Filed 5/20/13 Marriage of Haynes CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


In re the Marriage of CARMEN and
MELVIN HAYNES.

CARMEN HAYNES,
         Respondent,                                                     A135152
v.
                                                                         (Solano County
MELVIN HAYNES,                                                           Super. Ct. No. FFL112966)
         Appellant.


         Melvin Haynes, appearing in propria persona, appeals from a judgment dissolving
his marriage to Carmen Haynes and dividing the parties‟ property.1 He contends that
despite what he believed to be an agreement by the parties that the date of their separation
was December 18, 1993, Carmen was allowed to surprise him at trial by presenting
evidence and argument that the date of separation was actually “sometime in 2008” and
that the court erred by prohibiting him from rebutting this new theory. He also argues that
the court applied an incorrect legal standard to determine the date of separation and
ignored relevant evidence that supported an earlier date of separation. Finally, he argues
that the court erred in denying his motion for reconsideration, which relied on additional
evidence not presented at trial. The record demonstrates, however, that Melvin was given

1
  “As is customary in family law cases where the parties shared the same surname, we
refer to them by their first names for ease of reference, meaning no disrespect.” (In re
Marriage of Herr (2009) 174 Cal.App.4th 1463, 1466, fn. 1.)


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sufficient notice of Carmen‟s contention and that he did not object to her argument or
evidence at trial or request a continuance to present additional responsive evidence. The
trial court applied the proper standard in determining the date of separation and
substantial evidence supports the court‟s finding. For these reasons, among others, the
court did not err in denying Melvin‟s motion for reconsideration. Accordingly, we shall
affirm the judgment.
                             Factual and Procedural History
       The parties were married in July 1951. On January 19, 2010, Carmen filed a
petition for dissolution. The petition alleges that December 18, 1993 was the date of
separation. Melvin filed a responsive pleading in May 2010 that also indicated the date of
separation was December 18, 1993. In advance of trial, Carmen submitted a trial brief
reiterating that the date of separation was in 1993, but also noting that “[t]he date of
separation herein is uncertain as the parties continued to act (as to third parties) as
husband and wife well after their claimed date of separation.”
       At trial, evidence was presented establishing that between 1951 and 1993, the
parties attempted to separate a number of times but reconciled each time. In 1993, Melvin
moved out of the family home and the parties did not live together for any significant
period of time thereafter. Although disputed by Melvin, Carmen testified that after
Melvin moved out in 1993 the parties continued an intimate relationship, took family
vacations and attended family gatherings together, filed joint tax returns for a number of
years, engaged in business transactions together, and held themselves out to friends and
family as married. While Melvin testified that he believed the marriage was over when he
moved out in 1993, Carmen testified that she held out hope for a reconciliation until 2008
when she finally decided to end her marriage. She explained that in January 2008 she and
Melvin had travelled to Reno to celebrate his birthday but ended up in a confrontation
during which he tried to choke her. It was only after this incident that she told Melvin the
marriage was over and went to see a paralegal about filing for a divorce. Melvin
acknowledged that he went on the trip to Reno with Carmen, but denied choking her.



