Marriage of Malcolm CA6

Filed 1/28/14 Marriage of Malcolm CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

In re Marriage of MICHAEL and DENISE H038379 MALCOLM. (Santa Clara County Super. Ct. No. 6-12-FL007717)

MICHAEL MALCOLM,

Appellant,

v.

DENISE MALCOLM,

Respondent.

In this family law matter, Michael Malcolm appeals from a trial court order staying his legal separation action on forum non conveniens grounds pending divorce proceedings filed by his wife, Denise Malcolm, in Colorado.1 We conclude that the trial court applied the wrong standard in granting the motion and remand the cause for application of the correct standard. I. FACTUAL BACKGROUND Prior to their marriage, both parties had extensive ties to California. Michael received a master’s degree and Ph.D. from Stanford University in 1973. He founded Network Appliance, Inc., (NetApp) in Mountain View in 1992. After leaving that

1 We will refer to the parties by their given names for purposes of clarity and not out of disrespect. (In re Marriage of Thorne & Raccina (2012) 203 Cal.App.4th 492, 495, fn. 1.)

company in 1995, he founded CacheFlow in Redmond, Washington. CacheFlow moved to Palo Alto in 1997. Michael remained with the company until it went public in 1999. Denise attended public school in Monterey, California. She earned an undergraduate degree from Stanford University and a law degree from the University of California at Berkeley. She was admitted to the California Bar in 1987. In 1999, the parties married in Carmel, California. During their marriage, the parties and their three children resided primarily in Aspen, Colorado. Between 2002 and 2011, the parties paid state income taxes only to Colorado, possessed Colorado driver’s licenses, and were registered to vote in Colorado. Their state income tax returns for this period declared that they were full-year residents of Colorado. Nevertheless, the parties maintained ties to California. They own two homes in Los Altos and 850 acres of land near Carmel. Michael, who has a pilot license, maintains an airplane hangar and apartment at the Monterey Airport where the parties’ four airplanes are housed. In 2001, Michael and Denise founded Kaleidescape, Inc., in Sunnyvale, California. Denise was the company’s general counsel, but worked primarily from Aspen. Michael typically worked out of the company’s Sunnyvale office during the week, staying at one of the Los Altos properties, and flying himself to Aspen each weekend. The parties separated in late 2011 or early 2012, and Michael moved out of the Aspen home and into one of the Los Altos homes. On a daily basis, Denise is responsible for raising the children, who go to school and participate in numerous extracurricular activities in Aspen. She represents that traveling to California to litigate this action would be extremely inconvenient and disruptive to her and the children. II. PROCEDURAL BACKGROUND Michael filed a petition for legal separation in Santa Clara County Superior Court on February 2, 2012. He served Denise on the same day in Aspen. Michael could not file for dissolution of marriage because he had not yet been domiciled in California for