Proof of separation by preponderance of evidence is appropriate since couple's economic interests are identical.
Cite as
1997 DJDAR 2192Published
Jul. 13, 1999Filing Date
Feb. 26, 1995Summary
The C.A. 3rd has ruled that a married couple had identical economic interests at risk in contesting their date of separation, warranting application of the preponderance of evidence standard to determine the issue.
Joy and Eric Peters sought to dissolve their marriage in superior court. The date of their separation was at issue in the dissolution proceedings, which the trial court established using the preponderance of the evidence standard. Joy appealed from the judgment, arguing that the law and public policy required a higher burden of proof to overcome the statutory presumption that property acquired during marriage is community property. Eric argued that Joy could not raise the issue for the first time on appeal and that an alternate standard of proof could not be established by the court without direction from the California Legislature.
The C.A. 3rd affirmed. Eric's contention that issues could not be raised for the first time on appeal was rejected. While that is usually the rule, an exception exists if the issue presents a pure question of law. Section 115 of the Evidence Code expressly contemplates exceptions to the preponderance standard developed by the common law. Determining the degree of proof to be applied is the kind of question traditionally left to the judiciary to resolve. The issue is not reserved for the legislature. The burden of proof to be applied serves to allocate the risk of error between the parties and varies according to the gravity of consequences that will result from an erroneous resolution. Facts are generally subject to a higher burden of proof where particularly important individual interest or rights are at stake. A clear and convincing standard is required only when the interests at stake are more substantial than the mere loss of money. Determining the date of marital separation affected only the classification of property. Both parties here had identical economic interests at risk in contesting the date of separation. Therefore, the preponderance standard was applied since it roughly distributed the risk of error equally between the parties.
— Brian Cardile
IN RE MARRIAGE OF JOY M. AND
ERIC W. PETERS.
JOY M. PETERS,
Appellant,
v.
ERIC W. PETERS,
Respondent.
3 Civil C022085
(Super.Ct.No. 50610)
California Court of Appeal
Third Appellate District
(Siskiyou)
Filed February 27, 1997
CERTIFIED FOR PARTIAL PUBLICATION 1
APPEAL from the judgment of the Superior Court of the County of Siskiyou, Judge Cris Stromsness. Affirmed.
Arnold David Breyer, Law Offices of Arnold David Breyer, E. Elizabeth Summers, Bien & Summers for Appellant.
Michael B. Dashjian and Deane Sellon for Respondent.
In this bifurcated marital dissolution proceeding, Joy M. Peters (Joy) 2 appeals from the judgment establishing the date of separation (Fam. Code, § 771 [undesignated section references will be to this code]) from Eric W. Peters (Eric). In the published part of the opinion we conclude the determination of a date of separation is proven by a preponderance of evidence rather than by clear and convincing evidence. In the nonpublished part of the opinion we find there is substantial evidence to support the trial court's selection of a separation date. We will summarize the evidence adduced at trial in the portion of the discussion analyzing its sufficiency, and affirm the judgment.
DISCUSSION I Joy argues that the law and "public policy" require a higher burden of proof than preponderance of the evidence to determine the date of separation pursuant to section 771. 3 Before we address the merits of the issue, we consider Eric's contention that Joy has waived appellate consideration of it because she failed to raise it initially in the trial court.
Issues usually cannot be raised for the first time on appeal. (In re Marriage of Hinds (1988) 205 Cal.App.3d 1398, 1403.) An exception is occasionally made where, as here, the issue presents a pure question of law. (Hale v. Morgan (1978) 22 Cal.3d 388, 394.) We will thus reach and reject the contention on the merits.
Evidence Code section 115 provides for three burdens of proof (defined as "the obligation of a party to establish by evidence a requisite degree of belief concerning a fact in the mind of the trier of fact"). "Except as otherwise provided by law," issues of fact are determined by a preponderance of the evidence. (Weiner v. Fleischman (1991) 54 Cal.3d 476, 483; Evid. Code, § 115.) A higher standard is "clear and convincing" proof, which has been held to require evidence "so clear as to leave no substantial doubt." (In re Jost (1953) 117 Cal.App.2d 379, 383.) The highest standard is proof beyond a reasonable doubt, applied to cases involving deprivation of important personal rights. (1 Witkin, Cal. Evidence (3d ed. 1986), Burden of Proof and Presumptions, § 162, pp. 139-140.)
Contrary to Eric's insistence that it is not for this court to establish an alternate standard of proof without direction from the legislature, Evidence Code section 115 expressly contemplates exceptions to the preponderance standard developed by the common law, because the determination of the degree of proof to be applied in a particular situation is the kind of question which has traditionally been left to the judiciary to resolve. (Weiner, supra, 54 Cal.3d at p. 483; People v. Burnick (1975) 14 Cal.3d 306, 314.)
