Opinion
D070286
04-28-2017
In re the Marriage of NARAYANAN KARUPPIAH and ROSALIN THURAIRAJAH. NARAYANAN KARUPPIAH, Respondent, v. ROSALIN THURAIRAJAH, Appellant.
Rosalin Thurairajah, in pro. per., for Appellant. Kristine C. Blagof 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. D527881) APPEAL from a judgment of the Superior Court of San Diego County, Robert Longstreth, Judge. Affirmed in part, reversed in part, and remanded with directions. Rosalin Thurairajah, in pro. per., for Appellant. Kristine C. Blagof for Respondent.
Narayanan Karuppiah (Husband) petitioned to end his marriage with Rosalin Thurairajah (Wife), and the trial court entered a judgment of dissolution. In entering judgment, the court rejected Wife's argument that Husband transmuted his separate property to Wife as her separate property during the marriage by creating the Rosalin Gowry Thurairajah Separate Property Trust (the Trust). The court also found the parties separated on February 1, 2010, after a short-term marriage, and terminated jurisdiction over spousal support. On appeal, Wife challenges the court's ruling that no transmutation occurred. She also contests the court's finding as to the date of separation and its termination of jurisdiction over spousal support.
We affirm in part, reverse in part, and remand with directions. On independent review, we conclude Husband did not transmute his separate property to Wife as her separate property when the parties created the Trust. Ordinarily, we would also affirm the court's finding as to the date of separation and its termination of jurisdiction over spousal support. However, due to intervening changes in the law, we return the matter to the trial court to determine whether the separation date of February 1, 2010, remains effective. As we explain, in making this determination on remand the trial court should consider: (1) whether this case falls within a limited exception postulated in In re Marriage of Davis (2015) 61 Cal.4th 846 (Davis)—i.e., by February 1, 2010, the parties "established separate residences with the requisite objectively evidenced intent, even though they continued to literally share one roof" (id. at p. 864, fn. 7); and/or (2) if the 2016 amendments to the Family Code abrogating Davis should apply retroactively (Fam. Code, § 4, subds. (c), (e), (h)). To the extent the February 1, 2010 separation date remains effective, the trial court would appear to be well within its jurisdiction to terminate jurisdiction over spousal support for this short-term marriage. (§§ 4336, 4320, subd. (l).)
Further statutory references are to the Family Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Husband and Wife married in a civil ceremony in January 2004. Wife entered the marriage without assets; Husband entered owning a house (that became the family home) and investment and retirement accounts.
At the time they married, Husband was engaged in litigation against his former employer. His attorney advised him to protect his assets against potential identity theft, and Husband decided to put all of his separate assets in a trust. Husband and Wife created the Trust on June 30, 2004, designating Wife as Settlor and Trustee. Nearly all the assets held in the Trust were Husband's separate property, acquired before marriage. A document, labeled "Schedule A," identified the assets held in the Trust (Schedule A assets). In signing Schedule A, Husband transmuted "any community property interest I may have in the above-referenced property to the sole and separate property of [Wife]." Wife signed a separate "Transmutation and Conveyance of Separate Property" document the same day transmuting any separate property Wife received through the Trust back to community property. In July 2004, Husband filed a quitclaim deed to the family home placing that Schedule A asset in the Trust.
The couple had a daughter in 2006. In 2007, Wife wanted to get married in the Catholic church. The church required the parties to live separately while Husband was evaluated. Wife moved into another bedroom of the family home, and the two stopped living as a married couple. In the course of the three-year church evaluation, the marriage fell apart.
On February 1, 2010, Husband realized the marriage could not continue. The two discussed a divorce at that time, and Husband took steps to separate their finances. Husband filed a petition for dissolution in San Diego Superior Court in February 2011. His original petition indicated the couple separated in 2007, when the church required them to live separately. His amended petition alleged a separation date of February 1, 2010.
In June 2011, Husband and Wife appeared before family court for custody proceedings. The court awarded Husband and Wife joint legal custody of their daughter, and joint physical custody with equal time-share while they resided in the same home. Wife then filed a request for exclusive use of the family home. The court denied her request in November 2011 but ordered Husband to continue to pay household expenses, mortgage, taxes, and utilities. The court reserved jurisdiction over spousal support, finding Wife had ample assets to support herself.
