In rе the Marriage of SHERYL JONES DAVIS and KEITH XAVIER DAVIS. SHERYL JONES DAVIS, Respondent, v. KEITH XAVIER DAVIS, Appellant.
No. S215050
Supreme Court of California
July 20, 2015
846 | 61 Cal.4th 846
Law Office of Stephanie J. Finelli and Stephanie J. Finelli for Appellant.
Ferguson Case Orr Paterson, Wendy C. Lascher; Ivie, McNeill & Wyatt and Lilia E. Duchrow for Respondent.
CANTIL-SAKAUYE, C. J.—In a marital dissolution proceeding, a court determines the division of property between the spouses by first characterizing the parties’ property as community property or separate property. (In re Marriage of Valli (2014) 58 Cal.4th 1396, 1399 [171 Cal.Rptr.3d 454, 324 P.3d 274].)
I. FACTUAL AND PROCEDURAL BACKGROUND
Keith Xavier Davis (husbаnd) and Sheryl Jones Davis (wife) were married on June 12, 1993. They have two children, a daughter born in August 1995 and a son born in November 1999. Wife filed for dissolution on December 30, 2008.
At trial on the issue of the date of their separation, wife described the couple‘s marriage as turbulent. She testified that they stopped being sexually intimate after their son was conceived in 1999. They never went on a “date” after their son was born. The parties disagreed as to when they stopped sharing a bedroom in their marital home. Husband testified wife moved to another bedroom in 2001; wife testified this happened in 2004. Their trial testimony indicates that they both attended the children‘s activities, but traveled to the locations by separate cars. Wife did her own and the children‘s laundry. Husband did his laundry. Both parties prepared meals, but wife would not prepare something different for husband if he was dissatisfied with the meal she made for herself and the children. The parties took some family vacations together, but also took separate vacations. In deposition testimony, wife claimed that by 2004 they were “living entirely separate lives.” They spoke about divorce, but stayed together for the sake of the children.
The parties maintained a joint bank account from the beginning of their marriage, which wife managed. In 2001, however, husband started his own business and at some point opened a separate bank account. In 2003, wife reactivated a separate bank account of her own to manage her business funds
On June 1, 2006, after the end of their son‘s school year, wife announced to husband that she was “through” with the marriage. According to her, the “last component” of their marriage was their finances. On June 1, 2006, wife presented husband with a financial ledger that itemized their joint household expenses and their individual expenses. She did this because she wanted the parties to contribute equally to running the home and funding the children‘s expenses, while being solely responsible for their own respective personal expenses. Wife removed husband from her American Express credit account and returned several of husband‘s credit cards to him. She believed at this point that they were acting simply as roommates. In July 2006, wife began working full-time, substantially increasing her earnings. Husband left his job with Clorox in September 2006.
The parties continued to live in the marital home after June 1, 2006. Wife continued to keep her personal belongings there. She continued to receive mail and telephone calls there. She continued to cook meals at the home when she was in town, although she often traveled for her work. She did not change the address on her driver‘s license. In August 2006, the parties took a family vacation to Hawaii with their children. However, they subsequently took no out-of-state vacations with one another. They continued to celebrate special occasions, such as birthdays and holidays, together as a family as they had previously done. They both continued to use their joint bank account.
When wife filed the petition for dissolution of the marriage on December 30, 2008, she listed the date of their separation as June 1, 2006. In his initial respоnse to wife‘s petition, husband listed the date of separation as January 2, 2009 (a few days after wife‘s filing of the petition). Wife did not move out of the marital home until July 2011. Husband subsequently filed an amended response listing the date of separation as July 1, 2011.