The degree of burden of proof applied in a particular situation is an expression of the degree of confidence society wishes to require of the resolution of a question of fact. (Weiner, supra, 54 Cal.3d at p. 487.) The burden of proof thus serves to allocate the risk of error between the parties, and varies in proportion to the gravity of the consequences of an erroneous resolution. (Ibid.; Burnick, supra, 14 Cal.3d at p. 310.) Preponderance of the evidence results in the roughly equal sharing of the risk of error. (Weiner, supra, 54 Cal.3d at p. 488.) To impose any higher burden of proof demonstrates a preference for one side's interests. (Ibid.) Generally, facts are subject to a higher burden of proof only where particularly important individual interests or rights are at stake; even severe civil sanctions not implicating such interests or rights do not require a higher burden of proof. (Id. at p. 487; see Addington v. Texas (1979) 441 U.S. 418, 423-424 [60 L.Ed.2d 323] [clear and convincing standard required only when interests at stake are "more substantial than mere loss of money"].)
To determine whether a higher standard of proof is warranted in the present situation, we must first identify the interests at stake. Section 760 provides that all property acquired during marriage is community property. The interests of a husband and wife in the community property are "present, existing, and equal . . . ." (§ 751.) However, property acquired after a separation is classified as the acquiring spouse's separate property. (§ 771.) A spouse does not have any interest in the separate property of the other spouse. (§ 752.) Therefore, a determination of the date of separation affects only the classification of property, depending on whether it was acquired before or after the separation.
The risk of error in this classification of property is identical for both spouses. If the trial court selects the earlier of two contested dates of separation, the property a spouse accumulated after that date will be that spouse's separate property, and the other spouse will lose the half interest in it under section 760. However, if the court selects the later separation date, then the same property will be community property and the accumulating spouse will lose a half interest in it by operation of section 760. The determination of a separation date, therefore, results in the loss of an economic interest in property by one or the other of the spouses. Which spouse loses this economic interest depends on the trial court's determination of the separation date. The interests of the parties are inverse but equal. Since both parties have identical economic interests at risk in contesting the date of separation, it would otherwise be appropriate to apply the preponderance standard on the issue because of its roughly equal distribution of the risk of error. (Weiner, supra, 54 Cal.3d at p. 488.)
Joy does not identify any constitutional basis for departing from the preponderance standard (such as Burdick's concern with due process). Based on the statutory presumption that property acquired during marriage is community property, she argues any attempt to overcome that presumption should require a higher burden. She cites cases which suggest an evaluation of the evidence in separation-date cases must take into account that section 771 effects a transmutation of this "fundamental" community presumption. (In re Marriage of von der Nuell (1994) 23 Cal.App.4th 730, 734; In re Marriage of Baragry (1977) 73 Cal.App.3d 444, 448.) In the first place, neither case expressly stands for imposing a higher burden of proof, and it is the general rule cases are not authority for propositions not expressly considered. (Honey Baked Hams, Inc. v. Dickens (1995) 37 Cal.App.4th 421, 428.) Second, the Supreme Court has repeatedly cautioned against making too much of the choice of language in judicial opinions describing burdens of proof without taking into consideration the statutory preference for proof by preponderance in civil action. (Weiner, supra, 54 Cal.3d at p. 484; Liodas v. Sahadi (1977) 19 Cal.3d 278, 289 & fn. 6; Edmonds v. H. W. Wilcox (1918) 178 Cal. 222, 224-225.) Third, this "fundamental" presumption can be set aside as simply as by the joint execution of an antenuptial agreement providing that all accumulations during marriage are to be presumed to be the separate property of the accumulator. Finally, the transmutation is the consequence that a statute of equal dignity ascribes to the state of separation. Thus, the mere fact that property which otherwise might be characterized as community will be considered separate is no reason for a higher standard of proof.
The history of section 771 itself also undermines Joy's position. The predecessors to the statute displayed a preference for one party over the other, providing that the earnings and accumulations of a wife while she was living separate from her husband were her own separate property, while a husband's earnings were his separate property only if his wife abandoned him unjustifiably. (11 Witkin, Summary of Cal. Law, op. cit. supra, Community Property, § 9, p. 381.) In 1971, however, the Legislature amended the statute to provide that either spouse's earnings and accumulations after a separation were separate property. (Id. at p. 382.) This amendment suggests the Legislature intended husbands and wives to be treated equally on this issue, even at a time when a husband was more likely to be the primary wage earner and thus divest the wife of her former interest in his earnings during separation.
