BAMATTRE-MANOUKIAN, Acting P. J., Dissenting. The majority concludes that “the trial court incorrectly applied the law in this case” (maj. opn., ante, at p. 1155) and that “there is no support in the record for the trial court’s finding that the parties separated on June 28, 1998.” (Maj. opn., ante, at p. 1164.) In reaching this conclusion, the majority formulates a new standard. Although acknowledging, at least in concept, that spouses can be “living separate and apart,” within the meaning of Family Code section 771, subdivision (a), while occupying the same residence, the majority finds that in such a case the evidence must show “unambiguous, objectively ascertainable conduct amounting to a physical separation under the same roof.” The majority finds that the parties’ conduct here did not meet this standard and that the trial court therefore erred in selecting a date of separation prior to the time that husband physically moved out of the family home.
I respectfully disagree. I believe that this court must defer to the trial court’s determination of the date of separation if the trial court’s findings are supported by substantial evidence. (In re Marriage of Marsden (1982) 130 Cal.App.3d 426, 435 [181 Cal.Rptr. 910].) This deferential review is particularly appropriate in family law matters where the testimony of the parties often is, as in this case, in conflict, and where the trial court is called upon to make credibility judgments. My review of the record indicates that the evidence, including reasonable inferences to be drawn therefrom, supports the trial court’s finding that the date of separation was June 28, 1998. I would therefore affirm the decision of the trial court.
As the majority observes, “the Legislature has neither defined ‘date of separation’ nor specified a standard for determining it.” (In re Marriage of [1166]Hardin (1995) 38 Cal.App.4th 448, 450-451 [45 Cal.Rptr.2d 308].) Courts have generally agreed that spouses are “living separate and apart” within the meaning of the statute on the date they come to a “ ‘parting of the ways with no present intention of resuming the marital relations.’ ” (Id. at p. 451, italics omitted.) There are no particular facts that are “per se determinative” as to when this occurs. (Id. at p. 452.) However, as the majority points out, case law has established that two factors must be present to support a finding of legal separation: there must be a subjective intent on the part of at least one of the spouses to end the marriage and there must be objective conduct furthering that intent and indicating a “complete and final break in the marital relationship.” (Ibid.; In re Marriage of von der Nuell (1994) 23 Cal.App.4th 730, 735 [28 Cal.Rptr.2d 447].) The majority finds the first factor was “amply supported” by husband’s testimony that he clearly communicated his intent to end the marriage to his wife on June 28, 1998. However, the majority concludes that the second factor was not shown, both because of the timing of the conduct implementing the decision to end the marriage and also because the conduct was not “unambiguous, objectively ascertainable conduct amounting to a physical separation.”
The majority concludes that the intent to end the marriage and the conduct furthering that intent must be present “simultaneously” and that “[l]ater conduct that is merely consistent with an earlier decision to separate does not support an earlier separation date.” (Maj. opn., ante, at p. 1160.) I do not believe this is a workable rule in the realm of family law. Parties who have reached a decision as difficult and emotional as ending a lengthy marriage may often be unable to simultaneously engage in such clear-headed conduct as changing legal title on properties, closing bank accounts, dividing funds and establishing new bank accounts, discontinuing and applying for new credit cards, and arranging for new housing. It may be that one spouse has not worked during the marriage or that there is a great disparity in income to be taken into account. There may be efforts to maintain some continuity for the children, and to resolve issues involving shared custody. Surely the parties should be allowed a transition period to take the necessary steps to untangle the financial, legal and social ties incident to their decision to change their marital status.
Cases cited in the briefs where courts have refused to find that the parties have separated generally have involved spouses who, though they may be living separately, continue to maintain ongoing financial, social, and sometimes sexual, relations for months or even years. In those cases neither party has clearly communicated an intent to completely end the marriage and courts have found that their conduct was inconsistent with such an intent. (See, e.g., In re Marriage of Hardin, supra, 38 Cal.App.4th 448; In re [1167]Marriage of Baragry (1977) 73 Cal.App.3d 444 [140 Cal.Rptr. 779]; In re Marriage of von der Nuell, supra, 23 Cal.App.4th 730.)
