Marriage of Niedermann

Filed 8/30/07 Marriage of Niedermann CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Louise Halevy, Commissioner. Affirmed.

Lascher & Lascher and Aris E. Karakalos for Appellant.

Law Offices of J. Marie Gray and J. Marie Gray for Respondent.

In this marital dissolution action, plaintiff and appellant Philip Niedermann (husband) appeals from the trial courts determination that husband separated from defendant and respondent Donna Niedermann (wife) on January 8, 2004. Husband contends the date of separation was much earlier on November 29, 1993, and that the trial courts finding is legally and factually unsupported. Husband further contends the trial court committed reversible error by failing to issue a timely statement of decision after husband requested one. We affirm the judgment.

BACKGROUND

Husband and wife were married on September 20, 1986. The couple had one son, born in January 1988. Wife became chronically ill in June 1993. The couples relationship became strained, and the two stopped living together on November 30, 1993. Husband and wife attended one marriage counseling session after they stopped living together.

After husband moved out of the couples home, he continued to provide health insurance for wife through his employer. Husband and wife also continued to file joint tax returns. Husband provided wife with financial support from 1993 to 2004, in the form of monthly payments ranging from $400 to $600. In June 1995, wife lost her job with the City of Hope, where she had worked as a nurse for nearly 10 years, and she liquidated her pension savings in order to meet her living expenses. To ease wifes financial difficulties after losing her job, and to ensure that wife and son were not evicted from their home, husband made several rent payments on her behalf.

Notwithstanding husbands financial support, wife continued to experience financial difficulties, and she filed for bankruptcy in 1996. Some time after 1996, wife applied for and received food stamps. As the result of wifes application, the district attorneys office served husband with a wage assignment order for unpaid child support. The wage assignment order was ultimately resolved, and wife did not seek to recover from husband any allegedly unpaid child support.

In 1996, wife was diagnosed as being bipolar, and her behavior was at times erratic. Wife continued to care for the couples minor son, who was also diagnosed as being bipolar. The son lived with wife until 2003, when he went to live with husband. While their son lived with wife, husband telephoned on a daily basis, and wife would sometimes telephone husband. Husband would also visit his son at Christmas and on other holidays and would share an occasional meal with wife and his son. Husband and wife attended their sons school meetings together, and husband would occasionally pick up wife in his car and the two would drive together to the school.

In 2001, husband made a $10,000 down payment on a mobile home for wife and their son to live in. Although title to the home was in husbands name alone, both husband and wife signed the residency application for the mobile home park in which the home was located, as well as the mobile home park lease itself. In both the application and the lease, husband and wife represented that they were a married couple, and that they would be living in the home together. Although husband did not live in the mobile home, he paid the monthly mortgage payments, as well as the property taxes and homeowners insurance premiums. Husband continued to make the monthly mortgage payments on the mobile home after son moved out of that home and went to live with husband.

In 2004, husband told wife for the first time that he intended to file for divorce. On June 2, 2005, husband filed a petition for dissolution of marriage, listing the date of separation as November 29, 1993. In support of the petition, husband submitted his own declaration, the declarations of the couples son, the declaration of two of husbands sisters, and the declaration of husbands brother-in-law, attesting to wifes sometimes aberrant behavior, husbands efforts to minimize his contacts with her after physically separating from her, and his intent to end the marriage in 1993.

The matter was heard by the trial court on March 1, April 13, April 21, and May 11, 2006. Husband, wife, two of husbands sisters, and husbands brother-in-law testified. Husband testified that both parties viewed the marriage as over in 1993 when he moved out of the couples home; that shortly after moving out, he paid a $2,000 retainer to a divorce attorney but subsequently abandoned the idea of divorcing wife when he learned that divorce proceedings would cost him an additional $20,000 in attorney fees; and that he never expressed to wife a desire to reconcile with her. Wife testified that husbands behavior, including his daily telephone communications, frequent visits, and financial and emotional support, led her to believe that they could be reconciled one day; that she had always hoped to be reconciled with husband; and that husband did not tell her he wanted to end the marriage and proceed with a divorce until 2004. Wife further testified that husband agreed to give her the mobile home he had purchased in 2001 in exchange for wife agreeing to forgo $15,000 in unpaid child support.

The trial court took the matter under submission, and on August 9, 2006, issued a seven-page memorandum of tentative decision in which the court found the couples date of separation to be January 8, 2004, the date husband first clearly articulated to wife his intention to file for divorce. The trial court found the marriage to be a long-term marriage within the meaning of Family Code section 4336 and ordered husband to pay wife $700 in monthly spousal support until the death of either party, wifes remarriage, or further court order. The trial court further ordered husband to pay wifes attorney fees in the amount of $5,500. The court found the mobile home, husbands pension benefits, and wifes pension benefits to be community assets.