Turning to the common law, Joy argues that cases in analogous situations have used language similar to the clear-and-convincing standard. (Estate of Duncan (1937) 9 Cal.2d 207; Estate of Jolly (1925) 196 Cal. 547; Estate of Brenneman (1958) 157 Cal.App.2d 474; Thomasset v. Thomasset (1953) 122 Cal.App.2d 116.) This argument again runs afoul of the problem of using language from opinions which do not expressly consider departing from the preponderance standard. (Weiner, supra, 54 Cal.3d at p. 484; Honey Baked Hams, Inc., supra, 37 Cal.App.4th at p. 428.)
Moreover, when we compare this risk of the loss of an economic interest with the interests at stake in cases applying the "clear and convincing" standard, it falls short. All involve interests more substantial than the mere loss of money. (In re Angelia P. (1981) 28 Cal.3d 908 [termination of parental rights]; Lillian F. v. Superior Court (1984) 160 Cal.App.3d 314 [capacity of conservatee to consent to treatment]; see Weiner, supra, 54 Cal.3d at p. 489 [contradiction of duly executed deed of title]; Addington, supra, 441 U.S. 418 [civil commitments]; Woodby v. Immigration Service (1966) 385 U.S. 276 [17 L.Ed.2d 362] [deportation proceedings]; Chaunt v. United States (1960) 364 U.S. 350 [5 L.Ed.2d. 120] [denaturalization proceedings].) Nor does proving the intent to separate encounter the difficulties which have led courts to impose higher standards of certainty. (See Weiner, supra, 54 Cal.3d at p. 489 [proof of oral agreement to make will, one party deceased; proof of terms of oral trust, courts require specificity to enforce].) Thus, there is no basis in precedent to depart from the preponderance standard for proof of the date of separation.
Joy urges us to take the step of establishing a higher standard on the basis of public policy considerations. She argues that it is unfair for a party to testify to an intention to end the marriage after engaging in equivocal conduct, "keeping the other spouse on an emotional and financial 'chain.'" However, the trial court does not base its decision solely on a party's testimony regarding intent. (In re Marriage of Hardin (1995) 38 Cal.App.4th 448, 451.) The court looks at the conduct of the parties as an indication of the subjective intent. (Id. at p. 453.) Thus, even if one of the parties testifies to an intent to sever the relationship completely, the trial court can find to the contrary if the concomitant conduct does not support the stated subjective intention.
Alternatively, Joy suggests that a higher standard would encourage the party who wants the earlier date of separation to choose less ambiguous alternatives of demonstrating a subjective intent to establish separate property rights. However, Joy offers no explanation for why the burden to choose less ambiguous conduct should be imposed on the party seeking to establish a separate interest and not the party seeking to establish a community interest, which would be the effect of a higher burden of proof. Both parties stand to lose the same economic interest, both parties have recourse to means of determining the intent of the other, and thus both parties should be equally burdened with the duty to protect their respective marital rights.
Finally, Joy argues the task of the trier of fact would be facilitated by raising the burden of proof. However, preponderance is the default burden of proof for every issue in civil law and even some issues in criminal law. We are not convinced that a trial court has any more difficulty in determining a date of separation than in determining whether a confession is voluntary under the circumstances of interrogation. This suggestion thus begs the question why the determination of a date of separation is qualitatively different.
Because the interests at stake are the same for both parties and the interests involved are economic, the parties should share the risk of error roughly equally. The preponderance of the evidence standard is sufficient.
[This Part Is Not Certified for Publication]
II In determining the date of separation, the question is whether one of the parties had a subjective intent to completely and finally end the marriage. (Marriage of von der Nuell, supra, 23 Cal.App.4th at p. 736; Makeig v. United Security Bk. & T. Co. (1931) 112 Cal.App. 138, 143.) In ascertaining this subjective intent, the best evidence is the conduct of the parties. (In re Marriage of Hardin, supra, 38 Cal.App.4th at p. 451.) Thus, the pertinent analysis is whether one of the spouses had the subjective intent to sever the marital relationship, and whether the conduct supported this subjective intent. (Id. at p. 453.) No particular facts are determinative; the court must consider all evidence that relates to the subjective intent. (Id. at p. 452.)
Joy contends that there was no substantial evidence to support the trial court's finding that when Eric moved out on February 5, 1985, he intended a complete and final separation. In reviewing her challenge, we resolve conflicts in facts and inferences in favor of the prevailing party. (Kahn v. Department of Motor Vehicles (1993) 16 Cal.App.4th 159, 169.) "Where the evidence is in conflict, the appellate court will not disturb the verdict of the jury or the findings of the trial court." (9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 278, p. 289 [italics omitted].) As the trial court adopted Eric's date of separation, we therefore recount the evidence in his favor.