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       In closing argument, Carmen‟s counsel argued the 1993 “move-out” was a starting
point for the court‟s inquiry into the date of separation but that Melvin “availed himself
of the benefits, protections and savings of filing joint tax returns” for years after and that
there was evidence they behaved as a married couple until 2008. Counsel also argued that
the precise date of separation is not crucial because the parties were not dividing pensions
and that all of the parties‟ assets, including a ranch near Arbuckle, California, a motel and
a duplex, were either purchased with community funds prior to 1993 (the Arbuckle
ranch) or traceable to community funds (the motel and duplex). Melvin did not direct any
closing argument to the date of separation but rather argued as if it were established that
the date was in 1993. He argued that the motel and the duplex were purchased after 1993
and thus were clearly his separate property. As to the ranch, he argued that no community
funds were used in its purchase and, even if they were, Carmen signed an enforceable
quitclaim deed in 1995 making the ranch his separate property.
       On January 31, 2012, the court entered a judgment of dissolution. The court found
that the date of separation is “the day after [Melvin‟s] birthday in 2008.” The court found
further that most of the parties‟ assets were community property subject to an equal
division. The court found that the Arbuckle ranch was purchased in 1985 with
community funds and that the quitclaim deed Carmen signed in 1995 transferring her
interest in the ranch to Melvin should be set aside as the product of undue influence. The
court found that the motel and duplex were acquired prior to the parties‟ separation in
2008 and that community funds were used to acquire both assets.
       On February 9, 2012, Melvin filed a motion for reconsideration. In it he argued
that the court abruptly ended the trial without allowing him to “put on the rest of [his]
case” and that if he had been given the chance, he would have, among other things,
presented evidence that he was not with Carmen in Reno in 2008 and instead was on a
cruise with his girlfriend. He also argued that he was surprised by Carmen‟s challenge to
the date of separation and that he should have been given an opportunity to respond. The
trial court denied the motion for reconsideration, finding that it was both untimely and
without merit.


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       Melvin filed a timely notice of appeal.
                                          Discussion
1.     Melvin’s due process rights were not violated.
       Due process requires that a party to a dissolution proceeding be given adequate
notice and a “ „full and fair opportunity to present all competent and material evidence
relevant to the matter to be adjudicated.‟ ” (In re Marriage of Rothrock (2008) 159
Cal.App.4th 223, 235-236; see also Mathews v. Eldridge (1976) 424 U.S. 319, 333 [“The
fundamental requirement of due process is the opportunity to be heard „at a meaningful
time and in a meaningful manner‟ ”].)
       Contrary to Melvin‟s arguments on appeal, Carmen‟s trial brief provided ample
notice that the date of their legal separation would be at issue in the trial. The parties‟
pleading did not create a binding agreement as to the date of separation and Carmen was
not required to amend her petition prior to trial. (In re Marriage of Umphrey (1990) 218
Cal.App.3d 647, 659 [there is “neither a jurisdictional nor an equitable bar to the court‟s
consideration of evidence bearing on the actual date of separation, irrespective of the
recitations in the . . . petition”].)
       Likewise, the court did not abruptly or prematurely end the trial without giving
Melvin a full and fair opportunity to present his case. At the conclusion of Carmen‟s
testimony, the court clearly asked Melvin whether he had any other evidence to present
and he responded, “I have no more evidence.” After Carmen‟s counsel indicated that he
had no rebuttal evidence to present, the court asked the parties a few questions. When the
court‟s questioning broke down almost immediately into a debate between Carmen and
Melvin, the court ended it and called for closing arguments. Melvin did not object or ask
for an opportunity to present additional evidence. As the court noted in denying Melvin‟s
motion for reconsideration, Melvin did not focus any argument on the date of separation.
Rather, “he thought that those deeds that she signed were, in his mind, sufficient evidence
for his case. And . . . if it was, then the date of separation and all this other stuff doesn‟t
matter so much.” It was only after the court set aside the quitclaim deeds that Melvin
shifted his focus to contesting the date of separation.


