Marriage of Marsden, In re

• Decision Date: 01 April 1982
• Court: California Court of Appeals Court of Appeals
• Parties: In re the MARRIAGE OF Nancy E. and Sullivan S. MARSDEN. (two cases) Nancy E. MARSDEN, Respondent, v. Sullivan S. MARSDEN, Appellant. (two cases) In re the MARRIAGE OF Nancy E. and Sullivan S. MARSDEN. Nancy E. MARSDEN, Respondent, v. Sullivan S. MARSDEN, Appellant. Civ. 47922, Civ. 51438.

Page 910

181 Cal.Rptr. 910

130 Cal.App.3d 426

In re the MARRIAGE OF Nancy E. and Sullivan S. MARSDEN. (two cases)

Nancy E. MARSDEN, Respondent, v. Sullivan S. MARSDEN, Appellant. (two cases)

In re the MARRIAGE OF Nancy E. and Sullivan S. MARSDEN.

Nancy E. MARSDEN, Respondent, v. Sullivan S. MARSDEN, Appellant.

Civ. 47922, Civ. 51438.

Court of Appeal, First District, Division 3, California.

April 1, 1982.

Hearing Denied May 27, 1982.

Robert J. Smith, Mountain View, for appellant.

T. Patrick Hannon, Law Offices of N. Perry Moerdyke, Jr., Palo Alto, for respondent.

BARRY-DEAL, Associate Justice.

In this opinion we will consider the issues raised in two appeals (1 Civ.No. 47922 and 1 Civ.No. 51438) which were consolidated by this court "for the purposes of oral argument and decision" by an order dated May 22, 1981. Both appeals involve the same proceeding commenced by respondent (wife) to dissolve her marriage to appellant (husband) in the Superior Court of Santa Clara County on July 17, 1978. At trial the issue of the dissolution of the marriage was bifurcated from the remaining issues presented in the proceeding. An interlocutory judgment of dissolution of marriage was entered on February 27, 1979. An interlocutory judgment pertaining to the disposition of the community property was entered on April 5, 1979. This latter interlocutory judgment provides in part: "The value, disposition and division of husband's pensions/annuities with CREP (# P-38492) and TIAA (# A-115014) was [sic ] previously bifurcated by stipulation of counsel. In the event the parties are unable to agree, the court specifically retains jurisdiction to determine the value, disposition, and division of these two pensions/annuities."

The appeal in 1 Civil No. 47922 is from the interlocutory judgment entered on April 5, 1979. In this appeal husband contends (1) the trial court incorrectly determined the community interest in the leasehold and house he acquired prior to the marriage on which payments were made after marriage from community funds; (2) the trial court incorrectly found that certain shares of stock were community property on the ground that these shares of stock were purchased with funds from accounts in which separate and community property or funds had been commingled; (3) the trial court incorrectly concluded that there had been no periods of legal separation from the date of marriage (Feb. 1, 1971) until July 10, 1978; and (4) attorney's fees were improperly awarded to wife.

An interlocutory judgment pertaining to husband's pensions and/or annuities was filed on April 8, 1980. The appeal in 1 Civil No. 51438 is from the interlocutory judgment filed on April 8, 1980. Husband also contends on his appeal in 1 Civil No. 51438 that the trial court incorrectly determined that there had been no periods of legal separation from the date of marriage until July 10, 1978. Husband further contends in this second appeal that the interlocutory judgment, filed on April 8, 1980, is ambiguous in that it fails to specify the date of separation as the appropriate valuation date for the retirement benefits.

The facts necessary to resolve each issue will be set out in the discussion of the issue.

Legal Separation

Husband contends that there were two periods of legal separation between the parties prior to July 10, 1978. Husband alleges that the parties were separated between (1) April of 1975 and September of 1976; and (2) June of 1977 and July of 1978. The resolution of this issue is important to husband because Civil Code section 5118 provides that the earnings and accumulations of a spouse while living "separate and apart from the other spouse, are the separate property of the spouse." We have chosen to consider this issue first as the resolution of the issue may affect the determination of the community interest in the leasehold and house as well as certain shares of stock (1 Civ.No. 47922) and the retirement benefits (1 Civ.No. 51438).

Husband states that the interlocutory judgment entered on April 5, 1979, "with respect to the allocation of real property values and stock can only be explained by a finding that the parties did not live separate and apart." The interlocutory judgment filed on April 8, 1980, provides in part: "The parties were married February 11, 1971 and separated July 10, 1978. During the period February 11, 1971 to July 10, 1978, the parties did not live separate and apart." Husband contends that the finding that parties did not live separate and apart "was erroneous in view of the overwhelming evidence of [wife's] intent to terminate the marriage to her husband during these periods of separation."

