Norviel

This appeal arises from bifurcated proceedings in a marital dissolution action. The question before us is whether the trial court erred in determining the parties’ date of separation. In particular, we must consider what it means for spouses to live separate and apart.

The trial court determined that the parties separated in June 1998, when the husband stated his intention to end the marriage. The wife challenges that determination. She asserts that there was no conduct demonstrating a final break in the marriage until many weeks later. Among other things, she *1155 cites undisputed evidence that the parties continued to reside together until August 1998 and that they continued to maintain joint finances until September 1998.

We conclude that the trial court incorrectly applied the law in this case. We therefore reverse the order determining the date of separation.

Facts

Vernon A. Norviel (Husband), petitioner below, is the respondent here. Carmencita J. Norviel (Wife), respondent below, is the appellant here.

Husband and Wife were married in 1983. They have two children: a son bom in 1986, and a daughter bom in 1994.

The marriage had “always been somewhat…

The majority concludes that “the trial court incorrectly applied the law in this case” (maj. opn., ante, at p. 1155) and that “there is no support in the record for the trial court’s finding that the parties separated on June 28, 1998.” (Maj. opn., ante, at p. 1164.) In reaching this conclusion, the majority formulates a new standard. Although acknowledging, at least in concept, that spouses can be “living separate and apart,” within the meaning of Family Code section 771, subdivision (a), while occupying the same residence, the majority finds that in such a case the evidence must show “unambiguous, objectively ascertainable conduct amounting to a physical separation under the same roof.” The majority finds that the parties’ conduct here did not meet this standard and that the trial court therefore erred in selecting a date of separation prior to the time that husband physically moved out of the family home.

I respectfully disagree. I believe that this court must defer to the trial court’s determination of the date of separation if the trial court’s findings are supported by substantial evidence. (In re Marriage of Marsden (1982) 130 Cal.App.3d 426, 435 [ 181 Cal.Rptr. 910 ].)…