Marriage of Bittenson CA2/6

Filed 11/20/23 Marriage of Bittenson CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

In re Marriage of MARK and 2d Civil No. B318665
TERRI BITTENSON. (Super. Ct. No. D360477)
(Ventura County)

MARK BITTENSON,

Respondent,

v.

TERRI BITTENSON,

Appellant.

Terri Bittenson appeals from a judgment on reserved issues
(judgment) pertaining to the dissolution of her marriage to
respondent Mark Bittenson. The judgment divided the parties’
property and awarded spousal support to appellant. Appellant
makes numerous claims of trial court error. We affirm.
This is the third appeal to come before us in this matter.
(See In re Marriage of Bittenson (2019) 41 Cal.App.5th 333; In re
Marriage of Bittenson (July 28, 2020, B294136) [nonpub. opn.].)
In a separate matter, we recently affirmed the judgment
dismissing appellant’s complaint against respondent and other
parties. (Bittenson v. Bittenson et al. (July 19, 2023, B320303)
[nonpub. opn.].)
Factual and Procedural Background
The parties were married in May 1987. They separated in
May 2013. A status only judgment of dissolution was entered in
December 2016. They have three children, all of whom are
adults.
In June 2021 a trial was conducted on the division of the
parties’ property and spousal support. “In addition to his own
testimony, [respondent] offered testimony from three witnesses (a
vocational expert, the court-appointed receiver, and a financial
forensic expert[, Anna Leh]). [¶] . . . [Appellant] did not appear
for any portion of trial and chose not to testify.” Appellant was
represented by counsel at the trial.
Trial Court’s Criticism of Appellant’s Conduct
In its judgment the trial court criticized appellant’s conduct
during the litigation: “[T]the evidence at trial established that
[appellant] caused the litigation to be unnecessarily protracted,
expensive and painful. She impeded the work of the receiver and
was generally disruptive and uncooperative in terms of the sale of
the home. . . . She used and/or occupied the family home
throughout the separation, but failed to maintain it, such that
significant repairs and cleaning were required before it could be
sold. She failed to return [respondent’s] separate personal
property and she failed to account for any of the personal
property belonging to the community. . . . She failed to provide
the names of witnesses or exhibit lists before trial . . . .

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[Respondent] testified that [appellant] told him she would make
these divorce proceedings a ‘war of the roses’ and leave him
‘broke, destitute and homeless.’[1] [¶] . . . The Court finds that
[appellant] engaged in conduct during the litigation that was
inappropriate, needlessly increased the expense of the litigation
and caused significant hardship to [respondent] emotionally and
financially.”
Appellant’s Opening Brief is Defective Because She
Failed to Provide a Summary of Significant Facts
The California Rules of Court, Rule 8.204(a)(2)(C) provides
that each brief must “[p]rovide a summary of the significant facts
limited to matters in the record.”2 No such summary appears in
appellant’s opening brief. Section IV of the opening brief is
headed, “STATEMENT OF FACTS AND PROCEDURAL
HISTORY.” But section IV merely sets forth the procedural
history of the case. The omission of a summary of the significant
facts renders appellant’s opening brief “ ‘seriously defective.’ ”
(William Jefferson & Co., Inc. v. Orange County Assessment
Appeals Bd. No. 2 (2014) 228 Cal.App.4th 1, 6, fn. 2.)

1 “The War of the Roses is a 1989 American satirical black

comedy film . . . . The film follows a wealthy couple with a
seemingly perfect marriage. When their marriage begins to fall
apart, material possessions become the center of an outrageous
and bitter divorce battle” [as of Aug. 29, 2023], archived
at .
2 All references to rules are to the California Rules of Court.

