Opinion
G062062
03-25-2024
In re Marriage of TAN NGUYEN and LYNN PHAN. v. LYNN PHAN, Appellant. TAN NGUYEN, Respondent,
Lynn Phan, in pro. per., for Appellant. Tan Nguyen, in pro. per., for Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County (Super. Ct. No. 19D002790), Sheila Recio, Judge. Affirmed.
Lynn Phan, in pro. per., for Appellant.
Tan Nguyen, in pro. per., for Respondent.
OPINION
MOTOIKE, J.
In this bifurcated marital dissolution proceeding, appellant Lynn Phan (Wife) appeals from the trial court's determination of the date of her marital separation from respondent Tan Nguyen (Husband). Wife contends the couple separated on January 5, 2011. However, following a hearing at which both parties testified, the trial court found they separated on February 27, 2019, the date alleged by Husband in his dissolution petition. Wife asserts the court's finding is not supported by substantial evidence and the evidence instead showed they separated in January 2011. Under the applicable standard of review, we find no basis to reverse the trial court's decision and therefore affirm.
PROCEDURAL BACKGROUND
Husband and Wife were married on March 9, 1997, and their only child was born that year. Husband filed a petition for dissolution on April 5, 2019, alleging their date of separation was February 27, 2019. In Wife's initial response to the dissolution petition, she stated the same date of separation. However, in an amended response, Wife asserted the date of separation was January 5, 2011.
The date of separation issue was bifurcated, and a contested hearing was held, at which both parties testified. (We detail their testimony below.) In a written ruling, the trial court found the date of separation was February 27, 2019. The court's ruling was attached to a judgment filed in October 2022, which indicated the court reserved jurisdiction over all other issues. The "Notice of Entry of Judgment" mailed by the court clerk indicated judgment was entered on October 27, 2022 on "Dissolution - reserving jurisdiction over termination of marital status or domestic partnership." Wife filed a timely notice of appeal.
Although not raised by either party, we question whether the judgment entered in October 2022 is an interlocutory decision on a bifurcated issue, which is not directly appealable. (Code Civ. Proc., § 904, subd. (a)(1); Cal. Rules of Court, rule 5.392.) "'[A] mere ruling on a bifurcated issue' . . . is not immediately appealable absent trial court certification." (In re Marriage of Macfarlane & Lang (1992) 8 Cal.App.4th 247, 256, fn. 9.) Wife did not obtain from the trial court a certificate of probable cause for immediate appellate review of the issue, nor did she file a motion in this court to allow an interlocutory appeal from a bifurcated issue. (See Fam. Code, § 2025; Cal. Rules of Court, rule 5.392; In re Marriage of Lee & Lin (2019) 41 Cal.App.5th 698, 700.) Even if the trial court's decision was not immediately appealable, we would exercise our discretion "'to treat a purported appeal from a nonappealable order as a petition for writ of mandate'" as the circumstances here justify this course. (Williams v. Impax Laboratories, Inc. (2019) 41 Cal.App.5th 1060, 1071-1072.) Accordingly, we do not decide the appealability issue and proceed to the merits of Wife's appeal.
In June 2023, this court granted Wife's unopposed motion to augment the record on appeal and the documents Wife submitted with her motion were deemed part of the appellate record. The documents Wife submitted were alleged to be exhibits that were not included in the clerk's transcript as the exhibits had been returned to the parties after the trial court's ruling. However, it appears from our review of the appellate record that some of the documents Wife submitted (Exhibits O, R, and W) were not admitted at the hearing on the date of separation and were not considered by the trial court. Because these documents were not admitted in the trial court, we are unable to consider them in this appeal. (See Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3 ["Augmentation does not function to supplement the record with materials not before the trial court"].) Husband attached several exhibits to his respondent's brief. "A party filing a brief may attach copies of exhibits or other materials in the appellate record ...." (Cal. Rules of Court, rule 8.204(d).) Exhibits attached to Husband's respondent's brief that were not submitted to the trial court were not considered on appeal.
The following evidence was presented at the hearing on the bifurcated issue of the parties' date of separation.
A. Wife Takes a Job in Burbank
In June 2010, Husband and Wife purchased a residence together in Carlsbad, where they lived with their daughter. At the end of 2010, Wife accepted a job in Burbank. On January 5, 2011, she entered into a lease agreement to rent a room in Burbank and moved to Burbank. She returned to Carlsbad every weekend to visit their minor daughter.