Here, on the other hand, the parties had been living basically as “roommates” for a number of years when husband communicated his intent on June 28, 1998, to end the marriage. They had few, if any, common interests and spent time together infrequently, with the exception of Sunday night dinners. After June 28, 1998, they stopped even these dinners. On the night of June 28, 1998, after informing his wife of his decision, husband also communicated to their 13-year-old son that the couple planned to divorce. In addition husband told his wife that night that he intended to move into the rental property they were in the process of purchasing.
Conduct consistent with this expressed intent, and directed to effectuate a physical separation and eventual divorce, occurred thereafter over a relatively short amount of time. As husband testified, “that was the plan and that was what we did.” Husband explained that he could not move out immediately because the rental house was not ready. The escrow closed in mid-July, following which husband carried out substantial repairs and refurbishment to the property, purchased necessary furnishings and appliances, and took other steps to prepare the property for occupancy. Once repairs were complete, he moved into the new residence on August 15, 1998. Wife went through the family home, put labels on the furniture that husband would be taking to his new residence, and helped husband pack. Husband informed colleagues at work, including his supervisor and the vice-president of human resources, that he and his wife were getting a divorce, and he shared the decision with another close friend. Husband heard from a close friend of wife’s, who asked if there was anything to be done to save the marriage. The parties sat down together several weeks after the decision on June 28, 1998, to end the marriage and they made a list of their assets, worked out a tentative division of their property, including real estate, and developed a visitation plan for the children. All of this was eventually carried out in accordance with notes made during this discussion.
In sum I believe the trial court was entitled to determine whether this conduct occurred sufficiently close to the date of June 28, 1998, to demonstrate an intent to implement the decision on that date to end the marriage. In my view a rule that would require that conduct be absolutely “contemporaneous” with the expression of intent unduly restricts the trial court’s ability to weigh all of the evidence of the parties’ conduct.
I would also reject the imposition of a standard by which the trial court must find the parties’ conduct to be “unambiguous, objectively ascertainable [1168]conduct amounting to a physical separation . . . .” The court must be allowed to consider all conduct and other factors bearing on either party’s intentions to return or not to return to the marital relationship. “The ultimate test is the parties’ subjective intent and all evidence relating to it is to be objectively considered by the court.” (In re Marriage of Hardin, supra, 38 Cal.App.4th at p. 452.) The determination of intent is a question of fact addressed to the trial court and subject to proof by a preponderance of the evidence. (In re Marriage of Peters (1997) 52 Cal.App.4th 1487, 1494 [61 Cal.Rptr.2d 493].)
There may well be conduct by the parties during a time of emotional upheaval and change that cannot be characterized as unambiguous. For example here, following the June 28, 1998 date, the family went on a preplanned trip to Canada together. Husband asked wife if she would like to. meet him in London. Husband sent wife flowers and a note on their anniversary. The family celebrated a birthday together. The parties made gifts of stock to wife’s relatives. The inference could be drawn that such conduct reflected husband’s wavering intent or change of heart about ending the marriage. On the other hand, this conduct could mean what husband contended it did: that he did not want to disappoint the children by canceling vacation plans, that he wanted to show respect for his wife’s feelings, and that he wanted to keep family relations on amicable terms and “keep the kids on an even keel.” These questions were for the trial court, having heard both parties’ testimony, to decide. Where the evidence is subject to different inferences, we must accept the inferences reasonably drawn by the trial court in support of the judgment. (Hotaling v. Hotaling (1924) 193 Cal. 368, 379 [224 P. 455, 56 A.L.R. 734].)