After trial of the issue, the court found the date of separation to be June 1, 2006. The Court of Appeal affirmed. In relevant part, it disagreed with the majority decision in In re Marriage of Norviel (2002) 102 Cal.App.4th 1152 [126 Cal.Rptr.2d 148] (Norviel), which held that physically living apart is “an indispensable threshold requirement” for separation under
A. Contentions of the parties and standard of review
Husband contends that spouses cannot be “living separate and apart” for purposes of
Although the date of separation is normally a factual issue to be reviewed for substantial evidence (In re Marriage of Manfer (2006) 144 Cal.App.4th 925, 930 [50 Cal.Rptr.3d 785] (Manfer)), resolution of the opposing contentions here depends on statutory construction of the language of
B. Statutory construction of section 771(a)
“‘We begin with the plain language of the statute, affording the words of the provision their ordinary and usual meaning and viewing them in their statutory context, because the language employed in the Legislature‘s
1. The plain meaning of “living separate and apart”
As noted earlier,
In considering whether this statute has a plain meaning, we recognize that “the phrase ‘living separate and apart’ is a term of art . . . .” (1 Kirkland et al., Cal. Family Law Practice and Procedure (2d ed. 2015) Charactеrization—Division in General, § 20.06[2][a], p. 20-26.) As such, it has been defined in Black‘s Law Dictionary as spouses “residing in different places and having no intention of resuming marital relations” (Black‘s Law Dict. (7th ed. 1999) p. 945, col. 2, italics added) and more recently as spouses “living away from each other, along with at least one spouse‘s intent to dissolve the marriage” (Black‘s Law Dict. (10th ed. 2014) p. 1076, col. 2, italics added). These definitions contemplate both a physical separation of residence and an accompanying intent to end the marital relationship. They incorporate an ordinary and common linguistic understanding of the word “apart,” used as an adverb, as being “[a]t a distance in place, position, or time” or “[a]way from” and the word “separate” as denoting being “ke[pt] apart,” “space[d] apart” or “scatter[ed].” (American Heritage Dict. (4th ed. 2000) pp. 82, col. 2, 1587, col. 1; accord, Webster‘s 3d New Internat. Dict. (2002) p. 98, col. 2 [defining “apart” as “at a . . . distance,” “separate[] in space or time“].)1
Indeed, both legal usage of the phrase “living separate and apart” and colloquial understanding of what it means for someone to live “separate” and “apart” from someone else do not include persons living together in the same home. Ordinary usage of the language itself contemplates the parties’ occupation of separate residences. Therefore, the statute on its face appears to have a commonly understood, plain meaning.
To consider whether the Legislature intended the language of
2. Consideration of extrinsic aids
The language of
The 1870 Act did not contain a definition of the phrase “living separate and apart” used in section 2. (Stats. 1870, ch. 161, § 2, p. 226.) However, the Legislature‘s understanding that the phrase connoted a threshold requirement
In this regard, we find it additionally helpful to recall the historical context of the 1870 Act. At that time, married women had very limited power over their property. In the absence of a binding premarital agreement, the husband had the absolute right of “management and control” of the community property of the marriage, including the power of sale of assets. (Stats. 1850, ch. 103, §§ 9, 14, pp. 254, 255.) Under the original 1850 statute defining spousal property rights, the “rents and profits of the separate property” of both husband and wife were deemed community property and were, therefore, under the exclusive control of the husband. (Id., § 9, p. 254.) In addition, the husband had the “right of management and control” of the wife‘s separate property “during the continuance of the marriage.” (Id., § 6, p. 254.) Her protection against her husband‘s inappropriate sale of her separate property “during the continuance of the marriage” lay in a procedural requirement that the sale or encumbrance must be in an instrument in writing signed by both husband and wife, and her protection against her husband‘s general mismanagement of her separate property during the marriage lay in an application to the court for the appointment of a trustee to act on her behalf. (Id., §§ 6, 8, p. 254.)
Between 1850 and 1870, the Legislature recognized a few circumstances under which a married woman could have some control over her separate property. By legislation in 1852, a married woman was given authority to run a business in her own name under limited circumstances as a “sole trader” and under such circumstances, could retain the earnings of such a business as her separate property; they were not subject to the debts of her husband and she had the authority to sue her debtors. (See Bassett, supra, § 1:3, pp. 6–7.) By legislation in 1853, if the terms of an instrument bequeathing, devising or gifting property to the wife provided that the rents and profits were to “be applied to her sole and seрarate use,” the wife could manage and dispose of such rents and profits. (Stats. 1853, ch. 116, § 1, p. 165.) Legislation adopted
Nevertheless, under the statutory scheme in effect in 1870, until entry of a decree of dissolution of the marriage (Stats. 1850, ch. 103, § 12, p. 255 [requiring a division of a couple‘s community property in the decree of dissolution]), it appears that a woman who was either involved in divorce proceedings or whose husband had deserted or otherwise left her, and who did not have separate property coming within one of the statutory provisions giving her control over it, would have no right of access to the financial sustenance needed to meet the expenses of daily life on her own. Commentators have observed that the law‘s restrictive provisions at this time were to some extent inconsistent with traditional principles of community property law—principles that actually afforded more legal protection to women than did the common law principles that seem to have filtered into the California system. (See Prager, supra, 24 UCLA L.Rev. at pp. 34-46; see also Cammack, Marital Property in California and Indonesia: Community Property and Harta Bersama (2007) 64 Wash. & Lee L.Rev 1417, 1431-1433; Schuele, Community Property Law and the Politics of Married Women‘s Rights in Nineteenth-Century California (1994) 7 W. Legal Hist. 245, 262-264; Bassett, supra, § 1:3, pp. 7-8.)
