Metropolitan News-Enterprise


Monday, November 13, 2006


Page 3


C.A.: Ex-Couple’s Date of Separation Determined by Subjective Intent


By TINA BAY, Staff Writer


The date of a couple’s legal separation is determined using a subjective intent rather than a public perception standard, the Fourth District Court of Appeal has ruled.

Div. Three on Thursday reversed an order by retired San Diego Superior Court Judge Thomas R. Murphy, sitting by assignment in Orange Superior Court, who deferred a privately separated couple’s legal separation date based on an “objective test.”

Murphy’s focus on the couple’s public persona was misdirected, the court held, because the question was what the parties’ subjective intent was and not what society at large would have perceived.

The couple, Samuel and Maureen Manfer, wed in 1973 and broke marital ties with each other following a quarrel shortly after their 31st wedding anniversary. The split was mutual, he moving out of the family residence and into a previously leased apartment, and she resolving that the marriage was over.

Out of concern for their three daughters, however, the two agreed to hide their split from family and friends until after the year-end holidays passed. Although they did not have sexual relations with each other, commingle their funds or support each other in the interim, they kept up appearances by engaging in sporadic social contacts and taking trips together occasionally.

They finally told their daughters and friends in early 2005 that they were not living together.

The husband filed for divorce in April alleging a March 15, 2005 date of separation, and the wife contended the separation date had been nine months earlier on July 1, 2004.

After a two-day hearing, Murphy concluded “the [parties’] private conduct evidence a final and complete break in their marital relationship in June of 2004,” but set the date of separation as March 15 based expressly on an “outsider’s viewpoint” standard.

The wife, whose annual income of over $1 million made the parties’ incomes significantly disparate, appealed the characterization of the property as community property during the disputed period. With the earlier separation date, she would be entitled to keep potentially several thousands of dollars that would otherwise go to the community.

Relying on In re Marriage of Baragry (1977) 73 Cal.App.3d 444, the husband argued that the couple did not officially part ways until after their rift became public.

In Baragry, the husband had moved out of the family residence, into an apartment with his girlfriend, and split time between her and his wife for four years before filing for divorce.

Though he did not sleep at the family residence, he ate dinner at home with his wife almost every night and otherwise openly maintained continuous and frequent contacts with his wife and children. He preserved the façade of marriage by, among other charades, continuing to file joint income taxes. She continued to perform domestic services for him.

The court rejected the husband’s attempt to set the separation date on the day he moved in with his girlfriend.

Justice Raymond J. Ikola, writing for the Court of Appeal, said Baragry bore no resemblance to the Manfers’ case:

“Samuel and Maureen essentially disentangled their lives in all respects, save occasional social engagements, to carry out their mutual agreement to keep their separation secret so as not to spoil the holidays for their daughters and friends, whereas in Baragry, wife, unaware of her husband’s decision never to return, dutifully did his laundry and cooked his meals for four years! Enough said.”

Murphy had placed a single-minded and speculative concern on how things might have looked to outsiders, the justice wrote.

“There was no evidence at all on the issue of what an outsider might have believed, and we could as easily speculate that all of the couple’s friends and family knew they were witnessing a charade when the couple interacted on social occasions and trips, but were too polite or embarrassed to bring up the subject preemptively,” he noted.

On remand, Ikola said, the trial judge must pick a specific date based on the record that could be as early as the July 1, 2004 date alleged by Maureen Manfer.

The case is In re Marriage of Manfer, G037269.


Copyright 2006, Metropolitan News Company