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 We Will Not Consider All Claims Made
By Appellant in Her Appellate Briefs
We will consider only those claims raised in the argument
section of appellant’s opening brief, beginning at page 15.
Furthermore, we will consider a claim only if it is clearly set forth
in a heading preceding the argument concerning that claim. (See
rule 8.204(a)(1)(B) [brief must “[s]tate each point under a
separate heading or subheading summarizing the point”].) “The
failure to head an argument as required by California Rules of
Court, rule [8.204(a)(1)(B)] constitutes a waiver.” (Opdyk v.
California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830,
fn. 4.)
“[W]e [will] not consider all of the loose and disparate
arguments [in appellant’s opening brief] that are not clearly set
out in a heading and supported by reasoned legal argument.”
(Provost v. Regents of University of California (2011) 201
Cal.App.4th 1289, 1294, italics added.) “The additional argument
. . . in [appellant’s] reply brief comes too late.” (Bell v. H.F. Cox,
Inc. (2012) 209 Cal.App.4th 62, 80, fn. 7.) “[T]oo late because
[respondent] did not have the opportunity to respond.” (Provost,
supra, at p. 1305; see Aviel v. Ng (2008) 161 Cal.App.4th 809, 821
[“[Appellants] attempt, in their reply brief, to develop the
argument, but it is too late. We disregard issues not properly
addressed in the appellant's opening brief”].)
Accordingly, we will not grant appellant’s request in her
opening brief for “appellate review of the pre-trial rulings of her
motions to continue the trial dates” and “of the trial court’s ruling
concerning her attorney’s [Code of Civil Procedure section] 473(b)
motion and [her] motion which was filed post appeal for the

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stated reasons in the subject motion under C.C.P. Section 663
and CRC 3.1590.”
We will not consider the following claims in the conclusion
of appellant’s opening brief: (1) “This case should not have been
assigned to the Family Law Accelerated Program which in effect
prematurely forced the Respondent into a trial preparation mode
at a time when the COVID19 pandemic was still causing major
disruptions in Ventura County and through out [sic] the State of
California.” (2) “The resulting trial should not have gone forward
given the serious questions which were raised concerning the
Spousal Support Order from February 8, 2017.” Nor will we
consider claims raised for the first time in appellant’s reply brief.
(West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780,
799.)
Claims that Trial Court Did Not Equally Divide the Community
Estate and that Respondent Breached His Fiduciary Duty
Family Code section 2550 provides that the court shall
“divide the community estate of the parties equally.”3 Appellant
contends the trial court did not equally divide the community
estate. She argues respondent misappropriated community
property funds and the trial court did not take his
misappropriation into account when it divided the community
estate. Appellant asserts: “Ms. Leh’s [respondent’s financial
forensic expert’s] opinion testimony and her ultimate calculations
were not admissible because they had no legitimate basis and she
instead heavily relied upon [respondent’s] self-serving
explanations.” “[T]his court should order a post-trial accounting
of the misappropriated funds due to the lack of candor on the part

3 Unless otherwise stated, all statutory references are to

the Family Code.

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of [respondent] and the utter lack of an accounting from An[n]a
Leh on this important issue.”
Appellant also claims respondent “breached his fiduciary
duties to . . . [her] by unilaterally selling community property
stocks and cashing out community property Waddell & Reed
funds and Bank of America 401k for his personal benefit without
the written approval of the court or . . . [appellant].” (Bold and
capitalization omitted.) Appellant states, “In a desperate attempt
to excuse these blatant violations, [respondent] maintains that he
made these post-separation transactions to pay joint expenses
. . . .”
The trial court found that respondent had not
misappropriated community property funds and had not
breached his fiduciary duty to appellant. The court determined
that the community property funds in question had been “used to
pay necessary community expenses” and that appellant had not
“demonstrate[d] any impairment to her interests in any
community property.” The court credited respondent’s testimony
on this issue. It found “credible and reasonable” Leh’s testimony
“on where the funds went.”
Appellant cannot relitigate in this court “factual issues
already decided against [her]” in the trial court. (In re Dennis B.
(1976) 18 Cal.3d 687, 697.) The trial court’s finding that there
was no misappropriation of community property funds and no
breach of fiduciary duty must be upheld if it is supported by
substantial evidence. “Generally, appellate courts . . . apply the
substantial evidence standard to a superior court's findings of
fact. [Citations.] The substantial evidence standard [of] review
has been described by our Supreme Court as follows: [¶] ‘Where
findings of fact are challenged on a civil appeal, we are bound by