I believe the standards developed in the cases discussing the date of separation, within the meaning of Family Code section 771, provide sufficient guidance for trial courts. The court is entitled to consider and evaluate all of the evidence bearing on the relevant span of time in the parties’ relationship, and to draw reasonable inferences. As the court in In re Marriage of Hardin explained, the court is to examine “the parties’ words and actions during the disputed time in order to ascertain when during that period the rift in the parties’ relationship was final.” (In re Marriage of Hardin, supra, 38 Cal.App.4th at p. 453, fn. omitted.)
Here the court heard lengthy testimony by both parties, who had the opportunity to explain their conduct and underlying intent. The court also heard testimony from three other witnesses. The vice-president of human resources and administration at husband’s company testified that husband told her around July 4, 1998, that he and his wife were separating. Wife’s [1169]first attorney testified that wife opposed the divorce and believed reconciliation was possible, and that wife had suggested the date of August 15, 1998, when husband moved out, as the date of separation. Wife’s second attorney also testified. On behalf of wife, he had entered into a stipulation changing the date of separation to June 21, 1998. He testified that this occurred during settlement negotiations and was the result of a misunderstanding. In addition, the court received documentary evidence, including the notes from the parties’ meeting in which they discussed dividing assets, copies of records of bank account and charge card activities, an address change request, stock certificates, and escrow statements. The parties submitted written argument. The court then made detailed findings, and modified those findings in response to wife’s requests for clarification. The court’s statement of decision clearly shows that it considered and resolved the issues, in particular the questions of timing and the evidence of equivocal conduct.
The court found that on June 28, 1998, the parties “discussed separation and that this was the end of the marriage. . . . [Husband] was committed to the decision to end the marriage and clearly communicated this to [wife]. Ultimately, during this same conversation, they agreed that [husband] would move into the rental that was being purchased by the parties and [wife] would remain in the family residence. While the physical move of the [husband] did not occur right away, the parties’ conduct was consistent with the initial discussion on June 28, 1998 regarding separation, and, eventually, a dissolution.”
The court noted that the parties continued to use joint bank accounts after June 28, 1998, until shortly after September 15, 1998. The court found, however, that “this was how they had always handled their finances and they had not agreed to change that pattern. It is not unusual for parties in dissolution cases to continue to use joint accounts for many months after filing for dissolution and separating. This is not in and of itself determinative of the date of separation.” The court also found that conduct to carry out planned gifts of stock to relatives and to acquire real estate in joint tenancy was “not inconsistent with the earlier date of separation. The parties discussed and agreed that the [husband] would occupy the rental that they were acquiring. . . . Once the parties took title, certain repairs had to be done, so the [husband] could not move immediately. By the time he did move, the parties had discussed and agreed upon a partial division of their personal property.” Finally, the court resolved the parties’ conflicting testimony by finding that the wife “did not believe that [husband] would carry out his stated intention to end the marriage .... [She] simply could not recognize that it was over.”
The court concluded as follows: “Based upon all of the evidence before the Court, the Court finds that the date of separation of the parties was June [117028], 1998. The parties discussed separation and divorce and [husband] clearly communicated his intention to end the marriage. The parties never discussed reconciliation after that date. Their conduct, including the separation of their personal property, the move of the [husband] to the newly acquired jointly held rental property, and the ultimate filing of this action, are consistent with the earlier date of separation and the parties’ implementation of the separation process, [¶] Physical separation is not necessarily determinative of separation. Parties can, and often do, agree to terminate their marriages and commence a course of conduct to implement a physical separation. The parties in this case parted ways and their overall conduct demonstrated clearly that their marriage had completely broken down. The totality of conduct of the parties both on and after the date of the discussion of their separation adequately supports the date of separation of June 28, 1998.”
I acknowledge that this is a close case, but I would conclude that the trial court carefully considered all of the evidence, correctly applied the law and reached a result that is supported by the record. As the majority acknowledges, we exceed our role as a court of review if we reweigh the evidence. Applying the substantial evidence test, I would therefore affirm the trial court’s determination that the date of separation was June 28, 1998.