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In re Marriage of Lee & Lin

California Court of Appeals, Sixth District

October 30, 2019

IN RE the MARRIAGE OF SHOU CHAN LEE AND SHU YING LIN. Shou Chan Lee, Respondent,
v.
Shu Ying Lin, Appellant.

         [254 Cal.Rptr.3d 386] Santa Clara County Superior Court, Superior Court No. 6-14-FL-013138, Hon. Beth A. R. McGowen, Judge.

Page 699

         COUNSEL

         Counsel for Appellant Shu Ying Lin: Kathleen O’Reilly, O’Reilly Law Office

         Counsel for Respondent Shou Chan Lee: Michael Thomas Bonetto, San Jose, Crystal Riggins, Hoge, Fenton, Jones & Appel, Inc.

         OPINION

         Grover, J.

Page 700

          In this marital dissolution action, appellant challenges the trial court’s determination that the parties legally separated in May 2012 when respondent moved out of [254 Cal.Rptr.3d 387] the family residence. Finding no error, we will affirm.

          I. BACKGROUND

          After 26 years of marriage, Shou Chan (Tony) Lee (Husband) moved out of the family residence in May 2012. He rented an apartment in a neighboring city, and occasionally interacted with Shu Ying (Sharon) Lin (Wife) with whom he maintained an amicable relationship. Husband filed a dissolution petition in August 2014.

         The parties litigated their date of separation. Husband maintained the date was in May 2012 when he left the family home, and Wife contended the legal separation occurred when Husband filed for dissolution 27 months later. After a two-day hearing in 2017 in which both parties testified, the court found that legal separation occurred when Husband moved from the family home in May 2012. Ruling from the bench and tracking the language of Family Code section 70 defining "date of separation," the court found "Husband’s intention to end the marriage occurred on May 21, 2012 and his actions since then have been consistent with that." The court found Husband’s intent to end the marriage was clearly expressed by leasing an apartment, his intent was reinforced by relinquishing the key to the family home and refusing to give Wife a key to the apartment, and his post-move conduct was consistent with that intent. The court found the parties’ limited interactions after Husband’s move did not show an intent to reconcile and did not "overcome any clear act of ending the marriage by moving out."

         The trial court memorialized its ruling about the date of separation in a written order. It certified the order for immediate review, and this court granted Wife’s motion to appeal the interlocutory decision. (Cal. Rules of Court, rule 5.392.)

          II. DISCUSSION

         Family Code section 771 classifies property acquired after the date of separation as the acquiring spouse’s separate property. (Undesignated statutory references are to ...


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