). She raises only one issue, that there is
insufficient evidence to support the date of separation selected by the trial court. Based
on wife’s failure to fully set out all the material facts as to the date of separation and the
presumption the court’s decision was supported by substantial evidence, we affirm.


                                 PROCEDURAL HISTORY


              We present the procedural history here and set out the facts presented in the
briefs in the discussion portion.
              Husband filed the petition for dissolution in this action in January 2008. He
claimed a separation date of June 15, 2003. In wife’s response to the petition the date of
separation was shown as “to be determined.” In her testimony and closing argument she
asserted a separation date of December 2008.
              Wife had previously filed a petition in January of 2007, of which the court
took judicial notice, that showed a separation date of January 8, 2007. Wife testified that
“immediately” after she signed the petition, she notified her lawyer she did not want to
proceed.1 That petition was dismissed in August 2007.
              After a two-day hearing the court found the date of separation “that best
fit[] the totality of the circumstances” to be January 8, 2007. This was what wife stated
was the date of separation in her petition filed in January 2007. In reaching its decision
the court evaluated the testimony of both parties and the documentary evidence. It noted
the case was “factually unusual.”
              It found the parties had had no intimate relationship for years before that
date. Wife had been involved in a serious relationship with another man, Steve

       1 Wife was in propria persona at the time of the hearing on this issue although she
had had at least three attorneys prior thereto.

                                               2
McClenahan. Although this in itself does not prove a separation under the totality of
circumstances it supports the only logical conclusion. There were six to nine months
worth of hotel receipts in 2006 showing wife as McClenahan’s fiancée, and she signed a
lease, as a fiancée, to share a residence with McClenahan. The court also relied on a
receipt from a hotel in Cabo San Lucas in February 2006 listing the occupants as Steve
and Linda McClenahan. There were also various itineraries of “trips and activities” for
McClenahan and wife.
              The court relied on several e-mails sent by McClenahan to wife that
showed he had “detailed knowledge” about the parties’ relationship in which he gave
wife advice, including one dated December 2005 advising her about custody, visitation,
and financial issues. In December 2005 McClenahan sent husband an e-mail stating wife
was going to divorce husband and marry him. In May 2006 wife and McClenahan
opened a joint checking account.
              The court put all of these facts together to show wife’s subjective intent to
leave marriage. The filing of the petition was the objective demonstration of that
subjective intent.
              In light of wife’s argument there was a reconciliation, the court found to the
contrary. When wife broke off her relationship with McClenahan, husband “had already
given up” and from his point of view the marriage was over.
              Wife filed a motion for reconsideration as to the date of separation, which
the court denied.


                                      DISCUSSION


1. Standard of Review and General Principles
              Wife contends there is insufficient evidence to support the court’s finding
as to the date of separation. “Date of separation is a factual issue to be determined by a

                                             3
preponderance of the evidence. [Citation.] ‘Our review is limited to determining
whether the court’s factual determinations are supported by substantial evidence and
whether the court acted reasonably in exercising its discretion.’ [Citation.]” (In re
Marriage of Manfer (2006) 144 Cal.App.4th 925, 930.)
              When a party makes a claim of insufficiency of the evidence we begin with
the presumption the judgment is correct. (Cahill v. San Diego Gas & Electric Co. (2011)
194 Cal.App.4th 939, 956.) We may not reweigh or resolve conflicts in the evidence or
redetermine the credibility of witnesses. (Citizens Business Bank v. Gevorgian (2013)
218 Cal.App.4th 602, 613.) We liberally construe the court’s findings of facts, whether
express or implied. (Ibid.) Even the testimony of a single witness may be sufficient.
(Ibid.; Evid. Code, § 411.) And the court may believe part of a witness’s testimony and
disbelieve another part. (Citizens Business Bank v. Gevorgian, supra, 218 Cal.App.4th at
p. 613.)
              California Rules of Court, rule 8.204(a)(2)(C) requires that an opening brief
must “[p]rovide a summary of the significant facts limited to matters in the record.” Wife
has failed to do so, setting out very few facts as to the date of separation in the section
entitled “Factual and Procedural History.” (Capitalization, boldface, and underlining
omitted.) Although she does recite some facts in the argument portion of the brief, they
are completely one-sided and do not include the evidence supporting the court’s decision
or husband’s position.
              Because wife is challenging the sufficiency of the evidence, we may
consider her failure to present all material facts as forfeiting the argument. “‘A party who
challenges the sufficiency of the evidence to support a particular finding must summarize
the evidence on that point, favorable and unfavorable, and show how and why it is
insufficient. [Citation.]’ [Citation.] ‘[W]hen an appellant urges the insufficiency of the
evidence to support the findings it is [her] duty to set forth a fair and adequate statement
of the evidence which is claimed to be insufficient. [She] cannot shift this burden onto

