von der Nuell v. von der Nuell

Appellant Judith A. von der Nuell (wife) appeals an interlocutory judgment following a bifurcated trial in a marital dissolution proceeding.

The issue presented is whether the trial court erred in holding the date of separation of the parties to be November 1,1987, the date respondent Achim von der Nuell (husband) moved out of the family residence.

The critical inquiry in determining the date of separation is “whether the parties’ conduct evidences a complete and final break in the marital relationship.” (I n re Marriage of Baragry (1977) 73 Cal.App.3d 444, 448 [ 140 Cal.Rptr. 779 ], italics added.) Therefore, even assuming on the date husband vacated the family home the parties had no “ ‘present intention of resuming marital relations’ ” {ibid.), their legal separation did not commence at that time. The parties attempted to reconcile, and it was not until some years later that their conduct evidenced a complete and final break in the marital relationship. The matter therefore is reversed and remanded.

Factual and Procedural Background

This case involves the dissolution of a marriage of nearly 28 years’ duration. There were no minor children at the time of filing.…