[End of Part Not Certified for Publication]
A Joy and Eric married in 1963. Until 1985, they lived on Evergreen Street in Yreka. On February 5, 1985, Eric moved out of the Evergreen residence because he no longer wanted to be married. He no longer loved Joy and had fallen in love with another woman. He removed his personal items from the Evergreen residence shortly thereafter, but he left some of his tools and equipment in the garage. He changed his mailing address immediately. The only mail he continued to receive at the Evergreen residence was junk mail and an insurance policy of which Joy was the beneficiary. Eric never moved back into the house. He had two girlfriends between 1985 and 1994, one of whom he lived with for seven or eight years.
Joy filed her first dissolution petition in 1985. Eric hired an attorney to take care of everything and did not know whether a response had ever been filed. He never did anything to advance the divorce proceedings, but he did keep in touch with the attorney he had hired to handle the matter. He assumed that Joy would be the one to prosecute the divorce to judgment.
After Eric moved out, he ate meals at Joy's house approximately once a week. There were almost always other family members present. Eric testified that he did not have a key to the house and would knock on the door for Joy to admit him. Although Joy claimed he had entered without knocking, Eric denied ever doing so.
Joy and Eric attended a number of family activities together such as weddings, graduations, and funerals. Joy said that they had gone on picnics and had gone out to dinner a couple of times. Eric had called Joy personal endearments over the nine years such as "dear" and "honey." He also kissed her, and patted her on the rear. They had a few spontaneous sexual encounters after 1985; the last occurred sometime in the late 1980s. Joy testified she and Eric had attended one marriage counseling session. Eric did not remember it, but added that if it occurred, it would have been at Joy's insistence. They attended some holiday parties together at his Yreka auto parts store, one of which was at Joy's request. Joy did not care for Eric when he was sick, she did not do his laundry, and did not go on any vacations with him after the separation.
They did not own any joint credit cards after the separation. Pursuant to a support order, Eric made payments to Joy drawn on his business. Joy continued to be insured under the business insurance policy. In addition to the monthly support payments, Eric made a number of improvements on the Evergreen residence. He paid for installing new carpet, paving the driveway, painting the house, fixing the roof and installing a new stove. The parties filed joint tax returns from 1985 through 1993. Eric testified that he had done so for economic reasons on the advice of his accountant. He began filing separately in 1993 because the alimony payments had increased so much that it was more economically beneficial than filing jointly.
When Eric and Joy talked about divorce, Eric told her that he was "working on it." Joy interpreted this to mean he was working on moving back in and stabilizing their relationship. Eric testified he meant he had been thinking about the economic aspect of the situation, not the social aspect. He was concerned about the expense of dividing their property and his ability to continue his business. Joy also testified that Eric had indicated to her that he did not want a divorce. The parties had several discussions regarding the division of their property after 1985, but they never resulted in a resolution.
Eric testified he had not thought the marriage was salvageable when he moved out, or that there could be a reconciliation. He thought moving out of the joint residence in 1985 amounted to a termination of their marriage. He never expressly told Joy that the marriage was over, but he thought his actions "probably" indicated it.
In 1994, Joy filed a new dissolution petition alleging a June 1994 separation date. She testified she had decided she had to get on with her life. Eric's response to the petition alleged a 1985 separation date.
B Eric's testimony establishes his after-the-fact recount of his subjective intent to sever the marriage completely and finally when he moved out on February 5, 1985. He testified he did not think the marriage was salvageable or there was a possibility of a reconciliation, and he had considered his leaving a termination of the marriage.
There is substantial evidence in the record that Eric's conduct supported this stated subjective intent. Shortly after Eric moved out of the joint residence, he removed almost all of his personal items, leaving only some tools and equipment in the garage. He also immediately changed his mailing address; only junk mail and an insurance policy in which Joy had an interest continued to be delivered to the residence. He never moved back to the house. He even maintained a residence with another woman for most of the period of separation.
The lack of a persistent social relationship between the parties also supports Eric's stated intentions. Eric only ate with Joy approximately once per week and then almost always in the presence of other family members. He did not have a key to the house, and we credit the testimony he never entered without knocking. They had only sporadic sexual encounters after separation, none more recent than the late 1980s, and Joy otherwise did not attend to his illnesses, did not do his laundry, and did not vacation with him.
