Marriage of Haynes CA1/3

Filed 5/20/13 Marriage of Haynes CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

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.