On August 22, 2006, husband filed a request for a statement of decision. The record on appeal contains a conformed copy of that request. The cover sheet of the conformed copy contains a handwritten interlineation through the typed superior court case number (a number that is different than the superior court case number for the instant case), and, in handwriting above that number, the correct superior court case number for this case. Husbands request for a statement of decision presented 81 questions for the trial court to answer concerning the bases for its decision. The trial court did not issue a formal statement of decision before entering judgment on October 24, 2006. On April 16, 2007, the trial court issued a minute order stating that husbands request for statement of decision was not in the court file at the time the judgment was completed, and that the tentative decision of August 9, 2006, was adopted as the statement of decision. Husband filed this appeal.

DISCUSSION

A. Statement of Decision

Husband argues that the trial court failed to issue a statement of decision after he filed a request for one on August 22, 2006, and that the trial courts tentative decision failed to address material issues on which husband specifically requested a finding.[1] We review husbands claims under an abuse of discretion standard. (Hernandez v. City of Encinitas (1994) 28 Cal.App.4th 1048, 1077-1079.)

Pursuant to a stipulation by the parties, a hearing took place on April 16, 2007, at which time the trial court found that husbands request for a statement of decision was not in the court file at the time the judgment was entered. At that same hearing, the trial court adopted the tentative decision filed on August 9, 2006, as the formal statement of decision. A formal statement of decision was thus issued in response to husbands request for one.

Husband contends the tentative decision adopted by the trial court as the formal statement of decision failed to address many material issues. Of the 81 questions propounded in his request for a statement of decision, however, husband identifies only three whether wifes testimony was credible because of inconsistencies in her testimony; whether husbands payment of a $2,000 retainer to a divorce attorney soon after moving out of the couples home in 1993 evidenced his intent to end the marriage at that time; and whether husbands and wifes separation of their assets and debts after 1993 evidenced their mutual intent to end their marriage.

A trial court need not discuss each question listed in a partys request for a statement of decision, but need only explain the factual and legal basis for the courts decision. (Hellman v. La Cumbre Golf & Country Club (1992) 6 Cal.App.4th 1224, 1230.) The statement of decision does address wifes credibility. It states that wifes recollection seem to alternate between great clarity and moments of cloudy confusion. It also discusses wifes 1996 bankruptcy filing, in which she apparently listed various community debts as solely her own, but notes that this error may have been due to wifes mental health condition and lack of legal sophistication. Finally, the statement of decision notes that the trial court discounted some of wifes testimony, stating that the trial court does not accept as true wifes contention that she forewent enforcement of a wage assignment order for unpaid child support in exchange for husbands gifting her the mobile home he purchased in 2001. The trial court nevertheless found wifes testimony concerning her daily interactions with husband to be credible, and her belief that she might one day be reconciled with him to be sincere.

The trial court also found husbands conduct to be inconsistent with an intent to end the marriage in 1993. As noted by the trial court, separation of the marital relationship requires two elements subjective intent to end the marriage, and objective evidence of conduct furthering that intent. (In re Marriage of Norviel (2002) 102 Cal.App.4th 1152, 1158.) In its statement of decision, the trial court cites numerous examples of conduct evidencing an intent to continue, rather than end, the marital relationship, including husbands attending, together with wife, counseling sessions for their son; the couples daily telephone contacts; their continued filing of joint tax returns; husbands purchase of a mobile home trailer for wife to live in; and the couples representation to the mobile home park owner that the two were married. The statement of decision thus adequately explains the legal and factual bases for the trial courts ruling. (Hellman v. La Cumbre Golf & Country Club, supra, 6 Cal.App.4th at p. 1230.)

B. Date of Separation

1. Standard of Review and Applicable Legal Standards

Husband contends the trial court misapplied the governing law concerning the date of separation, and that the trial courts determination that the parties did not separate until January 2004 is therefore legally unsupported. The date of separation is a factual issue to be determined by the trial court by a preponderance of the evidence. (In re Marriage of Manfer (2006) 144 Cal.App.4th 925, 930.) An appellate court reviews the trial courts determination of such factual issues for substantial evidence. (Ibid.) Questions of law, such as trial courts application of the governing law, are reviewed independently. (In re Marriage of Norviel, supra, 102 Cal.App.4th at p. 1158.)

The date of separation is significant because it dictates the character of the property acquired by either party thereafter. Under Family Code section 771, a spouses earnings and accumulations . . . while living separate and apart from the other spouse are separate property. (Fam. Code, 771; In re Marriage of Norviel, supra, 102 Cal.App.4th at p. 1158.) The statute does not define date of separation or specify a rule for determining it, and there is no definitive authority setting forth a single standard to be employed or a comprehensive list of factors to be considered; however, a number of courts have attempted to enunciate guidelines. (See, e.g., In re Marriage of Manfer, supra, 144 Cal.App.4th at p. 929.) The clearest articulation of a standard is as follows: [T]he date of separation occurs when either of the parties does not intend to resume the marriage and his or her actions bespeak the finality of the marriage relationship. . . . [] . . . [] All factors bearing on either partys intentions to return or not to return to the other spouse are considered. [Citation.] No particular facts are per se determinative. 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 (1995) 38 Cal.App.4th 448, 451- 452 (Hardin).) Stated differently, The ultimate question to be decided in determining the date of separation is whether either or both of the parties perceived the rift in their relationship as final. The best evidence of this is their words and actions. (In re Marriage of Manfer (2006) 144 Cal.App.4th 925, 930, quoting Hardin, supra, 38 Cal.App.4th at p. 453.)