The evidence of the joint tax returns and his comments to Joy that he was "working on it" are not outweighed by the other evidence. We credit Eric's testimony the joint tax returns were solely for an economic purpose on the advice of his CPA. This testimony is supported by his filing separately as soon as that became the economically beneficial choice. As for his comments to Joy, read in light of the entire record his testimony that this referred to the economic aspect of the divorce and not the social aspect is plausible. Thus, substantial evidence exists to support the trial court's finding that when Eric moved out in 1985, he intended to completely and finally sever the marital relationship.
DISPOSITION The judgment is affirmed.
BLEASE, Acting P.J.
MORRISON, J.
1 1. Pursuant to California Rules of Court, rules 976(B) and 976.1, this opinion is certified for publication with the exception of Part II.
2 . Because the parties share a surname, we shall refer to them by their first names for clarity of reference.
3 . The statute, which continues the substance of former Civil Code section 5118 without change (11 Witkin, Summ. of Cal. Law (9th ed. 1996 Supp.) Community Property, § 10, p. 166), provides, "The earnings and accumulations of a spouse . . . , while living separate and apart from the other spouse, are the separate property of the spouse."
4 Daily Appellate Report
APPEAL from the judgment of the Superior Court of the County of Siskiyou, Judge Cris Stromsness. Affirmed.
Arnold David Breyer, Law Offices of Arnold David Breyer, E. Elizabeth Summers, Bien & Summers for Appellant.
Michael B. Dashjian and Deane Sellon for Respondent.
In this bifurcated marital dissolution proceeding, Joy M. Peters (Joy) 2 appeals from the judgment establishing the date of separation (Fam. Code, § 771 [undesignated section references will be to this code]) from Eric W. Peters (Eric). In the published part of the opinion we conclude the determination of a date of separation is proven by a preponderance of evidence rather than by clear and convincing evidence. In the nonpublished part of the opinion we find there is substantial evidence to support the trial court's selection of a separation date. We will summarize the evidence adduced at trial in the portion of the discussion analyzing its sufficiency, and affirm the judgment.
DISCUSSION I Joy argues that the law and "public policy" require a higher burden of proof than preponderance of the evidence to determine the date of separation pursuant to section 771. 3 Before we address the merits of the issue, we consider Eric's contention that Joy has waived appellate consideration of it because she failed to raise it initially in the trial court.
Issues usually cannot be raised for the first time on appeal. (In re Marriage of Hinds (1988) 205 Cal.App.3d 1398, 1403.) An exception is occasionally made where, as here, the issue presents a pure question of law. (Hale v. Morgan (1978) 22 Cal.3d 388, 394.) We will thus reach and reject the contention on the merits.
Evidence Code section 115 provides for three burdens of proof (defined as "the obligation of a party to establish by evidence a requisite degree of belief concerning a fact in the mind of the trier of fact"). "Except as otherwise provided by law," issues of fact are determined by a preponderance of the evidence. (Weiner v. Fleischman (1991) 54 Cal.3d 476, 483; Evid. Code, § 115.) A higher standard is "clear and convincing" proof, which has been held to require evidence "so clear as to leave no substantial doubt." (In re Jost (1953) 117 Cal.App.2d 379, 383.) The highest standard is proof beyond a reasonable doubt, applied to cases involving deprivation of important personal rights. (1 Witkin, Cal. Evidence (3d ed. 1986), Burden of Proof and Presumptions, § 162, pp. 139-140.)
Contrary to Eric's insistence that it is not for this court to establish an alternate standard of proof without direction from the legislature, Evidence Code section 115 expressly contemplates exceptions to the preponderance standard developed by the common law, because the determination of the degree of proof to be applied in a particular situation is the kind of question which has traditionally been left to the judiciary to resolve. (Weiner, supra, 54 Cal.3d at p. 483; People v. Burnick (1975) 14 Cal.3d 306, 314.)
The degree of burden of proof applied in a particular situation is an expression of the degree of confidence society wishes to require of the resolution of a question of fact. (Weiner, supra, 54 Cal.3d at p. 487.) The burden of proof thus serves to allocate the risk of error between the parties, and varies in proportion to the gravity of the consequences of an erroneous resolution. (Ibid.; Burnick, supra, 14 Cal.3d at p. 310.) Preponderance of the evidence results in the roughly equal sharing of the risk of error. (Weiner, supra, 54 Cal.3d at p. 488.) To impose any higher burden of proof demonstrates a preference for one side's interests. (Ibid.) Generally, facts are subject to a higher burden of proof only where particularly important individual interests or rights are at stake; even severe civil sanctions not implicating such interests or rights do not require a higher burden of proof. (Id. at p. 487; see Addington v. Texas (1979) 441 U.S. 418, 423-424 [60 L.Ed.2d 323] [clear and convincing standard required only when interests at stake are "more substantial than mere loss of money"].)
