Opinion
G052403
03-16-2017
In re Marriage of LOLA R. ESTEY and SAMSON C. ANG. LOLA R. ESTEY, Appellant, v. SAMSON C. ANG, Respondent.
Law Offices of Jeffrey W. Doeringer and Jeffrey W. Doeringer for Appellant. Law Offices of Marjorie G. Fuller and Marjorie G. Fuller for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 02D000343) OPINION Appeal from a judgment of the Superior Court of Orange County, Ronald P. Kreber, Judge. Affirmed. Law Offices of Jeffrey W. Doeringer and Jeffrey W. Doeringer for Appellant. Law Offices of Marjorie G. Fuller and Marjorie G. Fuller for Respondent.
INTRODUCTION
The combatants in this divorce case - aptly characterized by the family court as a "nuclear war" - are appellant Lola Estey and respondent Samson Ang. Estey appeals a finding made in 2014, after an eight-day trial, of the date of separation. The court found that the date was December 11, 2001, the date Estey had specified in her 2002 petition for divorce.
Our review is somewhat complicated by some changes in the law regarding the date of separation since the court made its finding in 2014, in particular the California Supreme Court's In re Marriage of Davis opinion issued in 2015. The Davis opinion prompted the Legislature to make some changes and additions to the Family Code that became effective on January 1, 2017, and apply to pending cases. In effect, the Legislature abrogated the bright-line rule announced in Davis; it also inserted a definition of "date of separation" into the Family Code. The new statutory definition differs slightly from the judicially crafted test in use before Davis, but in this case the new definition and the old test are so close that any difference is nugatory.
At oral argument, appellant correctly conceded that in this case the new statutory definition was essentially the same as the old Hardin test.
We affirm the trial court's finding of the date of separation. The record indicates the family court considered the elements required by the new statutory definition when it chose the date, even though it was operating under the old, pre-Davis test. Although the evidence was unquestionably conflicting, sufficient evidence supports the family court's conclusion that the parties separated as of the date initially identified in Estey's petition - December 11, 2001.
FACTS
Estey and Ang were married in 1985. They have four children together. Ang also has two children from a previous marriage.
Estey filed her petition for divorce, her second petition, in January 2002, listing December 11, 2001, as the date of separation. At that time, the couple was living in Trabuco Canyon. Estey moved to Lancaster, where her mother lived, taking the four children with her. She got a job with the Antelope Valley Union High School District, beginning in August 2002. She worked there until 2011, when she returned to Orange County with the two younger children, who were still in school, because she lost her job. She filed an amended petition for divorce in April 2012. This time she specified the date of separation as April 24, 2012.
Estey filed for divorce in 1990. She and Ang subsequently reconciled, bought a house, and had two more children.
The date of separation issue was tried over eight days between September and December 2013. The court issued a lengthy post-trial ruling on January 10, 2014, fixing the date of separation as December 11, 2001. Estey then submitted an 11-page request for a statement of decision, containing 22 queries, some with several subparts. She also filed objections to Ang's proposed statement of decision. The court issued its statement of decision on March 28, 2014, confirming its finding that the date of separation was the one specified in Estey's 2002 petition - December 11, 2001. The court based its finding on Estey's 2002 petition for divorce; the repeated reaffirmation, under penalty of perjury, of the date of separation specified in the 2002 petition; the default, custody order, move-away order (permitting her to take the children to Lancaster), and child support order she obtained against Ang that year; the permanent move to Lancaster for her and the children; her employment in Lancaster for nine years; the separation of households, bank accounts, and tax returns; and Estey's representation of herself as a single person.
The family court refused a request to certify the date of separation finding for interlocutory appeal. Estey filed a writ petition, which was summarily denied. (Estey v. Superior Court (Ang), G051068.) This appeal was filed after the entry of a judgment of dissolution in August 2015, which judgment also adjudicated support, the division of community property, the confirmation of separate property, and attorney fees.
DISCUSSION
I. Date of Separation
Estey contends on appeal that the correct date of separation is not December 11, 2001, the date specified in her petition for divorce filed in January 2002, but April 24, 2012, the date specified in her amended petition for divorce, filed on April 26, 2012.