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       In re Marriage of Carlsson (2008) 163 Cal.App.4th 281, cited by Melvin, is
entirely distinguishable. In that case, the appellate court reversed the judgment of
dissolution on due process grounds where the trial court “essentially ran the trial on a
stopwatch, curtailing the parties‟ right to present evidence on all material disputed issues.
Using the constant threat of a mistrial, [the judge] pressured [the attorney] into rushing
through her presentation and continuing without a break. . . . Most damning, the judge
abruptly ended the trial in the middle of a witness‟s testimony, prior to the completion of
one side‟s case and without giving the parties the opportunity to introduce or even
propose additional evidence.” (Id. at p. 292.) Nothing of the sort occurred at the trial in
this case.
2.     The court did not err in determining the date of separation.
       Recognizing that “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,”
courts have held that “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.” (In re Marriage of von
der Nuell (1994) 23 Cal.App.4th 730, 736.) Thus, a court decides the date of separation
by examining two components, one subjective and the other objective. (In re Marriage of
Norviel (2002) 102 Cal.App.4th 1152, 1158.) The subjective component examines
whether either of the parties harbors the subjective intent to end the marriage. The
objective component examines whether there is objective conduct evidencing and in
furtherance of that intent. (Id. at p. 1159.) The determination of a date of separation is
proven by a preponderance of evidence (In re Marriage of Peters (1997) 52 Cal.App.4th
1487, 1489, 1491) and the testimony of a single witness may be sufficient to prove a fact
(Sabbah v. Sabbah (2007) 151 Cal.App.4th 818, 823). We review the correctness of the
trial court‟s determination under the substantial evidence standard of review. (Bono v.
Clark (2002) 103 Cal.App.4th 1409, 1421.) As a reviewing court, we must view the
evidence in the light most favorable to the prevailing party, giving Carmen the benefit of



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every reasonable inference, and resolving all conflicts in her favor. (In re Marriage of
Mix (1975) 14 Cal.3d 604, 614.)
       Here, the court found that “Although both parties may have had the subjective
intent to end the marriage as far back as 1993, no actions furthering that intent occurred
until 2008 when [Carmen] told [Melvin] their problems were irreversible and she hired a
lawyer to file for divorce. That was the only real objective evidence of conduct furthering
either parties‟ intent to end the marriage.” The court explained that “aside from moving
out, [Melvin] continued on in the same type of marital relationship as he had previously.
He went to [Carmen] for sex. He filed their taxes together. He allowed Christmas cards to
go out together. He continued to negotiate property deals with her through 2005.” While
moving out of the family home is one factor to consider, it is not determinative and the
court reasonably concluded based on all the evidence presented that the date of separation
was in 2008. (See In re Marriage of Hardin (1995) 38 Cal.App.4th 448, 452 [“All factors
bearing on either party‟s intentions „to return or not to return to the other spouse‟ are to
be considered.”].)
       Contrary to Melvin‟s argument, the court did not “refuse to consider” relevant
evidence presented at trial. Although Melvin attempted to dispute much of Carmen‟s
testimony, the trial court credited Carmen‟s testimony, which supports the court‟s
findings. Under the substantial evidence test, we do not reweigh the evidence. We must
affirm the judgment if “there is any evidence (or any reasonable inferences which can be
deduced from the evidence), whether contradicted or uncontradicted, which, when
viewed in the light most favorable to . . . a court‟s judgment, will support the . . . judicial
findings of fact.” (Antelope Valley Press v. Poizner (2008) 162 Cal.App.4th 839, 849,
fn. 11.)
       Likewise, the court did not err in rejecting Melvin‟s belated attempts to introduce
new evidence after the judgment was issued. Although Melvin acknowledged at trial that
he went to Reno with Carmen in 2008, after the judgment was issued he began denying
that he was there and claiming instead that he was on a cruise with his girlfriend. He
attempted, through a motion for reconsideration, to introduce new evidence, including a


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declaration from his girlfriend, that he asserts proves that Carmen was lying about the
Reno trip and therefore calls into question the overall credibility of her testimony. There
was, however, no proper justification for the belated introduction of this evidence. (In re
Marriage of Herr (2009) 174 Cal.App.4th 1463, 1468 [party seeking reconsideration
under Code of Civil Procedure section 1008 must show not only new or different facts,
circumstances or law, but must also provide a satisfactory explanation for the failure to
produce the new evidence earlier].)
                                        Disposition
       The judgment is affirmed. Carmen is to recover her costs on appeal. Carmen‟s
request for an award of attorney fees on appeal is denied without prejudice to a request
for fees in the trial court.



                                                 _________________________
                                                 Pollak, J.


We concur:


_________________________
McGuiness, P. J.


_________________________
Jenkins, J.




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