The parties gave differing accounts of the implications of Wife's move to Burbank. Wife testified she had concluded around December 2010 her marriage was over and she looked for a job outside of the area so she could move out, live by herself, "and find some peace." She chose the job in Burbank to get away from Husband. When she moved to Burbank, Wife told Husband their marriage was over. He did not help her move to Burbank, and he never visited her there.
Wife testified that after she moved to Burbank, she did not have a marital relationship with Husband: they had no emotional or sexual relationship; they did not engage in social activities together; and they did not celebrate holidays or birthdays. When she was in Carlsbad on the weekends, she slept in a separate room and bed from Husband; they did not eat dinner, watch television, or do activities together. He would leave during the day and return at night. She only talked to Husband about their daughter. When she discussed coparenting issues with Husband, he would tell her to mind her own business because she moved out and they were "'separate.'"
Husband, however, denied Wife told him their marriage was over in 2011 when she took the job in Burbank. According to Husband, they agreed Wife would stay in Burbank during the week while working. Husband helped Wife move her property to her Burbank rental. She came home every weekend and called on the phone every day. Husband also testified that every Friday night he drove to Burbank with their daughter to pick up Wife and drive her back to Carlsbad. On Monday morning he would take her to the station to catch the train back to Burbank.
As for their relationship, Husband testified they maintained a sexual relationship. He attended events with Wife after 2011, but only ones where their child was present. Although he testified they had gone on dates "many times," he previously admitted in a document in the dissolution proceeding that he had not been on a date with Wife since January 2011.
B. Wife Gets a Job in Orange
After working in Burbank for about two years, Wife obtained a job in Orange. She did not return to the Carlsbad residence to live. Instead, she rented a room in Anaheim for a few months.
In 2013, Wife purchased a residence in Garden Grove, using money she saved from her earnings for the down payment. Prior to purchasing the home, she did not discuss it with Husband. When she applied for a home loan, she did not include Husband's name or finances on the application. But on the application, she indicated she was "Married," and she did not select the option for "Separated." The 2013 deed of trust for the Garden Grove property listed Wife and Husband as joint tenants. Both appeared before a notary public to sign the deed of trust documents. Wife testified the title company insisted Husband's name be on the title to the Garden Grove property because they were legally married.
Wife moved into the Garden Grove residence in 2013. She rented out rooms in the house, and Husband was not involved in matters relating to the tenants. While working in Orange, Wife stayed at the Garden Grove house during the week and went to Carlsbad on the weekends to see their daughter. Wife testified Husband would stay at the Garden Grove residence on the weekends while she was in Carlsbad. They maintained this schedule for about five years, until the end of 2018, when Wife moved back to Carlsbad.
Wife refinanced the mortgage on the Garden Grove residence in 2016. She did not include Husband's name or finances on the refinance application. The 2016 deed of trust for the Garden Grove property listed Wife and Husband as joint tenants, and again, both appeared before a notary public to sign the documents.
Husband testified they did not discuss divorce while Wife was living in Burbank and Garden Grove.
C. Finances and Vacations
Throughout their marriage, Husband and Wife maintained separate bank accounts and credit cards. Their finances were separate, and they did not discuss them with each other. However, they filed joint tax returns for the years 2013 through 2018.
After she started working in Burbank, Wife paid the mortgage, property taxes, and homeowners association fees on the Carlsbad property. But they rented out a portion of the Carlsbad property and rent collected from these tenants paid at least a portion of the property's expenses. Husband paid the utilities for the Carlsbad property, as well as the general living expenses for him and their daughter. He did not pay any of Wife's expenses.
Husband acknowledged he did not contribute to the down payment on the Garden Grove residence and was not involved in the financing or refinancing of the property. From the time Wife purchased the home in 2013 until 2018, she paid the mortgage payments, taxes, insurance, and utilities on the Garden Grove property. The rent from the tenants in the Garden Grove property helped pay the mortgage and property taxes on the property. Husband did not pay any mortgage payments on the Garden Grove property. He did not contribute to the expenses concerning this residence until after he filed his petition for dissolution. After filing his dissolution petition, Husband paid the property taxes for the Garden Grove and Carlsbad properties.
