Metropolitan News-Enterprise


Tuesday, July 21, 2015


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Supreme Court: Couple Cannot Be ‘Separated’ Under One Roof




A married person cannot be considered separated, and thus permitted to keep his or her earnings as separate property, while continuing to live with his or her spouse, the California Supreme Court ruled yesterday.

Chief Justice Tani Cantil-Sakauye, writing for a unanimous court, said lower courts erred in holding that a couple living essentially separate lives under the same roof in order to continue parenting their children together could be considered separated under Family Code §771(a).

The statute says “[t]he earnings and accumulations of a spouse. . . while living separate and apart from the other spouse, are the separate property of the spouse.”  It provides an exception to §760, which declares that the earnings of married persons are community property if no exception applies.

Date of Separation

The dispute stemmed from the Alameda Superior Court divorce of Keith and Sheryl Davis. Sheryl Davis filed for divorce in 2008 and listed the date of separation as June 2006, even though the couple lived under the same roof until July 2011, which Keith Davis listed as the date of separation in his response.

Sheryl Davis, who started working fulltime around her claimed separation date, whereas her husband left his job around that time, said she told her husband in 2006 that she was through with their marriage, and that the two began acting more like roommates. Their intimate life ended after the second child was born in 1999, she said.

The parties moved into separate bedrooms, although the husband said it happened in 2001 and the wife in 2004. They occasionally took their children on separate vacations and drove to their activities in separate cars, and by 2004 were “living entirely separate wives,” the wife testified.

The husband, however, noted that the wife continued to live at home and cook her meals there when not traveling for business reasons, kept her personal belongings there, and maintained that address on her driver’s license.

Appeals Court Affirms

Superior Court Commissioner Elizabeth Hendrickson sided with the wife, and the Court of Appeal affirmed, expressly rejecting the holding of In re Marriage of Norviel (2002) 102 Cal.App.4th 1152 that physically living apart is “an indispensable threshold requirement” for separation under §771(a). 

The chief justice yesterday said the Norviel court was correct.

While the phrase “living separate and apart” is slightly ambiguous, the chief justice wrote, the most logical construction is that the parties must have separate residences, not just “separate lives.” That is also the interpretation most consistent with legislative history and case law, she said.

The statutory language, she noted, goes back to an 1870 law that also set forth a procedure by which a wife who was separated from her husband could sell her separate real property without his joinder. To do that, she had to file a declaration specifying, among other things, “her own place of residence” along with her statement that the couple was “living separate and apart.”

The plain meaning of “separate and apart” then, the chief justice wrote, had to mean living in separate dwellings. And if the Legislature intended otherwise, she said, it would have said so in one of the many subsequent enactments that used the phrase.

In addition to legislation, Cantil-Sakauye wrote, the phrase has been used in a number of Court of Appeal and Supreme Court cases, and “none of them questioned that a threshold requirement was separate residences.” And the bright-line rule provides the parties and judges with a certainty that the wife’s proposed “separate lives” test does not.

Justice’s Opinion

While all of the justices joined Cantil-Sakauye’s opinion, Justice Goodwin H. Liu, joined by Justice Kathryn M. Werdegar, added a concurrence suggesting that courts may consider “relevant changes in historical context since 1870” and find that couples who “have a living arrangement that clearly and objectively signals a complete and final termination of the marital relationship” are living separate and apart in the same dwelling. “Neither the Legislature nor this court has foreclosed [that] possibility,” Liu wrote.

Sacramento attorney Stephanie J. Finelli argued for the husband in the Supreme Court, while Lilia E. Duchrow of Ivie, McNeill & Wyatt in downtown Los Angeles argued for the wife.

The case is In re Marriage of Davis, 15 S.O.S. 3680.


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