In Re Marriage of Baragry

Opinion

FLEMING, J.

Wife appeals that part of the interlocutory judgment of dissolution which fixes the date of the parties’ separation as 4 August 1971, the date husband moved out of the family home. She contends the

[447]

date should be 14 October 1975, the date husband filed his petition for dissolution, and, alternatively, that husband is estopped to contend the separation took place before 14 October 1975.

The facts are undisputed, and the issue is the legal conclusion that should flow from the facts. The parties were married in September 1956, and have two daughters, now 13 and 10. Husband is an eye physician and surgeon. After a quarrel with wife, husband moved out of the family residence on 4 August 1971 and stayed for a time on his boat. Thereafter he took an apartment, into which his 28-year-old girlfriend and employee, Karen Lucien, moved and in which both now live. Although not sleeping in the family residence, husband maintained continuous and frequent contacts with his family. He ate dinner at home with wife almost every night in 1971 and 1972 and thereafter ate at home at least three to five times a week. He maintained his mailing address at the home. In 1971 and 1972, he took wife and daughters to Yosemite and San Francisco. On Christmas Eve, 1971, he slept at home. Throughout 1972 and 1973, he took his family to all UCSB basketball games. In 1973, he went with his wife to Sun Valley for a week without the children. He frequently took wife to social occasions — parties at friends’ homes, dinners for professional and academic groups, outings with other doctors and their wives. He sent wife numerous Christmas, birthday, and anniversary cards throughout the years 1971 to 1975, including a card stating, “I love you” in 1973, and an anniversary card with a huge box of flowers in September 1975. In 1974 he filed an enrollment card at their daughter’s private school stating that she lived at home with both parents. The parties continued to file joint income tax returns, and husband maintained his voting registration at the home address. He paid all the household bills and supported his family. He regularly brought his laundry home to wife, who washed and ironed it twice a month.

The parties had no sexual relations after 4 August 1971. Wife knew husband was living with Karen but wife desired a reconciliation, and continued to hope husband would return. Husband did not tell her he was never coming back. Husband testified he took wife on outings in order to preserve social appearances and to keep in touch with his children, who otherwise would not come to see him. He delayed filing for divorce because his “solid mid-Westem upbringing” made him reluctant to file for divorce. Both parties agree that their relationship was entirely amicable but nonsexual after August 1971 and that they maintained the habits and appearance of a married couple except that