In September 2012, the family court considered Wife's new request for child support, spousal support, and attorney's fees. At the hearing, the court questioned Wife about her liquidation of Trust assets; it directed Wife to stop withdrawing from the Trust and provide an accounting for funds she had spent. The court also ordered Husband to pay Wife $1,237 per month in child support, reserving jurisdiction over spousal support, and requiring him to continue paying the mortgage, taxes, insurance, and utilities for the family home. The court admonished Wife pursuant to section 4330 and Gavron to make reasonable efforts to provide for her needs.
Section 4330, subdivision (b) provides, "[w]hen making an order for spousal support, the court may advise the recipient of support that he or she should make reasonable efforts to assist in providing for his or her support needs, taking into account the particular circumstances considered by the court pursuant to Section 4320 . . . ." In turn, section 4320 lists factors to consider in setting spousal support.
Pursuant to In re Marriage of Gavron (1988) 203 Cal.App.3d 705, courts must advise supported spouses of their expectation that the supported spouse will become self-supporting within a reasonable time. (Id. at pp. 711-712.) Absent such notice, it is an abuse of discretion for the court to cut off support based on a supported spouse's failure to make good faith efforts toward self-support. (In re Marriage of Schmir (2005) 134 Cal.App.4th 43, 58.)
The case proceeded to a three-day bench trial in February 2016. The court received into evidence the Trust documents, account statements for the Schedule A assets, Wife's accounting declaration of her expenditures of Trust assets, and a vocational evaluation of Wife by expert Kathleen Young. The court heard testimony from Wife, Husband, and the attorney who prepared the Trust documents.
The record does not indicate the reason for the five-year delay in bringing the case to trial. Husband's counsel asserted below that Wife delayed proceedings, seeking mediation to postpone an earlier trial date.
Wife testified that Husband transmuted the Schedule A assets from his separate property to Wife's separate property when creating the Trust. She pointed to three family pictures since 2010, a shared Thanksgiving meal, a check from Husband to her church in March 2010, and their continued residence in the family home to argue she and Husband had yet to separate at trial. She conceded she and Husband did not share a bedroom, were not sexually intimate, and stopped marital counseling in 2010. An accountant by trade, Wife claimed she had applied for three hundred to four hundred jobs over a three-year period and taken four classes, but received only a few interviews and no job offers. Wife's accounting declaration indicated she had spent $60,867 from the Trust since 2011, of which $20,000 went toward attorney's fees.
Husband testified he and Wife separated in February 2010 and although they both continued to reside in the family home, Wife was just "another being in the house." He stated they lived in separate bedrooms, cleaned their own spaces, cooked for themselves, bought their own groceries, did their own laundry, watched separate televisions in the house, and spent time with their daughter separately. According to Husband, he stopped depositing his paychecks into their joint checking account in February 2010. He deposited $800 per month in their joint account between February and October 2010 as a "monthly allowance" for Wife but stopped those contributions once he suspected Wife had taken a substantial sum from the Trust. Husband denied intending to transmute his separate property to Wife as her separate property, testifying he created the Trust solely to protect his Schedule A assets from identity theft during the course of litigation. He claimed he sought to undo the Trust in 2005 or 2006 but that Wife would not agree, claiming the assets were hers. Husband testified this was one of the reasons their marriage fell apart.
The court made its findings on the record. First, it determined that Husband did not transmute his Schedule A assets to Wife as her separate property in establishing the Trust. Finding the Trust documents ambiguous, the court explained it would not construe ambiguous documents to achieve a transmutation. Accordingly, the court awarded most of the Schedule A assets (including the family home) to Husband and ordered him to reimburse Wife for one-half the community property contribution toward certain assets.
Second, the court rejected Wife's argument that the couple had not yet separated at the time of trial, finding instead that they separated on February 1, 2010. It discounted Wife's pictures and testimony of a few shared meals as "very thin" evidence they had not separated, particularly given Wife's 2011 request for exclusive possession of the home. It also noted the in-court representation by Wife's counsel in 2012 that Wife would be willing to stipulate to Husband's petition date as the date of separation. Thus, the court found a later separation date would be inconsistent with representations the court relied on in making prior support orders.