When read as a whole and in this context, it seems evident that the 1870 Act was intended to afford married women some additional protection from the rigors of the law generally denying them control over their earnings and separate property. Under the authority of the 1870 Act, a wife whose husband was not physically living with her could undertake to support herself in her “own” residence. Unlike other married women, she could retain her earnings and accumulations as her separate property to maintain her separate residence. She was given the right to control and dispose of her separate property. She could sue and be sued without the joinder of her husband. Nothing in the 1870 Act indicates a different intent—to characterize a wife‘s earnings and accumulations as her separate property while she was still physically living with her husband in the marital home so long as she and her husband were sufficiently leading “separate lives.” To the contrary, the 1870 Act should be understood as a limited exception to the general rule of that time that the husband had full management and control over the marital and separate assets for the duration of the marriage. It appears the Legislature was concerned only with the special and limited circumstance of a wife who was living physically separate from her husband. Such a wife was likely to be incurring separate expenses associated with her separate residence and could
When the Legislature adopted the Civil Code in 1872, it enacted a version of section 2 of the 1870 Act as Civil Code former section 169 (former section 169). As enacted in 1872, former section 169 provided that “[t]he earnings and accumulations of the wife . . . , while she is living separate from her husband, are the separate property of the wife.” Again, nothing suggests that the 1872 Legislature contemplated that anything other than separate residences would qualify as “living separate,” i.e., that it intended the language to be construed differently from its common and ordinary meaning. In fact, the Legislature enacted at the same time section 5 of the Civil Code, which states that “[t]he provisions of this Code, so far as they are substantially the same as existing statutes or the common law, must be construed as continuations thereof, and not as new enactments.” Because former section 169 was substantially the same as section 2 of the 1870 Act, Civil Code section 5 directs that it be interpreted as continuing in effect the former law.
Moreover, it might reasonably be suggested that the lack of a statutory definition of the phrase is some indication itself that the Legislature intended the ordinary meaning to apply. Otherwise, the Legislature would likely hаve provided a specialized definition of the term. It did not.
And indeed, with respect to the language now found in
For example, in 1874, this court held that the 1870 Act did not apply when the evidence showed that the wife was only temporarily physically separated from her husband. We concluded that for the wife to be “‘living separate and apart’ within the meaning of the statute [t]here must have been an abandonment on the part of the husband or wife, or a separation which was intended to be final.” (Tobin v. Galvin (1874) 49 Cal. 34, 36-37.)
On the other hand, a husband and wife were living separate and apart within the meaning of Civil Code former section 169 where the husband left his wife, lived in a separate town, and determined during his absence that he would never resume marital relations with his wife, while his wife and children continued to live in the marital home, where the wife kept boarders and did
Without questioning whether separate residences was a necessary predicate, courts struggled to articulate a uniform standard for determining the date of separation in circumstances where the parties had moved into separate homes.
The court in Makeig v. United Security Bk. & T. Co. (1931) 112 Cal.App. 138 [296 P. 673] (Makeig), for example, summarized the then-existing law and concluded that “[l]iving separate and apart . . . as contemplated by . . . section 169, does not apply to a case where a man and wife are residing temporarily in different places due to economic or social reasons, but applies to a condition where the spouses have come to a parting of the ways and have no present intention of resuming the marital relations and taking up life together under the same roof.” (Id., at p. 143, italics added.) The court explained that “[u]nder modern conditions there is many a man living and working in one placе and his wife living and working in another, seeing one another only on week ends, sometimes not for months at a time, yet they are not living separate and apart within the meaning of the section, for there has been no marital rupture, and there is a present intention to live together as man and wife, and their status is only temporary, although it may happen that the condition might exist for some years.” (Id., at pp. 143-144; accord, Kerr v. Kerr (1960) 182 Cal.App.2d 12, 18 [5 Cal.Rptr. 630] [evidence showed that there was no final parting of the ways or intention not to resume marital relations under the same roof until such time as wife refused to permit husband‘s return to their home].)
