IN RE: the Marriage of Amina and Allen JASCHKE.

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Court of Appeal, Third District, California.

IN RE: the Marriage of Amina and Allen JASCHKE. Amina JASCHKE, Appellant, v. Allen JASCHKE, Respondent.

No. C020635.

Decided: March 08, 1996

Rich, Fuidge, Morris & Sanbrook, Inc. and David R. Lane, Marysville, for Appellant. Eisen & Johnston Law Corporation, Jay–Allen Eisen, and Marian M. Johnston, Sacramento, for Respondent.

Family Code section 771 (hereafter, “section 771”) makes the earnings and accumulations of spouses while they are living separate and apart separate property.   This is a case of first impression concerning whether a temporary separation of spouses invokes section 771.   Because, under precedent, a separation must be complete and final to invoke section 771, we hold the statute does not apply to temporary separations.   We reverse the trial court's judgment, which applied section 771 to a temporary separation.

FACTS AND PROCEDURE

While Husband and Wife were married on November 18, 1988, and judgment dissolving the marriage was entered on December 21, 1994, their marriage was subject to ambiguous fits and starts which were chronicled at trial and set the stage for this appeal.

On February 16, 1993, a rift developed in the marriage when Husband overheard a telephone conversation between Wife and a man whom the court characterized as “her lover.”   The next day, Husband moved to his parents' mobile home on the same property and filed a petition for dissolution of the marriage.   The court, in its ruling after the trial, found Husband intended at that time to terminate the marriage, even though Husband, soon thereafter, moved back into the marital residence, though in a separate bedroom, and gave Wife a gift of intimate apparel.

A default judgment dissolving the marriage was entered on May 17, 1993.   The parties, however, reconciled, and Wife moved to set aside the judgment on June 4, 1993.   The judgment was set aside and the action dismissed by stipulation of the parties on October 1, 1993.

On May 24, 1993, seven days after the default judgment was entered, Husband purchased a 40–acre walnut orchard.   He later received the proceeds of the walnut harvest.

On December 7, 1993, Wife moved out of the house and, on December 15, 1993, filed a petition for dissolution.

From this evidence, the trial court concluded Husband and Wife were separated from February 17, 1993, to June 4, 1993, when they reconciled.   They were again separated on December 7, 1993.   The court determined earnings and accumulations during the period from February 17 to June 4 and after December 7, 1993 were the separate property of the spouses.   For example, the court characterized the walnut orchard, purchased during the temporary separation, as Husband's separate property.

The parties introduced considerable evidence concerning the condition of their marriage and their earnings and accumulations at various times.   The facts recited above, however, are sufficient in light of our legal conclusions.

DISCUSSION

Our first consideration is whether the trial court properly characterized the parties' earnings and accumulations during their temporary separation as separate property under section 771.   Because we conclude the court did not, we reverse and need not consider Wife's remaining contentions.

Section 771 provides:  “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 determination of when the couple is “living separate and apart” can be critical to determining their respective property rights.  (See In re Marriage of Hardin (1995) 38 Cal.App.4th 448, 451, 45 Cal.Rptr.2d 308.)

 As defined by the courts, “living separate and apart” means the couple has no present intention to resume the marital relationship and their conduct shows a complete and final break in the marital relationship.  (In re Marriage of Baragry (1977) 73 Cal.App.3d 444, 448, 140 Cal.Rptr. 779;  In re Marriage of Hardin, supra, 38 Cal.App.4th at pp. 452–453, 45 Cal.Rptr.2d 308, chronicling the emergence of this standard.)  “[B]ecause rifts between spouses may be followed by long periods of reconciliation, and the intentions of the parties may change from one day to the next, ․ legal separation 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.”  (In re Marriage of von der Nuell (1994) 23 Cal.App.4th 730, 736, 28 Cal.Rptr.2d 447, italics in original.)

 While the courts have applied this standard for determining the date of separation for the purpose of characterizing property under section 771 in many specific factual situations, there is no case applying the standards when a couple has successive separations.   The lack of precedent may well result from the clear inconsistency between finding a temporary separation for the purpose of property characterization when the cases require the separation to be complete and final.

Husband claims his filing for dissolution in February 1993, and obtaining a judgment in that action, along with the evidence of his moving out of the marital residence and then into a separate bedroom within the marital residence proves a complete and final break in the marital relationship.   On the contrary, the most it proves is a temporary, though serious, rift in the marital relationship.   Husband acknowledged as much when he stipulated to setting aside the judgment of dissolution.

Although no case has considered the effect of successive separations on property characterizations under section 771, a family law practice guide observes:  “Because conduct evidencing a complete and final break in the marriage is the critical earmark of the separation date, it is unlikely there will ever be a series of several separation dates for [section 771] property characterization purposes.   More likely, evidence of successive physical separations and reconciliations will be construed to mean the parties were vacillating in their intent to effect a ‘final’ break in the marriage;  and that conclusion will probably defeat [section 771] separate property characterization with regard to acquisitions during those time-frames.”  (Hogoboom & King, Cal.Practice Guide:  Family Law 1 (The Rutter Group 1995) § 8:114.1, p. 8–28, italics in original.)

 On its face, section 771 does not prohibit taking into account successive separations when characterizing property.   Indeed, the code offers no guidance in determining what is a separation.   However, section 771 was created in 1992, operative in 1994, in the same language as former Civil Code section 5118.   At the time of this statutory restatement, the courts had already construed the separation provision of former Civil Code section 5118 as requiring a complete and final break in the marital relationship.  (See, e.g., In re Marriage of Baragry, supra, 73 Cal.App.3d at p. 448, 140 Cal.Rptr. 779.)   We presume the Legislature is aware of and adopts the judicial interpretation of a statute when it restates or reenacts the statute without changing the effective language.  (People v. Superior Court (Lavi) (1993) 4 Cal.4th 1164, 1178, fn. 9, 17 Cal.Rptr.2d 815, 847 P.2d 1031.)

While there is sufficient evidence of Husband's intention to end the marriage when he moved out of the marital residence and filed a petition for dissolution in February 1993, the evidence does not support a finding of a complete and final break in the marital relationship at that time because the parties eventually reconciled before the final rift.   Accordingly, as a matter of law, the separation, for section 771 property characterization purposes, did not take place on the date found by the trial court.

This determination invalidates many of the trial court's property characterizations and requires a remand for further determinations concerning property characterization and equitable distribution.   Accordingly, we need not reach Wife's contentions as to the specific property.  (In re Marriage of Hardin, supra, 38 Cal.App.4th at p. 450, 45 Cal.Rptr.2d 308 (“[T]he date of separation is a critical fact affecting the parties' rights to property and income.”).)

While the parties contested in the trial court and in their appellate briefs spousal support and the distribution of Husband's public retirement benefits, they have informed us they have reached an agreement on those issues.   Accordingly, we do not discuss them.   However, on remand, the trial court must reconsider entitlement to attorney fees, an issue also raised on appeal, in light of the property characterizations necessitated by this opinion.

DISPOSITION

The judgment is reversed and remanded.   The parties shall bear their own costs on appeal.

NICHOLSON, Associate Justice.

PUGLIA, P.J., and BROWN, J., concur.