Marriage of Lee and Lin

Filed 10/30/19 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

In re the Marriage of SHOU CHAN LEE H045428 and SHU YING LIN. (Santa Clara County Super. Ct. No. 6-14-FL-013138)

SHOU CHAN LEE,

Respondent,

v.

SHU YING LIN,

Appellant.

In this marital dissolution action, appellant challenges the trial court’s determination that the parties legally separated in May 2012 when respondent moved out of the family residence. Finding no error, we will affirm. I. BACKGROUND After 26 years of marriage, Shou Chan (Tony) Lee (Husband) moved out of the family residence in May 2012. He rented an apartment in a neighboring city, and occasionally interacted with Shu Ying (Sharon) Lin (Wife) with whom he maintained an amicable relationship. Husband filed a dissolution petition in August 2014. The parties litigated their date of separation. Husband maintained the date was in May 2012 when he left the family home, and Wife contended the legal separation occurred when Husband filed for dissolution 27 months later. After a two-day hearing in 2017 in which both parties testified, the court found that legal separation occurred when Husband moved from the family home in May 2012. Ruling from the bench and tracking

the language of Family Code section 70 defining “date of separation,” the court found “Husband’s intention to end the marriage occurred on May 21, 2012 and his actions since then have been consistent with that.” The court found Husband’s intent to end the marriage was clearly expressed by leasing an apartment, his intent was reinforced by relinquishing the key to the family home and refusing to give Wife a key to the apartment, and his post-move conduct was consistent with that intent. The court found the parties’ limited interactions after Husband’s move did not show an intent to reconcile and did not “overcome any clear act of ending the marriage by moving out.” The trial court memorialized its ruling about the date of separation in a written order. It certified the order for immediate review, and this court granted Wife’s motion to appeal the interlocutory decision. (Cal. Rules of Court, rule 5.392.) II. DISCUSSION 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 As originally enacted, section 771 provided that “[t]he earnings and accumulations of a spouse … , while living separate and apart from the other spouse, are the separate property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