To determine whether a higher standard of proof is warranted in the present situation, we must first identify the interests at stake. Section 760 provides that all property acquired during marriage is community property. The interests of a husband and wife in the community property are "present, existing, and equal . . . ." (§ 751.) However, property acquired after a separation is classified as the acquiring spouse's separate property. (§ 771.) A spouse does not have any interest in the separate property of the other spouse. (§ 752.) Therefore, a determination of the date of separation affects only the classification of property, depending on whether it was acquired before or after the separation.
The risk of error in this classification of property is identical for both spouses. If the trial court selects the earlier of two contested dates of separation, the property a spouse accumulated after that date will be that spouse's separate property, and the other spouse will lose the half interest in it under section 760. However, if the court selects the later separation date, then the same property will be community property and the accumulating spouse will lose a half interest in it by operation of section 760. The determination of a separation date, therefore, results in the loss of an economic interest in property by one or the other of the spouses. Which spouse loses this economic interest depends on the trial court's determination of the separation date. The interests of the parties are inverse but equal. Since both parties have identical economic interests at risk in contesting the date of separation, it would otherwise be appropriate to apply the preponderance standard on the issue because of its roughly equal distribution of the risk of error. (Weiner, supra, 54 Cal.3d at p. 488.)
Joy does not identify any constitutional basis for departing from the preponderance standard (such as Burdick's concern with due process). Based on the statutory presumption that property acquired during marriage is community property, she argues any attempt to overcome that presumption should require a higher burden. She cites cases which suggest an evaluation of the evidence in separation-date cases must take into account that section 771 effects a transmutation of this "fundamental" community presumption. (In re Marriage of von der Nuell (1994) 23 Cal.App.4th 730, 734; In re Marriage of Baragry (1977) 73 Cal.App.3d 444, 448.) In the first place, neither case expressly stands for imposing a higher burden of proof, and it is the general rule cases are not authority for propositions not expressly considered. (Honey Baked Hams, Inc. v. Dickens (1995) 37 Cal.App.4th 421, 428.) Second, the Supreme Court has repeatedly cautioned against making too much of the choice of language in judicial opinions describing burdens of proof without taking into consideration the statutory preference for proof by preponderance in civil action. (Weiner, supra, 54 Cal.3d at p. 484; Liodas v. Sahadi (1977) 19 Cal.3d 278, 289 & fn. 6; Edmonds v. H. W. Wilcox (1918) 178 Cal. 222, 224-225.) Third, this "fundamental" presumption can be set aside as simply as by the joint execution of an antenuptial agreement providing that all accumulations during marriage are to be presumed to be the separate property of the accumulator. Finally, the transmutation is the consequence that a statute of equal dignity ascribes to the state of separation. Thus, the mere fact that property which otherwise might be characterized as community will be considered separate is no reason for a higher standard of proof.
The history of section 771 itself also undermines Joy's position. The predecessors to the statute displayed a preference for one party over the other, providing that the earnings and accumulations of a wife while she was living separate from her husband were her own separate property, while a husband's earnings were his separate property only if his wife abandoned him unjustifiably. (11 Witkin, Summary of Cal. Law, op. cit. supra, Community Property, § 9, p. 381.) In 1971, however, the Legislature amended the statute to provide that either spouse's earnings and accumulations after a separation were separate property. (Id. at p. 382.) This amendment suggests the Legislature intended husbands and wives to be treated equally on this issue, even at a time when a husband was more likely to be the primary wage earner and thus divest the wife of her former interest in his earnings during separation.
Turning to the common law, Joy argues that cases in analogous situations have used language similar to the clear-and-convincing standard. (Estate of Duncan (1937) 9 Cal.2d 207; Estate of Jolly (1925) 196 Cal. 547; Estate of Brenneman (1958) 157 Cal.App.2d 474; Thomasset v. Thomasset (1953) 122 Cal.App.2d 116.) This argument again runs afoul of the problem of using language from opinions which do not expressly consider departing from the preponderance standard. (Weiner, supra, 54 Cal.3d at p. 484; Honey Baked Hams, Inc., supra, 37 Cal.App.4th at p. 428.)
