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In re Marriage of Lee

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.

          Santa Clara County Superior Court Superior Court No. 6-14-FL-013138 Hon. Beth A. R. McGowen Judge

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

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

          Grover, J.

         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 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 the Family Code.) As originally enacted, section 771 provided that “[t]he earnings and accumulations of a spouse …, while living separate and apart from the other spouse, are the separate property of the spouse.” (§ 771, former subd. (a).) In 2016 the Legislature substituted the clause “after the date of separation of the spouses” for the clause “while living separate and apart from the other spouse.” (§ 771, subd. (a).) At the same time, the Legislature defined “date of separation” in a new section of the Family Code: “ ‘Date of separation' means the date that a complete and final break in the marital relationship has occurred, as evidenced by both of the following: [¶] (1) The spouse has expressed to the other spouse his or her intent to end the marriage. [¶] (2) The conduct of the spouse is consistent with his or her intent to end the marriage.” (§ 70, subd. (a).) In enacting section 70, the Legislature expressly abrogated the holding in In re Marriage of Davis (2015) 61 Cal.4th 846 that “the Legislature intended the statutory phrase ‘living separate and apart' to require both separate residences and accompanying demonstrated intent to end the marital relationship.” (Id. at pp. 863-864; § 70, subd. (c).)[1]

         The “date of separation” definition added by section 70 is consistent with caselaw interpreting and applying former section 771. In In re Marriage of von der Nuell (1994) 23 Cal.App.4th 730, the court explained that a separation under section 771 “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, at p. 736, italics omitted.) In In re Marriage of Hardin (1995) 38 Cal.App.4th 448, the court elaborated that marital separation for purposes of section 771 requires both the subjective intent to end the marriage and objective conduct demonstrating such intent. (In re Marriage of Hardin, at p. 451.) In In re Marriage of Manfer (2006) 144 Cal.App.4th 925, 930, the court instructed that the parties' individual intents are objectively determined from all relevant evidence before the court. “ ‘The ultimate question to be decided in determining the date of separation is whether either or both of the parties perceived the rift in their relationship as final. The best evidence of this is their words and actions.' ” (Ibid., quoting In re Marriage of Hardin, at p.453, italics omitted; see also § 70, subd. (b) [“In determining the date of separation, the court shall take into consideration all relevant evidence”].)

         The date of separation is a factual issue established by a preponderance of the evidence. We review the trial court's determination for substantial evidence (In re Marriage of Manfer, supra, 144 Cal.App.4th at p. 930), indulging all legitimate and reasonable inferences to uphold the court's decision. (Munoz v. Olin (1979) 24 Cal.3d 629, 635-636; In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) To the extent we must interpret Family Code section 70, we apply our independent judgment. (In re Marriage of Schleich (2017) 8 Cal.App.5th 267, 276.)

         A. Substantial Evidence Supports the May ...


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