2. Evidence Concerning Date of Separation

Husband and wife physically separated in 1993, and husband began living in a separate residence. At that time, husband told his relatives that the marriage was over. The evidence is disputed as to whether husband communicated to wife his intent to end their marriage in 1993. Husband maintains that he did, and that wifes assertion to the contrary is not credible. It is the exclusive province of the trier of fact to determine the credibility of a witness, however (Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968), and substantial evidence supports the trial courts determination that husband did not communicate to wife his intent to end the marriage until January 2004. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.)

After physically separating from wife, husband spoke with her by telephone on a daily basis. Although he maintains that the daily interaction was necessary in order to have access to his son, some of the telephone calls were initiated by wife, who testified that she spoke frequently with husband to discuss their mutual problems and for emotional support. Husband was a frequent visitor in wifes home in order to pick up his son, and he often went inside and spent some time talking with wife while waiting for his son to gather his belongings. He spent holidays with wife and his son and shared an occasional meal with them. Although husband claims that he tolerated these visits for the sake of his son, he also conceded that he sought to placate wife and to avoid confrontation with her.

Husband and wife maintained significant financial ties to one another after 1993. They continued to file joint tax returns. Husband continued to list wife as a beneficiary on the health insurance plan he obtained through his employer. In 2001, husband purchased a mobile home for wife and their son to live in. He and wife represented themselves as a married couple when they submitted a joint application for residence in a mobile home park. Husband paid the monthly mortgage payment on the mobile home, as well as the property taxes and insurance. Wife continued to live in the mobile home, and husband continued to make the monthly mortgage payments, even after the couples son moved out of that home in 2003 and went to live with husband. Husband provided ongoing financial support for wife, paying her anywhere from $400 to $600 per month from 1993 until 2004. When wife lost her longtime nursing job in 1995 as the result of illness, husband paid her rent by writing checks directly to wifes landlord.

Substantial evidence thus supports the trial courts determination that the date of separation occurred in January 2004.

3. No Legal Error

The record discloses no legal error on the part of the trial court, and no misapplication of the governing law. As noted in its statement of decision, the trial court applied the proper legal standard, considering both husbands subjective intent and his conduct during the relevant time period: The key in making a determination of the parties separation date is not merely in looking at the subjective intent of either party, but finding that subjective intent by either spouse is accompanied by concurrent conduct that demonstrates that there has been a final breakdown of the marital relationship. It is error to focus exclusively on the wish to divorce unless the accompanying behavior evidences that wish. As discussed, the trial court cited numerous examples of husbands conduct evidencing an intent to continue, rather than end, the marital relationship after 1993.

Husband contends that he and wife disentangled their lives in all respects after 1993; however, they remained financially intertwined with one another to a significant degree, filing joint tax returns, sharing health insurance coverage under the same plan, and sharing a mobile home purchased in husbands name, but in which wife resided. Although husband argues that the trial court improperly focused on wifes subjective intent, or on husbands desire to shield his son from difficult divorce proceedings, rather than on husbands intent to end the marriage, the statement of decision shows that the trial court found husbands conduct, together with the parties ongoing financial ties, to be determinative. The trial court did not err by concluding that husbands conduct was not consistent with an intent to end the marriage in 1993.

Husband argues that his physical separation from wife, his initial consultation with a divorce attorney, and his clearly voiced plan to divorce wife, as expressed to family members, evidenced a complete and final break in the marital relationship. The relevant inquiry, however, is not what society at large would have perceived, but what the parties subjective intent was, as objectively determined from all of the evidence reflecting the parties words and actions during the disputed time. [Citation.] (In re Marriage of Manfer, supra, 144 Cal.App.4th at p. 934, quoting Hardin, supra, 38 Cal.App.4that pp. 452-453.) There is adequate evidentiary support for the conclusion that husbands words and actions vis--vis wife did not evidence an intent to end the marriage before January 2004. The trial court committed no legal error.

DISPOSITION

The judgment is affirmed. Wife is awarded her costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________, J.

CHAVEZ

We concur:

____________________, P. J.

BOREN

____________________, J.

DOI TODD

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[1] In his reply brief, husband argued for the first time that the trial court lacked jurisdiction to adopt its tentative decision as the formal statement of decision because the filing of husbands notice of appeal had divested the court of such jurisdiction. Husband also argued for the first time in his reply brief that the trial courts adoption of its tentative decision as the formal statement of decision was untimely and that he was prejudiced by the trial courts delay. Husband waived the right to have these arguments considered on appeal by failing to raise them in his opening brief, (Elite Show Services, Inc. v. Staffpro, Inc. (2004) 119 Cal.App.4th 263, 270; Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 894), and we accordingly do not address them.