Third, the court terminated jurisdiction over spousal support, applying the presumption that in a short-term marriage, spousal support is limited to one-half the length of the marriage (§ 4320, subd. (l)). It noted the parties separated after six years of marriage, and Husband supported Wife for six years after their separation. During this time, the court found Wife had done "pretty much zero to become self-supporting." It rejected Wife's claim Husband had not paid sufficient support for half the length of the marriage, noting Wife had not been ordered to return the $60,000 she had withdrawn from the Trust. Finally, the court made rulings on child support based on Wife's imputed income and awarded Wife $5,000 in attorney's fees.
Section 4320 provides: "In ordering spousal support under this part, the court shall consider all of the following circumstances: [¶] (l) The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a 'reasonable period of time' for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court's discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties."
The court entered a judgment of dissolution on February 10, 2016. Husband later filed an ex parte request to appoint an elisor to transfer certain assets to his name. The court granted the request on April 5, 2016, appointing the clerk of the superior court as the elisor. On April 7, 2016, Wife filed a timely notice of appeal.
Wife's notice of appeal indicated an appeal from both the judgment of dissolution and postjudgment order appointing an elisor. However, her briefs do not include any arguments regarding the postjudgment order. Because contentions on appeal must be supported by citation to the record and legal authority (Cal. Rules of Court, rule 8.204(a)(1)), we assume Wife abandoned any appeal as to the postjudgment order. (See Marocco v. Ford Motor Co. (1970) 7 Cal.App.3d 84, 87, fn. 1; Williams v. Williams (1960) 178 Cal.App.2d 522, 527.)
DISCUSSION
Wife raises three arguments on appeal. First, she contends the trial court erred as a matter of law when it found Husband did not transmute his separate property interest in the Schedule A assets to Wife as her separate property in creating the Trust. Second, she challenges the sufficiency of evidence supporting the court's determination that the parties separated on February 1, 2010, arguing the evidence instead supported a finding that they had yet to separate by the time of trial in February 2016. Third, starting with the premise that the parties had yet to separate, Wife argues the marriage was of "long duration" (§ 4336, subd. (b)), such that the court abused its discretion in terminating jurisdiction over spousal support. We address these contentions in turn. 1. Transmutation
The trial court found Husband did not transmute his separate property interest in the Schedule A assets to Wife's separate property during the marriage. Wife challenges that ruling on appeal, arguing the language in Schedule A establishes Husband's express intent to change ownership to Wife's separate property. We independently review the written instruments to determine whether a transmutation occurred. (In re Marriage of Barneson (1999) 69 Cal.App.4th 583, 588; In re Marriage of Starkman (2005) 129 Cal.App.4th 659, 664 (Starkman).)
Married persons may agree to transmute the separate property of one spouse to the separate property of the other spouse or to community property during the marriage, with or without consideration. (§ 850, subds. (b)-(c).) However, to be valid, an agreement to change the character of marital property must be "made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected." (§ 852, subd. (a); In re Marriage of Benson (2005) 36 Cal.4th 1096, 1104 (Benson).) An "express declaration" for purposes of effecting a transmutation requires language expressly stating that the characterization or ownership of the property is being changed. (Estate of MacDonald (1990) 51 Cal.3d 262, 272 (MacDonald).) Thus, courts decline to find a valid transmutation absent a writing "in which the adversely affected spouse expresses a clear understanding that the document changes the character or ownership of specific property." (Benson, at p. 1107 [collecting cases].)
An express declaration does not require particular terms, such as "transmutation," "community property," or "separate property." (MacDonald, supra, 51 Cal.3d at p. 273.) For example, a transmutation could be established by a writing that states, " 'I give to the account holder any interest I have in the funds deposited in this account.' " (Ibid.) However, an express declaration must unambiguously indicate a change in the character or ownership of the property. (Starkman, supra, 129 Cal.App.4th at p. 664.) "Though no particular terminology is required [citation], the writing must reflect a transmutation on its face, and must eliminate the need to consider other evidence in divining this intent." (Benson, supra, 36 Cal.4th at p. 1106.) Extrinsic evidence is inadmissible to prove a transmutation. (Ibid.; MacDonald, at pp. 264, 272-273.)