Subsequent legislative developments suggest no intent to change the meaning of the phrase “living separate and apart.” In 1969, the Legislature repealed the family law portions of the Civil Code and replaced them with the Family Law Act. (Stats. 1969, ch. 1608, §§ 3, 6, 8, pp. 3313-3314.) Relevant to our discussion, Civil Code former section 169 was repealed and
We pause at this point to observe that by this time the Legislature had also used the phrase “living separate and apart” elsewhere in the Civil Code.
Returning to the predecessor statutes to
The post-1971 cases continued to refine the description of what was necessary for application of Civil Code former section 5118. But again, none of them questioned that a threshold requirement was separate residences. In In re Marriage of Baragry (1977) 73 Cal.App.3d 444 [140 Cal.Rptr. 779] (Baragry), the appellate court reversed a trial court‘s determination that the parties had separated on the date that the husband moved out of the marital home. (Id., at p. 449.) The reviewing court observed that the fact that husband and wife lived in separate residences was not determinative of whether they were “living separate and apart” for purposes of former section 5118. The court stated: “The question is whether the parties’ conduct evidences a complete and final break in the marital relationship.” (Baragry, supra, at p. 448Id., at pp. 447-448.)
Similarly, a reviewing court concluded the evidence supported a determination that a husband and his wife were not “living separate and apart” under Civil Code former section 5118 even though the wife had moved out of the marital home, in a case in which they continued their sexual relationship, sought marriage counseling and made multiple efforts at reconciliation. (In re Marriage of Marsden (1982) 130 Cal.App.3d 426, 432-435 [181 Cal.Rptr. 910].)
In In re Marriage of Umphrey (1990) 218 Cal.App.3d 647 [267 Cal.Rptr. 218] (Umphrey), another case in which the spouses were living in separate residences, the Court of Appeal cautioned that in determining the date of separation for purposes of Civil Code former section 5118, courts are “duty bound to consider all of the relevant evidence” regarding “‘whether the parties’
In 1989, the Legislature directed the Law Revision Commission to organize disparate statutes into a Family Code. (Family Code, 22 Cal. Law Revision Com. Rep., supra, at p. 7.) In 1992, the Legislature enacted the Family Code, operative January 1, 1994. In pertinent part, the language of former section 5118 was placed into
In 1994, the issue of the proper construction of the phrase “living separate and apart” was again before the court in In re Marriage of von der Nuell (1994) 23 Cal.App.4th 730 [28 Cal.Rptr.2d 447] (von der Nuell). The von der Nuell court concluded that the trial court erred in holding the date of separation of the parties was the date the husband moved out of the family residence even if the parties had, at that time, no intent to resume marital relations. (Id., at p. 732.) The court held that “legal separation requires not only a parting of the ways with no present intention of resuming marital relations, but also, more importantly, conduct evidencing a complete and final break in the marital relationship.” (Id., at p. 736, italics altered.) By requiring both subjective intent and demonstrated conduct, thе von der Nuell court essentially combined the requirements of Makeig, supra, 112 Cal.App. at page 143 and Baragry, supra, 73 Cal.App.3d at page 448. (In re Marriage of Hardin (1995) 38 Cal.App.4th 448, 451 [45 Cal.Rptr.2d 308] (Hardin) [making this observation].) Pointing to evidence of the parties’ attempts to reconcile, the von der Nuell court found that it was not until some years after the couple separated physically that their conduct evidenced the complete and final break in their marital relationship that was necessary to constitute “living separate and apart.” (See von der Nuell, supra, at pp. 732, 734-737.)