Moreover, when we compare this risk of the loss of an economic interest with the interests at stake in cases applying the "clear and convincing" standard, it falls short. All involve interests more substantial than the mere loss of money. (In re Angelia P. (1981) 28 Cal.3d 908 [termination of parental rights]; Lillian F. v. Superior Court (1984) 160 Cal.App.3d 314 [capacity of conservatee to consent to treatment]; see Weiner, supra, 54 Cal.3d at p. 489 [contradiction of duly executed deed of title]; Addington, supra, 441 U.S. 418 [civil commitments]; Woodby v. Immigration Service (1966) 385 U.S. 276 [17 L.Ed.2d 362] [deportation proceedings]; Chaunt v. United States (1960) 364 U.S. 350 [5 L.Ed.2d. 120] [denaturalization proceedings].) Nor does proving the intent to separate encounter the difficulties which have led courts to impose higher standards of certainty. (See Weiner, supra, 54 Cal.3d at p. 489 [proof of oral agreement to make will, one party deceased; proof of terms of oral trust, courts require specificity to enforce].) Thus, there is no basis in precedent to depart from the preponderance standard for proof of the date of separation.
Joy urges us to take the step of establishing a higher standard on the basis of public policy considerations. She argues that it is unfair for a party to testify to an intention to end the marriage after engaging in equivocal conduct, "keeping the other spouse on an emotional and financial 'chain.'" However, the trial court does not base its decision solely on a party's testimony regarding intent. (In re Marriage of Hardin (1995) 38 Cal.App.4th 448, 451.) The court looks at the conduct of the parties as an indication of the subjective intent. (Id. at p. 453.) Thus, even if one of the parties testifies to an intent to sever the relationship completely, the trial court can find to the contrary if the concomitant conduct does not support the stated subjective intention.
Alternatively, Joy suggests that a higher standard would encourage the party who wants the earlier date of separation to choose less ambiguous alternatives of demonstrating a subjective intent to establish separate property rights. However, Joy offers no explanation for why the burden to choose less ambiguous conduct should be imposed on the party seeking to establish a separate interest and not the party seeking to establish a community interest, which would be the effect of a higher burden of proof. Both parties stand to lose the same economic interest, both parties have recourse to means of determining the intent of the other, and thus both parties should be equally burdened with the duty to protect their respective marital rights.
Finally, Joy argues the task of the trier of fact would be facilitated by raising the burden of proof. However, preponderance is the default burden of proof for every issue in civil law and even some issues in criminal law. We are not convinced that a trial court has any more difficulty in determining a date of separation than in determining whether a confession is voluntary under the circumstances of interrogation. This suggestion thus begs the question why the determination of a date of separation is qualitatively different.
Because the interests at stake are the same for both parties and the interests involved are economic, the parties should share the risk of error roughly equally. The preponderance of the evidence standard is sufficient.
[This Part Is Not Certified for Publication]
II In determining the date of separation, the question is whether one of the parties had a subjective intent to completely and finally end the marriage. (Marriage of von der Nuell, supra, 23 Cal.App.4th at p. 736; Makeig v. United Security Bk. & T. Co. (1931) 112 Cal.App. 138, 143.) In ascertaining this subjective intent, the best evidence is the conduct of the parties. (In re Marriage of Hardin, supra, 38 Cal.App.4th at p. 451.) Thus, the pertinent analysis is whether one of the spouses had the subjective intent to sever the marital relationship, and whether the conduct supported this subjective intent. (Id. at p. 453.) No particular facts are determinative; the court must consider all evidence that relates to the subjective intent. (Id. at p. 452.)
Joy contends that there was no substantial evidence to support the trial court's finding that when Eric moved out on February 5, 1985, he intended a complete and final separation. In reviewing her challenge, we resolve conflicts in facts and inferences in favor of the prevailing party. (Kahn v. Department of Motor Vehicles (1993) 16 Cal.App.4th 159, 169.) "Where the evidence is in conflict, the appellate court will not disturb the verdict of the jury or the findings of the trial court." (9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 278, p. 289 [italics omitted].) As the trial court adopted Eric's date of separation, we therefore recount the evidence in his favor.
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A Joy and Eric married in 1963. Until 1985, they lived on Evergreen Street in Yreka. On February 5, 1985, Eric moved out of the Evergreen residence because he no longer wanted to be married. He no longer loved Joy and had fallen in love with another woman. He removed his personal items from the Evergreen residence shortly thereafter, but he left some of his tools and equipment in the garage. He changed his mailing address immediately. The only mail he continued to receive at the Evergreen residence was junk mail and an insurance policy of which Joy was the beneficiary. Eric never moved back into the house. He had two girlfriends between 1985 and 1994, one of whom he lived with for seven or eight years.
Joy filed her first dissolution petition in 1985. Eric hired an attorney to take care of everything and did not know whether a response had ever been filed. He never did anything to advance the divorce proceedings, but he did keep in touch with the attorney he had hired to handle the matter. He assumed that Joy would be the one to prosecute the divorce to judgment.
