Metropolitan News-Enterprise


Tuesday, July 3, 2018


Page 4


Court of Appeal:

Couple Had ‘Separated’ Though Living in Same House

Justice Greenwood Denies Decision Contravenes Holding of State High Court Which Applies to Controversy, Though Legislatively Abrogated Prospectively


By a MetNews Staff Writer


The Sixth District Court of Appeal has held that the date of separation of a couple was when the wife sued for divorce in 2012, even though the parties continued to live under the same roof—and for a time shared the same bed—and not in 2015 when the husband, under orders by a judge, moved out of the house.

Presiding Justice Mary J. Greenwood insisted in the opinion, filed Friday and not certified for publication, that the decision does not conflict with a recent utterance by the California Supreme Court.

Undisputed is that the state high court’s 2015 opinion—which says that “separation” entails separate residences—is applicable to the present dispute, although that decision was legislatively abrogated effective Jan. 1, 2017.

 In the present case, the controversy centers on whether the husband, Gregory Jackson, has an entitlement to a share in the earnings of his wife, Araceli Henley, during the period from June 25, 2012, when she brought her action, to November 2014, when she was laid off. The date of separation of the spouses is the determining factor in light of Family Code section 771(a), which provides:

“The earnings and accumulations of a spouse..., while living separate and apart from the other spouse, are the separate property of the spouse.”

Cantil-Sakauye’s Opinion

Greenwood’s opinion rejects Jackson’s contention that the Santa Cruz Superior Court’s setting of the date of separation as Feb. 6, 2015 contravenes the Supreme Court’s interpretation of 771(a), in an opinion rendered later that year in In re Marriage of Davis. There, Chief Justice Tani G. Cantil-Sakauye said:

“In this case we consider whether a couple may be ‘living separate and apart,’ for purposes of section 771(a), when they live together in the same home. We conclude the answer is no. The statute requires the spouses to be living in separate residences in order for their earnings and accumulations to be their separate property.”

She went on to say:

“[W]e are convinced 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. Consistent with the statute’s history and the developed standard articulated by the case law, we hold that ‘living separate and apart’ refers to a situation in which spouses are living in separate residences and at least one of them has the subjective intent to end the marital relationship, which intent is objectively evidenced by words or conduct reflecting that there is a complete and final break in the marriage relationship.”

Greenwood Cites Footnote

Greenwood explained her seeming departure from that holding by pointing to footnote 7 in Davis which reserves the question as to whether spouses can effectively create separate residences within the same abode. The footnote says:

“Under the facts presented by this case, we have no occasion to consider, and expressly reserve the question, whether there could be circumstances that would support a finding that the spouses were ‘living separate and apart,’ i.e., that they had established separate residences with the requisite objectively evidenced intent, even though they continued to literally share one roof.”

The presiding justice did not explain how the parties had established separate residences within the house they shared. She pointed out, however, that Henley had asked Jackson repeatedly to leave the house and he refused.

According to Henley’s testimony, Greenwood recited, she and her husband, between whom intimate relations had ceased, “continued to share a bed because there was no other place for her to sleep given the 7 occupants of the residence, but she imagined he was not there,” sleeping on “the very edge of the bed,” and after “space became available in the home, she moved into another room.”

‘Exception’ Invoked

Greenwood reasoned:

“Husband’s conduct provided a sufficient basis to invoke the exception in footnote 7 of Davis; he created circumstances in which the parties objectively manifested the requisite evidenced intent, ‘even though they continued to literally share one roof.’…To hold otherwise would incentivize a recalcitrant spouse to manipulate the law by ignoring the partner’s expressed intentions and refusing to move out based on strategic or psychological motives. The trial court recognized this when it ordered husband to vacate the residence and stated, ‘This is sick,’—a succinct description of the pathology at work here.”

The justice continued:

Davis did not explicitly address the circumstance of a spouse using ongoing occupation of the family residence as a form of emotional abuse. Here the trial court viewed Husband’s conduct in that light and therefore invoked its authority to order Husband to move out….We conclude the record supports the trial court’s determination of the date of separation and, like the trial court, we decline ‘to reward his bullying behavior.’ ”

New Statute

Family Code §70, nullifying Davis, now provides:

“(a) 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.

“(b) In determining the date of separation, the court shall take into consideration all relevant evidence.

“(c) It is the intent of the Legislature in enacting this section to abrogate the decisions in In re Marriage of Davis (2015) 61 Cal.4th 846 and In re Marriage of Norviel (2002) 102 Cal.App.4th 1152.”

Norviel is a Sixth District opinion, cited with approval in Davis, in which the court said:

“We conclude that living apart physically is an indispensable threshold requirement to separation, whether or not it is sufficient, by itself, to establish separation.”

Significance to Jackson

Setting the date of separation as of the time Jackson moved out of the house would have rendered Henley’s earnings before that time community property. She was drawing considerably more pay than he; Jackson had returned to school in 2004 to complete his undergraduate degree, going on to obtain a master’s degree, and was working on a PhD at the time of trial.

Between 2004 and 2013, his average annual pay was $7,953, while Henley was drawing an average annual salary of $120,643, the opinion notes.

In addition to seeking a share of Henry’s pay for 2012-14, Jackson sought $5,000 a month in permanent spousal support from Henley, who is now a “senior big data software engineer” at Yahoo. Greenwood said the trial court did not abuse its discretion in imputing to Jackson an earning capacity of $200,000 a year, notwithstanding his professed inability to find employment.

“Given the extent of Husband’s education and training, and given that he had previously earned more than $200,000 before attaining his degrees, we perceive no abuse of discretion in the trial court’s imputation,” she wrote.

Other Aspects

Greenwood also found no abuse of discretion in awarding a house in the state of Washington to Henley, with no equalizing payment to Jackson, on equitable grounds. Jackson had purchased the home with community funds without his wife’s knowledge; his mother lived there until her death in 2010; he held the property in his own name as an “unmarried man,” then transferred it to a corporation he controlled.

Despite the court’s order to convey the property to Henley, Jackson tried to sell it to a third party, and also refused to convey the California home to her, as required by the judgment. The appeals court affirmed a $30,000 sanction imposed on Jackson, consolidating the appeal from the judgment with the appeal from the sanction order.

The case is Marriage of Henley & Jackson, H043170, H043753.


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