In 2015, Husband borrowed money from Wife to purchase a car and he paid her back the following year.
After 2011, Husband and Wife did not vacation together without their daughter. Between May 2016 and December 2018, Husband and Wife took three vacations with their daughter. Wife testified that while they were on these trips, she did not sleep with Husband.
D. Husband Files Petition for Dissolution of Marriage
Husband testified the first time they discussed divorce was in late 2018, when they had a disagreement about the Carlsbad property, or February 2019, when they argued on the phone.
After Husband and Wife had a "bad, ugly argument" on the telephone in February 2019, he filed his petition for dissolution in April 2019.
Wife testified that when she filed her initial response to Husband's dissolution petition, she was in "hiding" in a remote area of Vietnam because he had threatened her and her family. She did not have an opportunity to discuss the contents of the response with her counsel and did not pay attention to the stated date of separation. After the document was filed, she noticed the listed date of separation was wrong and the length of her marriage was incorrectly stated. Upon her return to the United States, she had her attorney file an amended responsive petition.
In September 2019, Wife requested a domestic violence restraining order in San Diego County, alleging Husband threatened her and her family in the February 2019 telephone call. The court issued a 90-day restraining order on November 22, 2019. Wife did not seek a reissuance of the domestic violence restraining order when it expired in February 2020.
In her January 2020 deposition, Wife stated she never intended to file for divorce for three reasons. First, she was afraid Husband would harm her if she did. Second, she did not file for divorce "for her daughter's sake." Third, in her culture, divorce is sinful, shameful, and "not an option." She believed staying away from Husband was her best option. She was shocked when he filed for divorce because he had been saying he was going to divorce her but never did and she did not think he was going to do it.
DISCUSSION
Wife contends the court erred in determining their date of separation was February 27, 2019. She asserts the evidence presented at the contested hearing established there was a complete and final break in the marital relationship in January 2011, when she moved out of the marital home. We conclude the trial court's determination is supported by substantial evidence.
A. Governing Legal Principles
"Family Code section 771 classifies property acquired after the date of separation as the acquiring spouse's separate property. (Undesignated statutory references are to the Family Code.) As originally enacted, section 771 provided that '[t]he earnings and accumulations of a spouse . . ., while living separate and apart from the other spouse, are the separate property of the spouse.' (§ 771, former subd. (a).) In 2016[,] the Legislature substituted the clause 'after the date of separation of the spouses' for the clause 'while living separate and apart from the other spouse.' (§ 771, subd. (a).) At the same time, the Legislature defined 'date of separation' in a new section of the Family Code: '"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.' (§ 70, subd. (a).) In enacting section 70, the Legislature expressly abrogated the holding in In re Marriage of Davis (2015) 61 Cal.4th 846 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.' [Citations.] [Fn. omitted.]
"The 'date of separation' definition added by section 70 is consistent with case law interpreting and applying former section 771. In In re Marriage of von der Nuell (1994) 23 Cal.App.4th 730, the court explained that a separation under section 771 'requires not only a parting of the ways with no present intention of resuming marital relations, but also, more importantly, conduct evidencing a complete and final break in the marital relationship.' [Citation.] In In re Marriage of Hardin (1995) 38 Cal.App.4th 448, the court elaborated that marital separation for purposes of section 771 requires both the subjective intent to end the marriage and objective conduct demonstrating such intent. [Citation.] In In re Marriage of Manfer (2006) 144 Cal.App.4th 925, 930, the court instructed that the parties' individual intents are objectively determined from all relevant evidence before the court. '"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."'" (In re Marriage of Lee &Lin, supra, 41 Cal.App.5th at pp. 700-701.)
The parties' "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." (In re Marriage of Hardin, supra, 38 Cal.App.4th at p. 453, fn. omitted.) Relevant considerations include whether the parties continued to see each other regularly, whether their economic relationship changed, whether they acquired real property together, and whether the spouse disclosed to the other spouse or another person an intent to end the marriage. (Id. at p. 454.)
"The date of separation is a factual issue established by a preponderance of the evidence. We review the trial court's determination for substantial evidence [citation], indulging all legitimate and reasonable inferences to uphold the court's decision." (In re Marriage of Lee &Lin, supra, 41 Cal.App.5th at p. 702.)