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the “elementary, but often overlooked principle of law, that . . .
the power of an appellate court begins and ends with a
determination as to whether there is any substantial evidence,
contradicted or uncontradicted,” to support the findings below.
[Citation.] We must therefore view the evidence in the light most
favorable to the prevailing party, giving it the benefit of every
reasonable inference and resolving all conflicts in its favor in
accordance with the standard of review so long adhered to by this
court.’” (SFPP v. Burlington Northern & Santa Fe Ry. Co. (2004)
121 Cal.App.4th 452, 461-462.) “‘Substantial evidence’ is
evidence of ponderable legal significance, evidence that is
reasonable, credible and of solid value.” (Roddenberry v.
Roddenberry (1996) 44 Cal.App.4th 634, 651.)
Appellant’s contentions that respondent misappropriated
community property funds and breached his fiduciary duty are
forfeited because she failed to provide a fair summary of the facts
underlying the contentions with references to the record. “A
party who challenges the sufficiency of the evidence to support a
finding must set forth, discuss, and analyze all the evidence on
that point, both favorable and unfavorable. [Citation.] . . . [¶] . . .
Because [appellant] has failed in [her] obligations concerning the
discussion and analysis of a substantial evidence issue, we deem
the issue waived.” (Doe v. Roman Catholic Archbishop of Cashel
& Emly (2009) 177 Cal.App.4th 209, 218.) “‘An appellant
challenging the sufficiency of the evidence to support the
judgment must cite the evidence in the record supporting the
judgment and explain why such evidence is insufficient as a
matter of law. [Citations.] . . . The fact that there was
substantial evidence in the record to support a contrary finding
does not compel the conclusion that there was no substantial

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evidence to support the judgment.’” (Verrazono v. Gehl Co. (2020)
50 Cal.App.5th 636, 652.)
Even if appellant had not forfeited the substantial evidence
issue, respondent’s and Leh’s testimony would constitute
substantial evidence that respondent did not misappropriate
community property funds and did not breach his fiduciary duty.
The trial court credited their testimony. “As a reviewing court,
we have no power to revisit the credibility of witness[es] or
reweigh the evidence.” (In re Maya L. (2014) 232 Cal.App.4th 81,
104, fn. 6.) “[A]ppellate courts should give particular deference to
factual findings and credibility determinations based on the trial
court's personal observations of witnesses.” (People v. Garcia
(2022) 79 Cal.App.5th 1059, 1065.)
Claim that Leh Failed to Properly Trace
Community and Separate Property Funds
Appellant claims, “Ms. Leh’s testimony revealed her non-
compliance with the direct tracing and accounting requirements
when a party has misappropriated community estate funds.” The
claim assumes that respondent misappropriated community
funds. As discussed above, substantial evidence supports the
trial court’s finding that respondent did not misappropriate
funds.
Appellant faults Leh for relying on respondent’s
characterization of property as separate or community: “[T]he
only basis that An[n]a Leh could have utilized to support her
analysis that a stated payment was joint or separate was
[respondent’s] self-serving representations.” But the trial court
found respondent credible, and we are bound by this finding. “As
an appellate court, we cannot usurp the function of . . . the trial
court, [which] finally passed upon the weight, effect, and

8
sufficiency of the evidence and the credibility of witnesses, and
determine in place of [the] arbiter[] of fact the credibility of
witnesses . . . .” (Bennett v. Chanslor & Lyon Co. (1928) 204 Cal.
101, 105.)
Claim that Respondent Failed to Prove the Existence
of an Express Agreement Required by Section 2640
Appellant claims respondent “failed to prove the existence
of an express agreement which is a prerequisite for
reimbursement under Family Code [section] 2640.” (Bold and
capitalization omitted.) “Family Code section 2640[] provides
that when community property is divided upon dissolution of the
marriage, either spouse shall be reimbursed for his or her
contributions of separate property to the acquisition of any
property being divided as community property, unless the
contributing spouse has waived the right of reimbursement in
writing.” (In re Marriage of Heikes (1995) 10 Cal.4th 1211, 1213,
italics added.)
Appellant has misinterpreted the statute. It permits
reimbursement unless there is a written waiver of the right to
reimbursement. It does not, as appellant maintains, require “an
express agreement which is a prerequisite for reimbursement.”
Appellant has not shown that respondent made a written waiver
of his right to reimbursement.
Claim that Respondent Failed to Establish that Appellant
Had Misappropriated Community Personal Property
In its judgment the trial court noted that respondent had
presented a list of community personal property (Trial Exhibit 3)
that appellant had allegedly misappropriated. Respondent
valued the property at approximately $91,000. The court stated:
“[Appellant] offered no evidence as to what happened to the items