In Hardin, supra, 38 Cal.App.4th 448, the Court of Appeal likewise reversed a trial court‘s finding that the parties had separated on the date that the husband moved out of their residence. Like the court in von der Nuell, the Hardin court concluded that both subjective intent to end the marriage and objective conduct demonstrating such intent is necessary for legal separation. (Hardin, supra, 38 Cal.App.4th at p. 451.) “Simply stated, the date of separation occurs
In our view, the language in these cases—requiring consideration of “all of the relevant evidence” regarding “‘whether the parties’ conduct evidences a complete and final break in the marital relationship‘” (Umphrey, supra, 218 Cal.App.3d at p. 657, quoting Baragry, supra, 73 Cal.App.3d at p. 448), requiring both a lack of “present intention of resuming marital relations . . . [and] conduct evidencing a complete and final break in the marital relationship” (von der Nuell, supra, 23 Cal.App.4th at p. 736, italics omitted), and indicating that “[a]ll factors . . . are to be considered” in deciding the “ultimate question” of “whether either or both of the parties perceived the rift in their relationship as final” (Hardin, supra, 38 Cal.App.4th at pp. 452, 453, italics omitted)—must be understood in the context of their facts, which reflect that in each case the parties had moved into separate places of residence. These cases do not address, and therefore are not authority for a conclusion that “living separate and apart” was intended by the Legislature, originally or subsequently, to require, as wife argues, only demonstrated conduct reflecting a subjective intent to part ways with no plan of resuming the marital relationship, which might, but need not necessarily,
Moreover, as far as can be determined from the decisions, none of the cases that have construed
The issue of whether spouses must be residing in separate places in order to support a finding that they are “living separate and apart” under the statute was finally expressly considered in Norviel, supra, 102 Cal.App.4th 1152. Citing many of the cases that we have reviewed, the majority in Norviel recognized that “[d]ecisional law clearly establishes that pаrties may live apart and yet not be separated.” (Id., at p. 1162.) It concluded, however, that the reverse is not also true. The Norviel majority held that “living apart physically is an indispensable threshold requirement to separation, whether or not it is sufficient, by itself, to establish separation.” (Ibid.) The court found support for that conclusion in the statutory language, in the early decisions of this state, and in decisions from several other jurisdictions. (Id., at pp. 1162–1163.)5 The Norviel majority acknowledged that its “conclusion [did] not necessarily rule out the possibility of some spouses living apart
physically while still occupying the same dwelling,” but found that “this [was] not such a case.” (Norviel, supra, 102 Cal.App.4th at p. 1164.)
The dissent in Norviel found that substantial evidence supported the trial court‘s finding of a date of separation that was prior to husband moving out of the marital home because husband had clearly communicated his intent to end the marriage and the parties’ conduct thereafter was consistent with that intent. (Norviel, supra, 102 Cal.App.4th at pp. 1165-1167 (dis. opn. of Bamattre-Manoukian, J.).) According to the dissent, the majority‘s rule was unworkable, largely because it did not allow a couple who has reached the decision to end their marriage “a transition period to take the necessary steps to untangle the financial, legal and social ties incident to their decision.” (Id., at p. 1166 (dis. opn. of Bamattre-Manoukian, J.).) Without recognizing that the facts in Hardin, supra, 38 Cal.App.4th 448, reflected a separation of residences, the dissent stated that it would apply the test articulated by the Hardin court, which required consideration and evaluation of all of the evidence regarding “‘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.‘” (Norviel, supra, 102 Cal.App.4th at p. 1168 (dis. opn. of Bamattre-Manoukian, J.).)6
There appears to have been no reaction from the bench or bar subsequent to the Norviel decision contending that the Norviel majority had introduced a sudden new rule that was legislatively unintended and unworkable. No movement to promote the position of the Norviel dissent seems to have materialized. And, although we recognize that legislative inaction after a judicial decision does not necessarily imply legislative approval (County of Los Angeles v. Workers’ Comp. Appeals Bd. (1981) 30 Cal.3d 391, 404 [179 Cal.Rptr. 214, 637 P.2d 681]), it is also interesting to observe that the Legislature has had more than a decade to amend
From this survey of the history of
3. Public Policy Considerations
Wife contends that a bright-line rule, such as we articulate, will be overly simplistic, will lead to unjust, harsh results, and is, essentially, against current public policy considerations. She suggests that “[a] typical spouse in California, for example, may face further financial difficulties simply by being required to move out of the marital residence as a prerequisite to establishing the date of separation rather than intentionally and meaningfully living as roommates at the same residence, while taking the necessary steps to untangle any outstanding financial, legal and social ties incident to that spouse‘s decision to terminate the marriage.” She points out that there may be spouses who need to reside in the same residence as “roommates” because of foreclosure, job loss, or other economic factors. She suggests that others may wish to share the same residence in order to coparent their children. Finally, she speculates concerning the difficulty a spouse may encounter in obtaining a move-away order.