Wife contends Schedule A establishes Husband's express intent to change ownership of his separate property interest in the Schedule A assets. Schedule A states:
"We, [Wife], Settlor of the [Trust], and [Husband], Husband of the Settlor, hereby grant, convey, transfer and assign to [Wife], Trustee of [the Trust], as her sole and separate property, the following described property:
"[List of Husband's separate property assets, Nos. 1-14 omitted.]
"The above stated property shall be transmuted from community property to the sole and separate property of the Settlor, [Wife].
"Dated: June 30, 2004
"[Wife's signature]
"I hereby consent to the transmutation of any community property interest I may have in the above-referenced property to the sole and separate property of [Wife].
"[Husband's signature]"
The same day the parties signed the Trust documents, Wife signed a document titled, "Transmutation and Conveyance of Separate Property," that states:
"I, [Wife], Settlor and Trustee of the [Trust], hereby grant, transfer, convey and assign any and all assets previously transferred to the [Trust] to [Wife] and [Husband], as community property. It is my intention that the separate property interest of the assets previously conveyed to my trust be transmuted from my sole and separate property to our community property.
"Dated: June 30, 2004
"[Wife's signature]"
These documents do not unambiguously transmute Husband's separate property interest in the Schedule A assets. There is some confusing language at the beginning of Schedule A that could be read to grant Husband's separate property to Wife as her separate property, yet the very next paragraph characterizes the property being transferred as Husband's "community property." The agreement then expressly transmutes "any community property interest" Husband "may have" in the Schedule A assets to Wife as her separate property. That plain language does not unmistakably change the character or ownership of Husband's separate property interest in the Schedule A assets. Moreover, the transmutation of Husband's community property interest in the Schedule A assets was promptly undone when Wife signed the "Transmutation and Conveyance of Separate Property" document the same day, transmuting her separate property interest in the Schedule A assets back to community property. Thus, based on the written instruments, we cannot conclude Husband expressed a clear understanding to change the character or ownership of the Schedule A assets. This ends our inquiry. (Benson, supra, 36 Cal.4th at p. 1106 ["the writing must reflect a transmutation on its face"].)
Wife misconstrues the "Transmutation and Conveyance of Separate Property" document, claiming it "clearly shows that [Husband] knew that his alleged separate property was conveyed to the Schedule 'A' of the trust as [Wife's] separate property." By its plain language, the document transmutes Wife's separate property interest in the Schedule A assets (i.e., any community property interest Husband "may have" in those assets) back to community property. In any event, Husband did not sign this document, and it cannot be construed as an "express declaration" to prove his transmutation. (§ 852, subd. (a).)
We do not consider Husband's testimony that he never intended to transmute his separate property in signing Schedule A or Wife's suggestion that Husband had several weeks to review the Trust documents before signing. Such evidence is inadmissible extrinsic evidence. (MacDonald, supra, 51 Cal.3d at pp. 264, 272-273; Benson, supra, 36 Cal.4th at p. 1106; Starkman, supra, 129 Cal.App.4th at p. 665.)
We find support in two cases involving trust agreements. In Starkman, supra, 129 Cal.App.4th 659, the court ruled a husband did not transmute the entirety of his separate estate to community property when he placed his assets into a revocable trust as part of a joint estate plan. Language in the trust agreement that the trust assets were community property unless identified as separate property did not unambiguously establish his intent to effect a change of ownership when he placed his separate property assets in the trust. (Id. at pp. 662, 664-665.) By contrast, in In re Marriage of Holtemann (2008) 166 Cal.App.4th 1166, the court concluded a husband transmuted his assets from separate to community property by signing a "Transmutation Agreement" that stated, " 'Husband agrees that the character of the property described in Exhibit A . . . is hereby transmuted from his separate property to the community property of both parties.' " (Id. at p. 1172.) Exhibit A, in turn, listed " 'Husband's Separate Property Being Transmuted to Community Property." (Ibid.)