"Date of separation is a factual issue to be determined by a preponderance of the evidence. [Citation.] 'Our review is limited to determining whether the court's factual determinations are supported by substantial evidence and whether the court acted reasonably in exercising its discretion.' [Citation.]" (In re Marriage of Manfer (2006) 144 Cal.App.4th 925, 930.)
In 2013 and 2014, when the matter was tried and the statement of decision issued, Family Code section 771, subdivision (a), provided: "The earnings and accumulations of a spouse and the minor children living with, or in the custody of, the spouse, while living separate and apart from the other spouse, are the separate property of the spouse." The Family Code did not define the phrase " living separate and apart," so a judicial definition was crafted. A couple lived separate and apart for purposes of determining separate property as of the "date of separation," which was fixed by examining subjective intent and objective conduct. "[T]he date of separation occurs when either of the parties does not intend to resume the marriage and his or her actions bespeak the finality of the marital relationship. There must be problems that have so impaired the marriage relationship that the legitimate objects of matrimony have been destroyed and there is no reasonable possibility of eliminating, correcting or resolving these problems. [Citations.]" (In re Marriage of Hardin (1995) 38 Cal.App.4th 448, 451.) "The ultimate question to be decided in determining the date of separation is whether either or both of the parties perceived the rift in their relationship as final. The best evidence of this is their words and actions. The husband's and the wife's subjective intents are to be objectively determined from all of the evidence reflecting the parties' words and actions during the disputed time in order to ascertain when during that period the rift in the parties' relationship was final." (Id. at p. 453.) The family courts used a global approach to decide a date of separation. "All factors bearing on either party's intentions 'to return or not to return to the other spouse' are to be considered. [Citation.] No particular facts are per se determinative. The ultimate test is the parties' subjective intent and all evidence relating to it is to be objectively considered by the court." (Id. at p. 452.)
All further statutory references are to the Family Code unless otherwise indicated.
In 2015, however, the legal landscape shifted dramatically with the California Supreme Court's opinion In re Marriage of Davis (2015) 61 Cal.4th 846 (Davis). In Davis, the Supreme Court announced a bright-line rule: a couple was not "living separate and apart" under section 771 while they continued to live under one roof. (Id. at p. 865.) By inference, then, unless one of the spouses moved out, subjective intent or conduct indicating the end of the marital relationship did not matter. If they lived in the same residence, the spouses were not separated.
The Davis opinion evoked a great deal of criticism, notably from family law practitioners who pointed out that there could be a host of reasons why two people whose marriage was at an end continued to occupy the same house. More to the point, the Legislature took swift action to override Davis. Effective January 1, 2017, the phrases "living separate and apart" and "living separately" were eliminated from the Family Code, not just in section 771, but in other code sections as well. (See §§ 914, 4338.) The Legislature also added a definition of "date of separation" and directions for determining it. (§ 70.) The professed purpose of the legislation was to "change[] the law effectively back to what it was before . . . Davis . . . and that change will impact existing cases (cases where the date of separation has not yet been determined by a court), unless doing so would substantially interfere with the rights of the parties." (Assem. Com. on Judiciary, Rep. on Sen. Bill No. 1255 (2015-2016 Reg. Sess.) as amended June 1, 2016, p. 10.)
"The Supreme Court's [Davis] ruling removes the ability for a divorcing couple to continue to co-parent their children in the same house during the divorce proceedings and still keep their finances separate. This forces at least one spouse to find and pay for alternative housing in order to establish a date of separation earlier than the final court order date at a time when families are trying to closely monitor their spending and transition the family unit through a trying time. Often, one spouse cannot afford to move to a separate residence, and can only afford such a move once a divorce is finalized." (Sen. Rules Com., Off. of Sen. Floor Analyses, analysis of Sen. Bill No. 1255 (2015-2016 Reg. Sess.) as amended June 1, 2016.)