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on Trial Exhibit 3 and does not dispute that . . . the items in Trial
Exhibit 3 are community property. [Appellant] did not offer
evidence of the value of these items. However, the Court finds
that the valuation provided by [respondent] is excessive given the
age and use of various items. The Court finds it appropriate to
apply a 40% discount to the valuation offered by [respondent].
Therefore, the personal property on Trial Exhibit 3 is valued at
$54,870. That property is awarded to [appellant] and she must
compensate [respondent] for half the value.”
Appellant maintains respondent “failed to establish a
credible basis for claiming that [she] had absconded with over
$90,000 in [community] personal property.” But the court
reduced respondent’s valuation to $54,870. Respondent’s
testimony and list of misappropriated personal property
constitute substantial evidence in support of the trial court’s
finding on this issue.
Claim Concerning Appellant’s Exclusive Use
of Family Residence after the Parties Had Separated
In its judgment the trial court observed, “[Respondent]
presented evidence that [appellant] had exclusive use of the
[community property] residence for 52 months” after the parties
had separated. The court determined the residence’s rental value
to be $3,000 per month. The court ordered appellant to make an
equalization payment to respondent of one-half the rental value
of the residence for the 52-month period.
“‘Where one spouse has the exclusive use of a community
asset during the period between separation and trial, that spouse
may be required to compensate the community for the reasonable
value of that use.’ [Citation.] The right to such compensation is
commonly known as a ‘Watts charge.’ (See In re Marriage of

10
Watts (1985) 171 Cal.App.3d 366, 374 . . . .) Where the Watts rule
applies, the court is ‘obligated either to order reimbursement to
the community or to offer an explanation for not doing so.’” (In re
Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 978.)
The trial court stated, “Leh testified that the fair rental
value of the residence was $4,100 per month during the time
[appellant] was living there. [Appellant] offered no evidence as to
the reasonable rental value . . . .” Because of the “poor” condition
of the home, the court “reduce[d] the monthly rental [value] . . . to
$3,000 for 52 months.”
Appellant asserts, “[N]o competent evidence was admitted
pertaining to the ‘rental value’ of the family residence.” But she
fails to explain why the trial court’s $3,000 per month figure is
not supported by competent evidence. Appellant notes that the
value of property may be shown by the opinions of “‘[w]itnesses
qualified to express such opinions.’” (Quoting from Evid. Code,
§ 813, subd. (a)(1).) Appellant does not say she objected to Leh’s
qualifications to express an opinion about the residence’s rental
value. She says the trial court “sustained” her hearsay objection
when Leh “attempted to adopt a ‘Zillow’ estimate of the rental
value.”4
In its judgment the trial court noted that Leh’s
“qualifications . . . were undisputed.” We reviewed the transcript
of Leh’s trial testimony and did not find an objection to her

4 Pursuant to Evidence Code sections 459 and 452,

subdivision (h), we take judicial notice that “Zillow Group Inc is a
real estate marketplace company that provides information and
services related to selling, buying, renting, and financing through
its platform, which is accessible through a website and mobile
application” .