Here, as in Starkman and unlike in Holtemann, Schedule A did not unambiguously express Husband's "clear understanding that the document changes the character of ownership" of the Schedule A assets. (Benson, supra, 36 Cal.4th at p. 1107.) Schedule A does not meet the requirements of section 852, subdivision (a), and Husband did not, as a matter of law, transmute his separate property interest in the Schedule A assets to Wife's separate property. 2. Date of Separation
The trial court found the parties separated on February 1, 2010. Wife challenges this finding on appeal, arguing that both parties continued to reside in the family home and function as a married couple until four months after trial. The date of separation is a factual question generally reviewed for substantial evidence on appeal. (In re Marriage of Manfer (2006) 144 Cal.App.4th 925, 930; Davis, supra, 61 Cal.4th at p. 851.)
Husband testified that after February 1, 2010, he and Wife began separating their finances, lived in separate bedrooms, cleaned their own spaces, cooked for themselves, bought their own groceries, did their own laundry, watched separate televisions in the house, and spent time with their daughter separately. The court discounted Wife's pictures and testimony of a few shared meals as "very thin" evidence they had not separated, particularly in light of Wife's 2011 request for exclusive possession of the home. Ordinarily, this would end our inquiry; sufficient, albeit conflicting, evidence supports the trial court's finding the parties separated on February 1, 2010. Two changes in the law, however, impact our analysis.
The court also pointed to prior in-court representations by Wife's counsel that Wife would be willing to stipulate to the February 2011 petition date as the date of separation, concluding a later separation date would be inconsistent with representations the court relied on to make prior support orders.
At the time of trial, the Family Code did not define a standard or set of factors to consider in determining the date of separation. (In re Marriage of Manfer, supra, 144 Cal.App.4th at p. 929.) The operative version of section 771, subdivision (a) provided, "The earnings and accumulations of a spouse . . . , while living separate and apart from the other spouse, are the separate property of the spouse." (Italics added.) Six months before trial in this case, the California Supreme Court considered whether a couple could be "living separate and apart from the other spouse" within the meaning of former section 771 while both physically resided in the same home. (Davis, supra, 61 Cal.4th at p. 849.) Holding they generally could not, Davis opted for a bright-line rule that "living in separate residences 'is an indispensable threshold requirement' [citation] for a finding that spouses are 'living separate and apart' for purposes of section 771(a)." (Id. at p. 865.)
Davis left the door open as to "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." (Davis, supra, 61 Cal.4th at p. 864, fn. 7.) In a concurring opinion, Justice Liu expanded on that limited exception, explaining, "In order to qualify as 'living separate and apart,' the spouses must have a living arrangement that clearly and objectively signals a complete and final termination of the marital relationship. Neither the Legislature nor this court has foreclosed the possibility that such a living arrangement may occur within a single dwelling." (Id. at p. 870 (conc. opn. of Liu, J.).)
For reasons that are not apparent, neither party discusses the effect of Davis in their appellate briefs, and the extent to which the Supreme Court's decision was considered by the trial court is unclear. At the time of trial and the entry of judgment, Davis would have required the court to find either that the parties had not separated or that they fell within a narrow exception that would permit spouses to establish separate residences within the family home with the requisite objectively evidenced intent to end the marital relationship. (Davis, supra, 61 Cal.4th at pp. 864, fn. 7, 865.) The trial court did not expressly acknowledge Davis or address the possible exception left open by Davis's footnote 7.
Wife cites several cases on which Davis relied, including In re Marriage of Norviel (2002) 102 Cal.App.4th 1152. (Davis, supra, 61 Cal.4th at pp. 862-863, 865.) She takes the same position the Supreme Court ultimately credited in Davis, that "living separate and apart" under section 771, subdivision (a) requires physical separation. Davis is cited and discussed briefly in her trial court papers; Husband's trial court brief is not included in the record on appeal. --------
The Legislature moved quickly to abrogate Davis. In July 2016, four months after the entry of judgment in this case, the Legislature amended the Family Code to define "date of separation" and eliminate the "living separate and apart" language in section 771. (Sen. Bill No. 1255 (2015-2016 Reg. Sess.) §§ 1, 2.) In passing Senate Bill No. 1255, the Legislature sought to change the law back to what it was before Davis. (See Assem. Com. on Judiciary, com. on Sen. Bill No. 1255 (2015-2016 Reg. Sess.) as amended Jun. 1, 2016, p. 5.) Following the 2016 amendments, the "[d]ate of separation" is defined as "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).) The court must consider all relevant evidence in determining the date of separation. (§ 70, subd. (b).) As amended, section 771, subdivision (a) now provides, "The earnings and accumulations of a spouse . . . , after the date of separation of the spouses, are the separate property of the spouse." (Italics added.)
