In re Marriage of Norviel

• Decision Date: 15 October 2002
• Docket Number: No. H021925.,H021925.
• Citation: 126 Cal.Rptr.2d 148,102 Cal.App.4th 1152
• Court: California Court of Appeals Court of Appeals
• Parties: In re the MARRIAGE OF Vernon A. and Carmencita J. NORVIEL. Vernon A. Norviel, Respondent, v. Carmencita J. Norviel, Appellant.

126 Cal.Rptr.2d 148

102 Cal.App.4th 1152

In re the MARRIAGE OF Vernon A. and Carmencita J. NORVIEL Vernon A. Norviel, Respondent, v. Carmencita J. Norviel, Appellant.

No. H021925.

Court of Appeal, Sixth District.

October 15, 2002.

Paige Leslie Wickland, Esq., Fancher & Wickland, San Francisco, Susan M. Chung, Esq., Chung & Romano, San Jose, for Appellant.

William L. Dok, Esq., Dok, Levy & Perrin, San Jose, E. Elizabeth Summers, Esq., Bien & Summers LLP, Novate, for Respondent.

WUNDERLICH, J.

This appeal arises from bifurcated proceedings in a marital dissolution action. The question before us is whether the trial court erred in determining the parties' date of separation. In particular, we must consider what it means for spouses to live separate and apart.

The trial court determined that the parties separated in June 1998, when the husband stated his intention to end the marriage. The wife challenges that determination. She asserts that there was no conduct demonstrating a final break in the marriage until many weeks later. Among other things, she cites undisputed evidence that the parties continued to reside together until August 1998 and that they continued to maintain joint finances until September 1998.

We conclude that the trial court incorrectly applied the law in this case. We therefore reverse the order determining the date of separation.

FACTS

Vernon A. Norviel (Husband), petitioner below, is the respondent here. Carmencita J. Norviel (Wife), respondent below, is the appellant here.

Husband and Wife were married in 1983. They have two children: a son born in 1986, and a daughter born in 1994.

The marriage had "always been somewhat difficult" and the parties had discussed divorce repeatedly over the years. Both parties worked long hours and traveled frequently. After the birth of their daughter in 1994, Wife stopped sleeping with Husband on a regular basis, and instead usually slept in the daughter's room. As Husband described it, he and Wife were "roommates." They had few common interests or activities. They occasionally had family dinners together, however. In addition, Husband and Wife tried to have Sunday night dinners alone.

During their Sunday night dinner on June 28, 1998, Husband communicated to Wife his decision that "[t]his was the end of the marriage." After the exchange of some angry words, the parties agreed that Husband would move into a rental house in Santa Clara that they were in the process of buying. After their conversation on June 28, 1998, Husband took steps to prepare the rental house for his occupancy, including having it cleaned, painted, and furnished.

Despite the decision to separate, Husband did not immediately move from the family home in Cupertino, because the Santa Clara rental house was not yet ready. Husband continued to reside in the family home until August 15, 1998, when he moved into the Santa Clara house. During that time, Husband and Wife continued to live as roommates. As before, Husband had his laundry done at the family home, by the maid. He continued to use the mailing address and telephone number of the family home. And he continued to take occasional meals and outings with the family, in an attempt to maintain a civil relationship for the sake of the children.

Soon after the decision to separate, in July 1998, Husband and Wife took a long-planned family vacation to Canada. During the trip, Husband and Wife did not sleep together nor did they discuss reconciliation. That same month, Husband took a business trip to Belgium and London. He invited Wife to join him there, without the children, but she declined. The parties' 15th wedding anniversary also fell in July 1998, and Husband sent Wife flowers accompanied by a card.

For some months after the decision to separate, Husband and Wife maintained their finances jointly. They kept and used joint bank and credit card accounts until September 1998. During that time, both parties continued to have their paychecks deposited into their joint checking account. In addition, the parties deposited more than $71,000 in stock sale proceeds into the joint account on August 13, 1998. The parties continued to pay all their expenses from the joint account until September 1998. There were several other significant financial transactions involving Husband and Wife between June and September 1998. In July 1998, the parties closed escrow on the Santa Clara rental house, using community property funds for the purchase and taking joint tenancy title as husband and wife. Also, sometime in July 1998, the parties discussed property division. In August 1998, Husband completed a 1997 stock gift to Wife's nieces and nephews. Finally, in September 1998, Husband established his own separate bank and credit card accounts.