"Moreover, families may definitively separate, but be unable to move to separate residences because of the high price of housing here in California, where an average two-bedroom apartment in Los Angeles rents for almost $2,500 a month . . . and the median house price in the Bay Area is over $650,000 . . . . Alternatively, couples may choose to divorce, but remain in the same house for other reasons, such as more effective co-parenting." (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 1255 (2015-2016 Reg. Sess.) as amended June 1, 2016.)
"This bill would remedy this situation, ensuring nobody is forced to either continue in a bad marriage, or face being forced out of the residence." (Sen. Rules Com., Off. of Sen. Floor Analyses, analysis of Sen. Bill No. 1255 (2015-2016 Reg. Sess.) as amended June 1, 2016.)
The new section 70 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 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." (Sen. Bill No. 1255 (2015-2016 Reg. Sess.) § 1.) The new section puts a slightly different twist on the pre-Davis analysis. The intent to end the marriage must be "expressed" to the other spouse, and it is the conduct of the "expressing" spouse that is evidence of the "complete and final break in the marital relationship." The family court must consider "all relevant evidence" in determining the date of separation.
Although the family court was operating under the pre-Davis rules when the trial took place in 2014, the record indicates it considered the evidence of Estey's expressed intent and her conduct - as well as other relevant evidence - when it determined the date of separation. Estey expressed her intent to end the marriage by filing for divorce in 2002, by serving Ang with the divorce papers, and by never dismissing the case. In her petition, she declared under penalty of perjury that the date of separation was December 11, 2001. She represented to the court, again under penalty of perjury, when she requested support and custody orders in 2002 that she and Ang were separated. Her conduct of moving from Orange County to Lancaster with her children, obtaining child support and move-away orders from the family court, getting a new job, separating her finances from Ang's, and representing herself as single was consistent with her intent to end the marriage at that time.
Although the court's 2014 ruling touched briefly on reconciliation, Estey presented no argument or authority in her opening brief regarding this issue. Her theme throughout was that there was no separation at all until 2012. Issues for which a party fails to provide argument or authority are deemed waived. (Walters v. Boosinger (2016) 2 Cal.App.5th 421, 433, fn. 16; Brandwein v. Butler (2013) 218 Cal.App.4th 1485, 1517, fn. 21.)
Estey's appeal is in essence an attack on the sufficiency of the evidence. There was unquestionably some conflict in the evidence of intent and conduct. But it is not our job to resolve conflicts in the evidence - the trial court does that. When the evidence conflicted, the trial court by and large believed Ang, not Estey. Resolving issues of credibility is also the trial court's province. Our job is to determine whether substantial evidence supports the trial court's decision, resolving all conflicts in favor of the judgment. If it does, as it does here, we affirm. (Muzquiz v. City of Emeryville (2000) 79 Cal.App.4th 1106, 1120.)
Estey emphasized the exchange of birthday and anniversary cards with affectionate signatures and trips as a couple and as a family after 2002 as evidence that the marriage was not over. The court took this evidence into account, but determined that evidence of Estey's intent to end the marriage in 2001 and confirming conduct outweighed contrary evidence.
II. Statement of Decision
The family court issued its ruling on January 10, 2014. Estey then filed an 11-page request for statement of decision, in large part arguing with the court over evidence. Ang filed a proposed statement of decision in February, and Estey filed objections to the proposed statement on March 17, 2014. The objections again dealt mainly with evidence. The court adopted Ang's proposed statement and issued its "Statement of Decision re Date of Separation" on March 28, 2014. Estey now asserts that the statement of decision was so inadequate as to constitute reversible error.
"Section 634 of the Code of Civil Procedure does not require that a finding be made as to every minute matter on which evidence is received at the trial, and under the circumstances the refusal of the court to make specific findings on every matter proposed in defendant's counterfindings does not require a reversal of the judgment." (Coleman Engineering Co. v. North American Aviation, Inc. (1966) 65 Cal.2d 396, 410.)
Estey asserts that the statement of decision is defective, and constitutes reversible error, because the court did not include evidence of subjective intent or conduct. The statement of decision included ample evidence of intent and conduct. The evidence of Estey's intent to end the marriage was her petition for divorce, served on Ang. The evidence of her conduct was getting orders from the family court for custody and support, moving to Lancaster with the four children, working in Lancaster for nine years, maintaining her own household and bank accounts during that time, filing taxes as a single person, and representing herself as single.