                                              4
respondent, nor is a reviewing court required to undertake an independent examination of
the record when appellant has shirked [her] responsibility in this respect.’ [Citation.]”
(Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409.)
              If an appellant fails to fulfill this burden we may consider the argument
forfeited. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.) And we are “‘entitled to
indulge in a presumption that the evidence sustains the determination of the trial court.’
[Citations.]” (Estate of Hilton (1996) 44 Cal.App.4th 890, 922.)
              Although we elect not to forfeit wife’s argument, we do rely on the
presumption the evidence was sufficient. None of the favorable evidence wife raises
affects our decision.


2. Sufficiency of the Evidence
              There are two components to determining a date of separation: one or both
spouses must have a subjective intent to dissolve the marriage and that intent must be
manifested with objective conduct. (In re Marriage of Norviel (2002) 102 Cal.App.4th
1152, 1158-1159.) The court laid out several pieces of evidence in support of its
determination the date of separation was January 8, 2007.
              Wife makes two intertwined arguments challenging this date. She claims
January 2007 was a “compromise” date, alleged by neither party. And she asserts there is
no evidence to support it. We are not persuaded
              First, wife fails to cite to any authority that limits the court to a finding that
the date of separation must be proposed by a party. Recitals in pleadings are “probative
but not conclusive.” (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter
Group 2013) ¶ 8:114, p. 8-37; see In re Marriage of Umphrey (1990) 218 Cal.App.3d
647, 656-657 [court not required to accept date of separation set out in property
settlement agreement].)



                                               5
              The mere fact the date the court selected was set out in the first petition,
which was subsequently dismissed, does not discredit the court’s decision. Moreover that
the court might have urged the parties to settle on a separation date “in the 2006 range” or
advised during the hearing it was considering a date in 2006 or 2007 does not invalidate
the court’s finding.
              Second, wife has not overcome the presumption that the court’s finding is
supported by the evidence. Wife points to evidence she believes supports her position,
maintaining it is undisputed. This argument fails. The evidence is disputed and it is not
our function to reevaluate it.
              For example, wife asserts she resided in the family home “[e]xcept for a
brief period in early 2008” until the order for her to vacate in December of that year. She
testified when she returned in April 2008 she and husband “tried to ‘work our marriage
out for several months.’” But, as wife acknowledged, husband denied both the April 10
date and that he engaged in any type of reconciliation effort. Wife’s claim that her
testimony is more credible than husband’s violates a basic principle of the standard of
review, i.e., assessment of credibility is the trial court’s function, not ours.
              Wife also asserts husband based his alleged date of separation on her
subjective intent. But husband testified several times about his own intent that the
marriage was finished, at least by January 2007.
              Wife additionally relies on a question she asked of husband at the hearing
about a statement in a declaration (not produced) that even though he had filed a
dissolution petition, he stated “‘we don’t want to get divorced.’” Husband countered
with testimony he had made similar statements in an attempt to keep her calm given her
emotional instability. Husband points out the court had previously observed and noted
this problem and ordered she be psychologically evaluated. Wife was also found to have
perpetrated domestic violence.



                                               6
              Wife raises several additional pieces of evidence, but we need not discuss
them in light of her failure to present all material facts. In any event, husband
contradicted each one of them.
              In sum, wife has not met her burden to set out all material facts, whether
favorable or unfavorable, nor has she overcome the presumption that there is sufficient
evidence to support the court’s finding.


                                      DISPOSITION


              The judgment is affirmed. Husband is entitled to costs on appeal.




                                                  THOMPSON, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



FYBEL, J.




                                              7