The 2016 amendments went into effect on January 1, 2017. (Gov. Code, § 9600, subd. (a).) The trial court entered judgment in this case on February 10, 2016, before the operative date of the amendments and while Davis remained in effect. Our review of the trial court's finding regarding the date of separation would be governed by Davis. (§ 4, subd. (e) ["If an order is made before the operative date, . . . the validity of the order . . . is governed by the old law and not by the new law."].) However, if we remand proceedings to the trial court, the trial court may decide it is appropriate to apply the 2016 amendments retroactively to determine the parties' separation date. (§ 4, subds. (c) [Family Code amendments apply "on the operative date to all matters governed by the new law, regardless of whether an event occurred or circumstance existed before, on, or after the operative date, including, but not limited to, commencement of a proceeding, making of an order, or taking of an action"] & (h) [court may apply either the new law or the old law to pending proceedings to avoid substantial interference with the effective conduct of proceedings].)
Because the Family Code permits "proceedings after the operative date [of an amendment] to modify an order made . . . before the operative date" (§ 4, subd. (e)), we believe the most efficient course is to return the matter to the trial court to determine whether the February 1, 2010 separation date remains effective. In making this determination, the trial court should consider: (1) whether a narrow exception suggested by Davis should apply—that is, whether Husband and Wife established separate residences within the family home with the requisite objectively evidenced intent to end the marital relationship (Davis, supra, 61 Cal.4th at p. 864, fn. 7); and/or (2) if newly enacted section 771, subdivision (a), and section 70 should apply retroactively (§ 4, subds. (c), (e), (h)). 3. Continuing Jurisdiction Over Spousal Support
Starting from the premise that the parties had yet to separate by the February 2016 trial, Wife argues she and Husband had a "long-term" marriage and the trial court abused its discretion in terminating jurisdiction over spousal support. A trial court abuses its discretion in entering an order on spousal support "when, after calm and careful reflection upon the entire matter, it can fairly be said that no judge would reasonably make the same order under the same circumstances." (In re Marriage of Sinks (1988) 204 Cal.App.3d 586, 591.)
As previously discussed, we return the matter to the trial court to determine whether the February 1, 2010 separation date remains effective. If the court reaches the same determination on remand, it would appear to be well within its discretion to terminate jurisdiction over spousal support. (§§ 4336, subds. (a)-(b); 4320, subd. (l).) "Spousal support is not mandatory in every case. The facts and equities in a particular case may call for no spousal support or very short-term support." (In re Marriage of Schu (2016) 6 Cal.App.5th 470, 474.) "A trial court acts within its discretion in denying spousal support where the supported spouse has failed to diligently seek employment sufficient to become self-supporting." (In re Marriage of Shaughnessy (2006) 139 Cal.App.4th 1225, 1238.)
DISPOSITION
The judgment dated February 10, 2016, is reversed insofar as it determines the parties separated on February 1, 2010, and on this basis terminates jurisdiction over spousal support. On remand, the trial court shall determine whether the February 1, 2010 separation date remains effective, considering: (1) whether a narrow exception suggested by Davis should apply—that is, whether Husband and Wife established separate residences within the family home with the requisite objectively evidenced intent to end the marital relationship (Davis, supra, 61 Cal.4th at p. 864, fn. 7); and/or (2) if newly enacted Family Code section 771, subdivision (a), and section 70 should apply retroactively (Fam. Code, § 4, subds. (c), (e), (h)). Based on the finding regarding the parties' date of separation, the trial court shall consider whether to terminate or retain jurisdiction over spousal support (Fam. Code, §§ 4336, 4320, subd. (l)).
In all other respects, the judgment is affirmed. The parties shall bear their own costs on appeal.
/s/_________
DATO, J. WE CONCUR: /s/_________
McCONNELL, P. J. /s/_________
BENKE, J.