Wife‘s arguments are not without weight. However, it bears repeating that the issue before us is a question of interpretation of a community property statute. Our goal in construing statutory language is to give effect to the Legislature‘s intent and purpose. (Ceja v. Rudolph & Sletten, Inc., supra, 56 Cal.4th at p. 1119.) Here we find original legislative intent to use the language in its common and ordinary sense as requiring separate places of residence before the earnings and accumulations of a wife during marriage could be characterized as the wife‘s separate property. We understand the original legislative purpose of the stаtute to be the protection of and provision for a wife who was estranged and living physically separate from her husband. Thus, the statutory phrase “living separate and apart” required that the spouses be living in separate residences. We find no evidence of any subsequent change in the legislative intent to apply the commonly understood
The requirement of separate residences for purposes of
C. Conclusion
We conclude that living in separate residences “is an indispensable threshold requirement” (Norviel, supra, 102 Cal.App.4th at p. 1162) for a finding that spouses are “living separate and apart” for purposes of
III. DISPOSITION
The judgment of the Court of Appeal is reversed and the matter is remanded for proceedings consistent with our opinion.
Werdegar, J., Chin, J., Corrigan, J., Liu, J., Cuéllar, J., and Kruger, J., concurred.
The phrase “living separate and apart” first appeared in an uncodified 1870 statute titled “An Act to protect the rights of married women in certain cases.” (Stats. 1870, ch. 161, p. 226 (hereafter the 1870 Act).) This statute provided that “[t]he earnings and accumulations of the wife . . . , while the wife is living separate and apart from her husband, shall be the separate property of the wife.” (Id., § 2, p. 226.) The 1870 Act further provided that a wife “living separate and apart from her husband” had “sole and exclusive control [over] her separate property,” could “sue and be sued” without joinder of her husband, and could “avail herself of and be subject to all legal process in all actions, including actions concerning her real estate.” (Id., § 3, p. 226.)
Although the 1870 Act included no definition of “living separate and apart,” the Legislature clearly contemplated separate addresses for the husband and wife. As the court explains, “[s]ection 4 of the 1870 Act provided a procedure for a wife who was ‘living separate and apart’ from her husband to sell her real property without joining with her husband. To do so, the wife was requirеd to record a verified and acknowledged declaration ‘containing a description of such real estate, the name of her husband, her own place of residence, and [stating] that she is a married woman, living separate and apart from her husband.’ (1870 Act, Stats. 1870, ch. 161, § 4, p. 226, italics added.) The statutory requirement that the wife state in a declaration ‘her own’ place of residence that is ‘separate and apart from her husband’ strongly suggests that the 1870 Act was directed at a situation where the spouses had physically separated and the wife in fact had ‘her own’ residence.” (Maj. opn., ante, at p. 854.)
Today‘s opinion accurately describes the context and purpose of the 1870 Act. At the time, “married women had very limited power over their property.
“When read as a whole and in this context, it seems evident that the 1870 Act was intended to afford married women some additional protection from the rigors of the law generally denying them control over their earnings and separate property. Under the authority of the 1870 Act, a wife whose husband was not physically living with her could undertake to support herself in her ‘own’ residence. Unlike other married women, she could retain her earnings and accumulations as her separate property to maintain her separate residence. She was given the right to control and dispose of her separate property. . . . [T]he 1870 Act should be understood as a limited exception to the general rule of that time that the husband had full management and control over the marital and separate assets for the duration of the marriage. It appears the Legislature was concerned only with thе special and limited circumstance of a wife who was living physically separate from her husband. Such a wife was likely to be incurring separate expenses associated with her separate residence and could be anticipated to need the authority to separately maintain, control and manage such property. In such a situation, the 1870 Legislature determined an exception to the normal community property characterization of earnings and accumulations acquired during marriage and husband‘s control was appropriate.” (Maj. opn., ante, at pp. 855–856.)