Estey also faults the statement of decision for not adhering closely to the items identified in her request for a statement. A statement of decision deals with ultimate facts, not minute evidentiary matters. A detailed evidentiary analysis is not required. (People v. Casa Blanca Convalescent Homes, Inc. (1984) 159 Cal.App.3d 509, 524.) "[A] statement of decision is adequate if it fairly discloses the determinations as to the ultimate facts and material issues in the case. . . . [T]he term 'ultimate fact' generally refers to a core fact, such as an essential element of a claim. [Citation.] Ultimate facts are distinguished from evidentiary facts and from legal conclusions. [Citations.]" (Central Valley General Hospital v. Smith (2008) 162 Cal.App.4th 501, 513.)
Only if the statement failed to include findings on a material issue would the court commit reversible error, and then only if the judgment was not otherwise supported. (Hellman v. La Cumbre Golf & Country Club (1992) 6 Cal.App.4th 1224, 1230.) The only material issue in the 2013 trial was the date of separation. The court determined the date and explained in the statement of decision the evidence it relied on to arrive at this determination. "[A] trial judge [cannot] be required to sift through a host of improper specifications in search of the few arguably proper ones. A party cannot be prevented from using the request as a way of arguing with the court rather than clarifying the grounds of its decision. But neither should a party who makes that choice be entitled to rely on the resulting document to insulate the judgment from the presumption of correctness." (Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 559.)
The point of requiring a statement of decision is to facilitate appellate review, by articulating the basis of the trial court's decision. (In re Marriage of Fong (2011) 193 Cal.App.4th 278, 294.) It is not an exercise in busywork. The statement of decision in this case gave us the information we needed to review the court's decision. Estey's complaints about the statement are meritless.
III. Motion to Strike
After Estey filed her reply brief, Ang filed a motion to strike the last 15 pages as raising an issue for the first time. Pages 43 through 57 of Estey's reply brief discussed a hearing before a referee on issues of support, division or property, and attorney fees that took place in February 2015, well after the determination of the date of separation. The ground for Ang's motion is that Estey did not raise any issue with respect to the rulings from the 2015 trial in her opening brief.
Estey's notice of appeal, filed on August 7, 2015, identified as the subject of the appeal the judgment entered on the same day, which dealt with both the date of separation and with issues - primarily financial and property issues - postponed until after the date of separation trial. She included the date of separation finding of March 28, 2014, as part of the appeal and observed that she "may" challenge the child support order issued as part of the 2015 judgment.
The focus of Estey's opening brief, however, was the date of separation and the statement of decision. Although she alluded to events subsequent to the date of separation trial, the purpose of these allusions was to support her argument that the couple did not separate until 2012. She offered no argument or authority specifically or independently challenging the findings of the 2015 trial.
We do not consider issues raised for the first time in a reply brief. (See Los Angeles Memorial Coliseum Com. v. Insomniac, Inc. (2015) 233 Cal.App.4th 803, 822; Sourcecorp, Inc. v. Shill (2012) 206 Cal.App.4th 1054, 1061-1062; American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453.) And even assuming the findings of the later trial were mentioned in the opening brief, issues presented without argument or citation to authority are deemed waived. (Walters v. Boosinger, supra, 2 Cal.App.5th at p. 433, fn. 16; Brandwein v. Butler, supra, 218 Cal.App.4th at p. 1517, fn. 21.) Estey presented no argument or authority regarding these findings in the opening brief.
We need not strike the 15 pages of Estey's reply brief, however. The usual way of dealing with issues raised for the first time in a reply brief is to disregard them. (See Hawran v. Hixson (2012) 209 Cal.App.4th 256, 268.) We have done so here.
DISPOSITION
The finding of date of separation is affirmed. The motion to strike pages of Estey's reply brief is denied. Respondent is to recover his costs on appeal.
BEDSWORTH, ACTING P. J. WE CONCUR: MOORE, J. ARONSON, J.