After Eric moved out, he ate meals at Joy's house approximately once a week. There were almost always other family members present. Eric testified that he did not have a key to the house and would knock on the door for Joy to admit him. Although Joy claimed he had entered without knocking, Eric denied ever doing so.
Joy and Eric attended a number of family activities together such as weddings, graduations, and funerals. Joy said that they had gone on picnics and had gone out to dinner a couple of times. Eric had called Joy personal endearments over the nine years such as "dear" and "honey." He also kissed her, and patted her on the rear. They had a few spontaneous sexual encounters after 1985; the last occurred sometime in the late 1980s. Joy testified she and Eric had attended one marriage counseling session. Eric did not remember it, but added that if it occurred, it would have been at Joy's insistence. They attended some holiday parties together at his Yreka auto parts store, one of which was at Joy's request. Joy did not care for Eric when he was sick, she did not do his laundry, and did not go on any vacations with him after the separation.
They did not own any joint credit cards after the separation. Pursuant to a support order, Eric made payments to Joy drawn on his business. Joy continued to be insured under the business insurance policy. In addition to the monthly support payments, Eric made a number of improvements on the Evergreen residence. He paid for installing new carpet, paving the driveway, painting the house, fixing the roof and installing a new stove. The parties filed joint tax returns from 1985 through 1993. Eric testified that he had done so for economic reasons on the advice of his accountant. He began filing separately in 1993 because the alimony payments had increased so much that it was more economically beneficial than filing jointly.
When Eric and Joy talked about divorce, Eric told her that he was "working on it." Joy interpreted this to mean he was working on moving back in and stabilizing their relationship. Eric testified he meant he had been thinking about the economic aspect of the situation, not the social aspect. He was concerned about the expense of dividing their property and his ability to continue his business. Joy also testified that Eric had indicated to her that he did not want a divorce. The parties had several discussions regarding the division of their property after 1985, but they never resulted in a resolution.
Eric testified he had not thought the marriage was salvageable when he moved out, or that there could be a reconciliation. He thought moving out of the joint residence in 1985 amounted to a termination of their marriage. He never expressly told Joy that the marriage was over, but he thought his actions "probably" indicated it.
In 1994, Joy filed a new dissolution petition alleging a June 1994 separation date. She testified she had decided she had to get on with her life. Eric's response to the petition alleged a 1985 separation date.
B Eric's testimony establishes his after-the-fact recount of his subjective intent to sever the marriage completely and finally when he moved out on February 5, 1985. He testified he did not think the marriage was salvageable or there was a possibility of a reconciliation, and he had considered his leaving a termination of the marriage.
There is substantial evidence in the record that Eric's conduct supported this stated subjective intent. Shortly after Eric moved out of the joint residence, he removed almost all of his personal items, leaving only some tools and equipment in the garage. He also immediately changed his mailing address; only junk mail and an insurance policy in which Joy had an interest continued to be delivered to the residence. He never moved back to the house. He even maintained a residence with another woman for most of the period of separation.
The lack of a persistent social relationship between the parties also supports Eric's stated intentions. Eric only ate with Joy approximately once per week and then almost always in the presence of other family members. He did not have a key to the house, and we credit the testimony he never entered without knocking. They had only sporadic sexual encounters after separation, none more recent than the late 1980s, and Joy otherwise did not attend to his illnesses, did not do his laundry, and did not vacation with him.
The evidence of the joint tax returns and his comments to Joy that he was "working on it" are not outweighed by the other evidence. We credit Eric's testimony the joint tax returns were solely for an economic purpose on the advice of his CPA. This testimony is supported by his filing separately as soon as that became the economically beneficial choice. As for his comments to Joy, read in light of the entire record his testimony that this referred to the economic aspect of the divorce and not the social aspect is plausible. Thus, substantial evidence exists to support the trial court's finding that when Eric moved out in 1985, he intended to completely and finally sever the marital relationship.
DISPOSITION The judgment is affirmed.
DAVIS, J.
We concur:BLEASE, Acting P.J.
MORRISON, J.
1 1. Pursuant to California Rules of Court, rules 976(B) and 976.1, this opinion is certified for publication with the exception of Part II.
2 . Because the parties share a surname, we shall refer to them by their first names for clarity of reference.
3 . The statute, which continues the substance of former Civil Code section 5118 without change (11 Witkin, Summ. of Cal. Law (9th ed. 1996 Supp.) Community Property, § 10, p. 166), provides, "The earnings and accumulations of a spouse . . . , while living separate and apart from the other spouse, are the separate property of the spouse."
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