Friday, January 23, 2026
Page 3
Court of Appeal:
Spouse Not Bound by Separation Date in Her Own Pleading
Opinion Says Error to Find That Allegation in Dissolution Petition Amounts to Judicial Admission Where Husband Initially Disputed Timeline, Later Conceded Only After ‘Extensive Colloquy’ With Trial Judge
By Kimber Cooley, associate editor
A woman who said in her dissolution-of-marriage petition that she separated from her husband in 2012 was not foreclosed from arguing at trial that the actual year of the parting was 2020, Div. Four of the First District Court of Appeal held yesterday,
The fact that the husband concurs in the contention that separation incurred in 2020 rendered the trial court’s ruling that the wife was bound by the pled assertion error, the justices declared.
The date is significant because anything earned or acquired after separation may be deemed to be separate property. Yesterday’s opinion, written by Justice Jeremy M. Goldman and joined in by Presiding Justice Tracie L. Brown and Justice Jon B. Streeter, addresses an appeal by the petitioning spouse, Tara Scott.
Acknowledging that “[t]he trial court did not specify the doctrinal basis for its conclusion that [the wife] was bound by the date of separation alleged in her…petition,” Goldman pointed out that the husband only “[sought] to defend the ruling” on the basis that the pleading constituted a judicial admission. He wrote:
“Although the parties have not identified a case that is on all fours with this one, we are unpersuaded that Thomas’s belated on-the-fly accession—after it appeared the parties were unprepared to go forward with a trial limited to the three-month period the court was willing to entertain—should bind Tara to the date alleged in the amended petition.”
Dissolution Petition
The question arose after Tara Starr petitioned to dissolve her marriage to Thomas Starr in December 2020, asserting a separation date of March 20, 2009. Her husband’s response specified Sept. 15, 2020 as the day that the parties split up.
In June 2021, she filed an amended petition, asserting June 2, 2020 as the true date of separation. The following year, Tara Star asked the court to bifurcate the trial as to the marital timeline and attached a declaration attesting that the couple had actually parted ways in 2012 but that she had been advised by her former lawyer to allege a later date to “lessen the expense of litigation.”
In dueling trial briefs, Tara Starr asked the court to find a date of separation in August 2010 or “at the very latest, on August 26, 2012” and Thomas Starr asserted that the parties split in September 2020.
In July 2024, Contra Costa Superior Court Judge Palvir Shoker announced a tentative decision, asking for argument on “why June [2, 2020] should not be the date of separation.”
Saying that the amended pleading seemed to reflect “some sort of meeting of the minds” on the topic as it changed the date to “closer to what [Thomas Starr] was claiming,” she opined that the petitioner had a right to “have her day in court” but “disregard[ing]” the pleadings seemed unfair to the non-petitioning spouse. She declared:
“The year will be 2020.”
After Thomas Starr requested that the trial proceed as to whether the separation occurred in June or September, Shoker asked the parties whether they had evidence that “only address[ed] those months.” Tara Starr indicated that she would “have to request a continuance,” and Thomas Starr remarked that he would “accept[] the June date.”
Judicial Admission
Goldman pointed out that a judicial admission based on an allegation in a pleading is fundamentally different from evidence in that it operates as a waiver of proof under the principle that a party is bound by her well-pleaded material allegations. However, he remarked:
“A plaintiff’s affirmative pleading allegation may constitute a judicial admission…, but the doctrine presupposes that the adverse party does not contradict the allegation. ‘[A] judicial admission is ordinarily a factual allegation by one party that is admitted by the opposing party. The factual allegation is removed from the issues in the litigation because the parties agree as to its truth.’…Thus, if a factual allegation is treated as a judicial admission, then neither party may attempt to contradict it—the admitted fact is effectively conceded by both sides.”
Acknowledging that Thomas Starr “changed course at the last minute and accepted the date alleged in the amended petition” after “extended colloquy with the court,” he commented:
“Thomas maintained that the issue was contested throughout the proceedings….He never acted as if the date alleged in the amended petition were conclusive as to him, and he appeared for trial intending to argue a date of separation in September 2020. Finally, although the trial court observed that it was necessary to consider prejudice, it found prejudice to Thomas only in the sense that his own attorney had hitherto failed to identify or argue the pleading issue the court itself raised on the morning of trial. Thus, the prejudice to Thomas that the court identified was not caused by Tara.”
Under those circumstances, the justice declared:
“[W]e conclude that the court erred by treating the date alleged in the amended petition as a judicial admission.”
Rejecting a bid by the wife to have the matter remanded with instructions to have the matter assigned to a different trial judge, Goldman noted that Code of Civil Procedure §170.1(c) contemplates disqualification when a jurist has indicated animus, bias, or a disregard of the law and that, based on the record, “the average person would not doubt Judge Shoker’s impartiality.”
The case is In re Marriage of Starr, 2026 S.O.S. 224.
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