The parties were married on February 11, 1971. On April 12, 1975, wife moved out of the house on Lathrop Drive, Stanford, in which she had lived with husband and moved into an apartment on Kingsley Street in Palo Alto. On April 25, 1975, wife filed a petition for dissolution of marriage. The April 25, 1975, action was not dismissed by wife until after she filed the present action for dissolution in July of 1978.

Wife testified although she filed the petition for dissolution in April of 1975, she did not want a divorce. Wife stated she simply wanted to work out the parties' differences. Wife rented the apartment in Palo Alto because it was close to the house on Lathrop and she wanted to remain near her husband. The parties' sexual relationship continued after wife moved out of the house on Lathrop. The parties also saw a marriage counselor during this period.

Wife went to Puerto Vallarta, Mexico, in June of 1975. Husband went to Bogota, Colombia, in the summer of 1975 to "give some lectures." On his way to Bogota and on his return trip, husband spent a few days with wife in Puerto Vallarta. Husband testified that he and wife agreed that upon her return from Puerto Vallarta in August or September of 1975 they would dissolve the marriage.

Husband was invited to lecture in Iran and asked wife if she would like to accompany him. Husband and wife left for the Middle East in September of 1975 and were gone for five or six weeks. Upon their return from the Middle East, wife continued to live in the apartment on Kingsley. In December of 1975 husband and wife went to Puerto Vallarta for Christmas.

Wife returned to Puerto Vallarta in June of 1976 and remained there for the summer. In September of 1976 husband met wife in Los Angeles and drove with her to the Palo Alto area. Shortly thereafter husband went on a three-week trip, and when he returned in the first week of October, "I found that completely to my surprise [wife] and her two daughters had moved back into the house."

Husband was on sabbatical leave from Stanford University from June of 1977 until July of 1978. Since husband planned to travel around the world during his leave, the parties decided to rent the house on Lathrop and that wife would live in Puerto Vallarta where husband would visit her. During this year, husband spent approximately 14 weeks in Puerto Vallarta. Husband testified that he did not believe he and wife were separated during his sabbatical because of any marriage problems. During this period he received warm and loving letters from wife. Husband subsequently learned that during this year, wife was writing letters to her mother indicating that there were problems with the marriage. ¹ Wife also testified that during this year, she wrote to her mother and stated that she was considering terminating the marriage. However, wife testified that she was merely thinking about the possibility of ending the marriage, and "it depended on how he acted toward me." Wife returned from Mexico in July of 1978 and removed her belongings from the house on Lathrop.

"What little law defines separation under Civil Code section 5118 holds that 'living separate and apart' refers to 'that condition when spouses have come to a parting of the ways with no present intention of resuming marital relations.' [Citation.] That husband and wife may live in separate residences is not determinative. [Citations.] The question is whether the parties' conduct evidences a complete and final break in the marital relationship." (In re Marriage of Baragry (1977) 73 Cal.App.3d 444, 448, 140 Cal.Rptr. 779.)

In Baragry, husband moved out of the family residence and took an apartment with his girl friend. Husband ate frequently at the family residence and took his family on trips. Husband went with wife to Sun Valley for a week without the children. Husband attended social functions with wife and sent gifts and cards to her on holidays. The parties continued to file joint income tax returns and husband maintained his voting registration at the family residence. This arrangement continued for four years, although remaining nonsexual. (Id., at p. 447, 140 Cal.Rptr. 779.)

The court in Baragry found that the parties' conduct did not demonstrate "a complete and final break in the marital relationship. Here the only evidence of such a break is the absence of an active sexual relationship between the parties and husband's cohabitation elsewhere with a girlfriend. In our view such evidence is not tantamount to legal separation." (Id., at p. 448, 140 Cal.Rptr. 779.)

The finding of the trial court that during "the period February 11, 1971 to July 10, 1978, the parties did not live separate and apart" is supported by substantial evidence. We will first consider the time period between April of 1975 and September of 1976. Admittedly wife moved out of the family residence in April of 1975 and filed a petition for dissolution. However, she took absolutely no further legal action for over three years. The parties continued their sexual relationship and attempted to resolve their marital differences with the aid of a marriage counselor. Husband joined wife in Mexico in the summer of 1975 and traveled with her to the Middle East in September and October of 1975. The parties spent Christmas...