PROCEDURAL HISTORY

On September 15, 1998, Husband filed this action for dissolution of the marriage. In his petition, Husband identified June 21, 1998, as the date of separation. In her initial response, Wife set the date of separation at August 15, 1998, Thereafter, the parties stipulated to June 21, 1998, as the date of separation, in order to facilitate the filing of income tax returns. Wife later moved to set aside that stipulation. That motion was resolved by a second stipulation, in which the parties agreed to set aside the first stipulation. They also agreed to bifurcate the disputed question of their separation date and to try that issue first.

The issue of the parties' separation date was tried on March 30, 2000. At trial, Husband contended that the parties separated on June 28, 1998. Wife claimed that the date of separation was September 15, 1998. The court heard the testimony of Husband, Wife, and three other witnesses, admitted documentary evidence, and entertained written argument in the form of the parties' trial briefs. At the conclusion of the one-day trial, the court took the matter under submission.

Several days later, in early April 2000, the court issued its "proposed" statement of decision. Having been granted an extension of time to object Wife filed objections to the statement and a request for clarifications in May 2000. In August 2000, the court filed its statement of decision, which was substantially similar to its proposed decision. The court thereafter entered an order pursuant to its statement of decision.

In August 2000, the trial court certified its order for immediate appeal. Wife then moved this court for review of the trial court's order. We granted Wife's motion in September 2000.

APPEALABILITY

Even though it fails to dispose of all issues in this case, the order determining the date of separation nevertheless is appealable. (Code Civ. Proc, § 904.1, subd. (a)(10); Fam.Code, § 2025; Cal. Rules of Court, rule 1269.5.)

STANDARD OF REVIEW

The parties dispute the appropriate standard of review. Wife argues for independent review, claiming that the essential facts concerning the date of separation are undisputed. (See, e.g., In re Marriage of von der Nuell (1994) 23 Cal.App.4th 730, 736, 28 Cal.Rptr.2d 447 [on undisputed facts, date of separation presents question of law].) Husband vigorously contends for substantial evidence review. (See, e.g., In re Marriage of Marsden (1982) 130 Cal. App.3d 426, 435, 181 Cal.Rptr. 910 [trial court's finding of separation date supported by substantial evidence].) According to Husband, the trial court resolved conflicts in the evidence, including a determination of the parties' subjective intent, which always presents a question of fact. Husband further asserts that even if the facts were undisputed, substantial evidence review is required because of the rule of conflicting inferences.

"Questions of fact concern the establishment of historical or physical facts; their resolution is reviewed under the substantial-evidence test." (Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881, 888, 264 Cal.Rptr. 139, 782 P.2d 278.) Questions of law, such as the selection of a rule or the interpretation of a statute, are reviewed independently. (Ibid. See also, Estate of Joseph (1998) 17 Cal.4th 203, 216-217, 70 Cal.Rptr.2d 619, 949 P.2d 472 [statutory interpretation].) Where mixed questions of fact and law require "a critical consideration in a factual context, of legal principles and their underlying values, the question is predominantly legal and its determination is reviewed independently. [Citation.]" (Crocker National Bank v. City and County of San Francisco, supra, 49 Cal.3d at p. 888, 264 Cal.Rptr. 139, 782 P.2d 278. Cf., In re Marriage of Dekker (1993) 17 Cal.App.4th 842, 849, fn. 11, 21 Cal.Rptr.2d 642.)

In this case, we review the trial court's determination of disputed facts for substantial evidence. But we independently review the trial court's application of the governing law.

DISCUSSION

The sole issue on appeal is whether the trial court properly determined the date of separation.

The significance of the determination lies in the fact that it dictates the character of property acquired thereafter. (See, e.g., In re Marriage of Peters (1997) 52 Cal.App.4th 1487, 1491, 61 Cal.Rptr.2d 493; In re Marriage of Hardin (1995) 38 Cal. App.4th 448, 451, 45 Cal.Rptr.2d 308.) A spouse's "earnings and accumulations ... while living separate and apart from the other spouse" are separate property. (Fam.Code, § 771, subd. (a).)¹ In this case, the economic consequences of the determination are substantial, even though the period between the disputed dates is relatively short: Between the end of June and the middle of September 1998, Husband earned stock options worth a considerable sum.

Despite the importance of the determination, "the Legislature has neither defined `date of separation' nor specified a standard for determining it. The only statutory reference to this term is found in Family Code section 771[,] which provides: 'The earnings and accumulations of a spouse, ... while living separate and apart from...