The 1870 Act may be understood as a legislative response to cases like Lawrence v. Spear (1861) 17 Cal. 421. There a wife deserted by her husband engaged in a furniture business and sold furniture to the defendant. The husband sued the defendant to void the sale on the ground that he never consented to it. The court upheld the sale based on the legal fiction that the husband, having abandoned the wife, impliedly consented to her disposition of property for her own support. (Id. at pp. 423-424.) This fiction was necessary because the wife had no control over community property and no way to accumulate or cоntrol her own separate property, even though she was living separate and apart from her husband. Moreover, divorce did not appear to be a widely accessible option. (See Stevenson & Wolfers, Marriage and Divorce: Changes and their Driving Forces (Spring 2007) 21 J. Econ. Persp. 27, 29, figure 1 (Stevenson & Wolfers) [showing very low rate of divorce in
In 1971, the Legislature amended Civil Code former section 5118, the immediate predecessor of
Beyond addressing this specific concern, however, it is evident from context that the amended statute served a different purpose than the original 1870 Act. By 1971, the Legislature had long enacted reforms that gave married women control of their own earnings even though such earnings remained community property (Stats. 1951, ch. 1102, pp. 2860-2861), and by 1975, the Legislature had abandoned the male-controlled community property regime in favor of giving both spouses equal control (Stats. 1973, ch. 987, pp. 1897-1905; Stats. 1974, ch. 11, pp. 3590-3591). (See Prager, The Persistence of Separate Property Concepts in California‘s Community Property System, 1849–1975 (1976) 24 UCLA L.Rev. 1, 65-67, 73–74 & fn. 350.) Moreover, divorce had become more common by 1971 (Stevenson & Wolfers, supra, 21 J. Econ. Persp. at p. 29, figure 1), and two years earlier, California had become the first state in the nation to adopt a no-fault divorce law (Family Law Act, Stats. 1969, ch. 1608, § 8, p. 3314). These reforms occurred in the context of other legal developments promoting gender equality. (See Sail‘er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1 [95 Cal.Rptr. 329, 485 P.2d 529]; Reed v. Reed (1971) 404 U.S. 71 [30 L.Ed.2d 225, 92 S.Ct. 251].)
Thus, by 1971, an estranged wife living separate and apart from her husband had no need for a special statutory dispensation to earn and control separate property in order to provide for her own sustenance. She already controlled the portion of the community comprised of her own earnings, and she was soon to have equal control of all community property. Thus, the gender-neutral version of the statute enacted in 1971 no longer served the same protective purpose of the gender-specific 1870 Act. The modern statute is best understood to have a different purpose: Instead of addressing a nonexistent need to free one spouse from the other‘s exclusive control of
Today‘s opinion ascribes to the Legislature a continuing purpose of “protecting a vulnerable spouse” in construing the phrase “living separate and apart” to have the same meaning today as it did in 1870. (Maj. opn., ante, at p. 865.) But whereas a narrow construction of the phrase now “protect[s] the lower earning spouse” by “reduc[ing] the potential for manipulation of a more elastic standard by the higher earner” (ibid.), a narrow construction served no similar protective purpose in 1870. To the contrary, the Legislature in 1870 understood “living separate and apart” narrowly to mean separate addresses because it sought to create “a limited exception to the general rule of that time that the husband had full management and control over the marital and separate assets for the duration of the marriage.” (Id. at p. 867, italics added.) A broader understanding of “living separate and apart“—one that enabled an estranged wife to earn and control separate property without living at a separate address from her husband—would have been more protective of the vulnerable spouse in 1870. Yet it also would have meant greater property rights for married women at the expense of the male-controlled property regime, and there is no indication that the Legislature in 1870 had any interest in fundamentally changing that regime. The 1870 statute was protective because it created an exception to the male-dominated property regime, not because the exception it created was a narrow one.
By 1971, the Legislature had revised the archaic laws granting husbands exclusive control of marital assets, and the original motivation for construing “living separate and apart” narrowly had become obsolete. Now the gender-neutral statute, premised on the legal equality of husband and wife, simply recognizes the separateness of each spouse‘s earnings and accumulations at the point when the spouses have effectively but not formally ended the marriage, i.e., when the spouses are “living separate and apart.” Construing this phrase as it appears in the modern statute, I agree that its most natural meaning (maj. opn., ante, at p. 852) as well as practical considerations of clarity and administrability (id. at p. 864) suggest that whether spouses are “living separate and apart” turns not solely on the subjective intent of at least one spouse, but also on an objective manifestation of that intent by some form of physical separation. However, countervailing considerations of family economics and parenting (ibid.) suggest that the physical separation need not assume the precise form that the Legislature in 1870 envisioned, namely, separate addresses.
Werdegar, J., concurred.