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qualifications. We found only appellant’s hearsay objection to the
admission of an exhibit showing Zillow’s estimate of the fair
rental value. The trial court overruled the objection. It admitted
the evidence not for its truth but to show the information upon
which Leh had relied in arriving at her opinion as to the
residence’s rental value.5 (See Evid. Code, § 1200, subd. (a)
[“‘Hearsay evidence’ is evidence of a statement that was made
other than by a witness while testifying at the hearing and that
is offered to prove the truth of the matter stated”].)
Appellant has not shown that, in determining the rental
value of a residence, an expert cannot rely on the rental value
shown on Zillow’s website. Leh testified: “My experience is that
when we are talking about fair rental value, that we don't usually
have a realtor come in; that the Zillow does show the market . . .
rental value. Usually if we have an appraiser come in, it has to
do with the fair market value of a property, if the property is
being divided between the parties, and that's not the situation
here. But with fair rental value, my experience is that the online
sources are indicative of the marketplace rental value.” Leh’s
testimony on this matter was unrefuted.
When appellant made her hearsay objection, her counsel
protested: “[T]he problem with Zillow is it doesn't take into
consideration the characteristics, the condition of the home, what
the condition of the home is . . . .” Based on the poor condition of
the residence, the trial court reduced Leh’s estimate by 27

5 The court said, “I am going to let it in but not for its truth.

It is coming in under the same rationale that we have let in other
hearsay documents and that is it is information upon which the
witness relied and it helps the Court in understanding the
witness's testimony . . . .”

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percent – from $4,100 to $3,000. Appellant has not carried her
burden of demonstrating that the $3,000 figure is not supported
by substantial evidence. “‘The trial court possesses broad
discretion to determine the value of community assets as long as
its determination is within the range of the evidence presented.
[Citation.] The valuation of a particular asset is a factual
question for the trial court, and its determination will be upheld
on appeal if supported by substantial evidence in the record. . . .’”
(In re Marriage of Iredale & Cates (2004) 121 Cal.App.4th 321,
329.)
Appellant contends, “The trial court . . . failed to follow the
stated law on the issues presented concerning [respondent’s]
‘Watts’ claims which should have been denied in its entirety.” We
reject the contention because it is not supported by meaningful
legal analysis with citation to facts in the record on appeal. (See
Multani v. Witkin & Neal (2013) 215 Cal.App.4th 1428, 1457.)
Claim that Trial Court Erroneously Refused
To Consider Respondent’s Prior Testimony
Appellant claims “[t]he trial court . . . erred when it
refused, after the close of the evidence, to consider the prior trial
testimony of [respondent].” Appellant is referring to the
reporter’s transcript of an earlier proceeding conducted in July
2018, approximately three years before the June 2021 trial in the
present proceeding. Appellant makes the conclusionary assertion
that respondent’s prior testimony “should have been admitted . . .
as the Former Testimony of a party under California Evidence
Code Section 1290 and Former Testimony Offered against a
Party under [Evidence Code] Section 1291.”
Evidence Code section 1291, subdivision (a) provides,
“Evidence of former testimony is not made inadmissible by the

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hearsay rule if the declarant is unavailable as a witness.” (Italics
added.) Appellant does not explain how respondent could be
deemed unavailable as a witness when he testified at the trial.
Appellant’s attempt to develop this claim in her reply brief comes
too late. (See the discussion at p. 4, ante.)
Moreover, appellant fails to show that the alleged error
resulted in a miscarriage of justice. “[T]he appellant bears the
duty of spelling out in his brief exactly how the error caused a
miscarriage of justice.” (Paterno v. State of California (1999) 74
Cal.App.4th 68, 106; see Cal. Const., art. VI, § 13.) “A
‘miscarriage of justice’ occurs when it is ‘“. . . reasonably probable
that a result more favorable to the appealing party would have
been reached in the absence of the error.”’” (Lundy v. Ford Motor
Co. (2001) 87 Cal.App.4th 472, 479.)
Appellant’s Prior Testimony
Appellant did not testify at the June 2021 trial in the
present proceeding. She argues that, based on her prior
testimony at the July 2018 trial, respondent’s “request for Watt’s
reimbursement should have been summarily denied.” But the
transcript of her prior testimony was not admitted in evidence at
the June 2021 trial, and appellant has failed to show that the
trial court committed error in this regard.
Disposition
The judgment is affirmed. Respondent shall recover from
appellant his costs on appeal.

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 NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P. J.

BALTODANO, J.

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 Ronda J. McKaig, Judge

Superior Court County of Ventura

______________________________

Law Office of Jeffrey D. Johnsen and Jeffrey D. Johnsen for
Appellant.
Opri & Associates and Debra A. Opri for Respondent.