B. Substantial Evidence Supports the Trial Court's Determination
In its written ruling, the trial court discussed section 70 and case law concerning the date-of-separation test. Addressing the evidence presented at the hearing, the court noted "there was a lot of conflicting evidence and there are credibility issues concerning the testimony of both parties." The court found Husband's testimony the parties regularly engaged in sexual relations until 2018 "was exaggerated," as was Wife's testimony she expressed an intent to end the marriage in 2011. Explaining its ruling, the court stated: "Based on all of the evidence, the court determines a complete and final break in the marriage did not occur in 2011, as [Wife] argues. First, while she was clearly unhappy with the marriage and apparently wanted to get away from [Husband], there was no clear expression of an intent to end the marriage in 2011. Further [Wife]'s conduct after 2011 was inconsistent with an intent to end the marriage."
The court cited several facts to support its finding Wife's conduct was inconsistent with an intent to end the marriage: (1) In her original response, Wife stated the date of separation was February 27, 2019; (2) The parties were primarily financially independent from each other but "did intermingle some finances at times"; (3) The parties filed joint tax returns with the filing status of "'[m]arried filing jointly'" for the tax years 2013 through 2018; (4) The deeds of trust for the Garden Grove property recorded in 2013 and 2016 identify the "'Borrower'" as Wife and Husband as joint tenants and both Wife and Husband personally appeared and signed the documents; (5) Wife consistently returned to the Carlsbad residence on the weekends after moving to Burbank and later to Anaheim for work; she took the train back on weekends and Husband drove her to the Carlsbad residence from the train station; (6) There was no evidence anyone was aware prior to 2019 that the parties separated; (7) The parties took family vacations together after 2011; (8) Wife was surprised when Husband filed for divorce in 2019; she never intended to file for divorce; and (9) Although there was no evidence the parties exchanged gifts or cards after 2011, there was no evidence they did so prior to 2011. Based on its consideration of all the evidence, the court concluded the date of separation was February 27, 2019.
Wife contends she presented evidence satisfying both requirements for establishing the date of separation under section 70, subdivision (a): (1) She testified she told Husband the marriage was over in 2011 when she moved to Burbank; and (2) Her conduct was consistent with her intent to end the marriage. She asserts Husband's evidence lacked credibility and did not support a February 27, 2019 date of separation. Her argument essentially asks us to perform our own evaluation of the witnesses' credibility and make our own factual findings, which we cannot do under the applicable standard of review. "[W]e are bound by the trial court's interpretation of the facts. [Citations.] On appeal, we have no power to weigh or judge the effect of evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence. That is the province of the trial court." (In re Marriage of Liu (1987) 197 Cal.App.3d 143, 156.)
Whether Wife told Husband their marriage was over and whether her conduct was consistent with an intent to end the marriage were disputed factual issues. Although some evidence supports Wife's date of separation, other evidence supports Husband's date of separation. Our role is not to reevaluate the trial court's credibility determination or to resolve conflicts in the evidence. Our job is only to determine whether the trial court's finding on the date of separation is supported by substantial evidence, and we conclude it is.
Wife addresses each of the facts the court cited to support its finding Wife's conduct was inconsistent with an intent to end the marriage. She contends the court erred by relying on the date of separation stated in her initial response to the dissolution petition because it was later amended to reflect a date of separation of January 5, 2011. Even assuming, without deciding, the court should not have relied on the date in Wife's initial response, substantial evidence remains.
Looking at relevant considerations, Wife's conduct was inconsistent with an intent to end the marriage. Wife and Husband maintained a financial relationship. Wife contributed financially to the community by paying the mortgage, taxes, and homeowners association fees for the Carlsbad property after she began working in Burbank, and they continued to file joint tax returns. Wife maintained personal ties with Husband. There was undisputed evidence the parties went on vacations together with their adult daughter. Wife returned to the Carlsbad property, the marital home, every weekend to see their daughter. Wife did not tell others of her intent to separate. When Wife prepared the loan application for the Garden Grove property, she did not indicate she was separated and she listed the Carlsbad address as her home address.
We conclude the trial court's determination of the date of separation is supported by substantial evidence.
DISPOSITION
The judgment filed on October 27, 2022 is affirmed. Husband is awarded costs on appeal.
WE CONCUR: BEDSWORTH, ACTING P. J. DELANEY, J.