In Re Marriage of Peters

In this bifurcated marital dissolution proceeding, Joy M. Peters (Joy) 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. 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 [ 253…