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In re Marriage Dawe3/28/2003
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
In this marital dissolution proceeding, George Dawe (George) appeals from a judgment following a trial of reserved issues including the date of George's separation from Monica Dawe (Monica). George contends the trial court erred in determining the parties' date of separation because it ignored relevant evidence and did not make necessary factual findings on disputed material issues. Based on this error, George seeks reversal of the court's ruling that the parties separated on July 23, 1999, and its community property characterization of an annuity George received as attorney fees. We agree the court erred under Code of Civil Procedure section 634 by failing to make findings on certain disputed material issues and facts. Because as a consequence we may not imply findings favorable to the judgment on those issues, we are compelled to reverse the judgment for reconsideration of the parties' date of separation.
FACTUAL AND PROCEDURAL BACKGROUND
George and Monica married on September 19, 1987. They had no children during the marriage, though George badly wanted to have a family. In July 1997, during a time when George was under a great deal of financial stress and Monica's sisters were living with them, Monica and her sisters moved out of the house. Monica had just returned from a vacation with her sister and a friend, and George told her he wanted a break. Monica took some clothes, toiletries, other necessities and her dog. After July 1997, she and George never resumed a sexual relationship. Although Halloween was the most important holiday for George and Monica and they had always thrown a large party on that night, after July 1997 they no longer shared that holiday together.
Between July 1997 and December 1997, the parties saw very little of each other. In November 1997, while George was working as an independent consultant to attorney Duncan Koler, Koler's law firm was retained to represent the plaintiff in an personal injury lawsuit entitled Boykin v. Walmart (Boykin). George worked on the case from its outset. The Boykin lawsuit settled in March 1999, resulting in the creation of a trust out of which George received a monthly annuity payment of $5,556 for his lifetime.
In July 1999, Monica filed a petition for dissolution of their marriage, identifying July 23, 1999, as the date of separation. George responded and asserted the parties separated two years earlier on July 21, 1997, when Monica moved out of their house. In March 2000, the trial court entered a judgment of dissolution terminating the parties' marital status and reserving jurisdiction over other issues including the division of community property, spousal support and attorney fees.
The issue of George and Monica's date of separation was tried in December 2000. The court heard testimony from Monica and George, Monica's father and sisters, a marriage counselor and several friends and co-workers of the parties. At trial, the nature and character of the parties' contacts and communications between December 1997 to July 1999 was heavily disputed.
Monica testified that when she moved out of the house in July 1997, she did not consider her marriage over. Nevertheless, thereafter, George and Monica closed their joint bank account. In December 1997, George told her he was allowing another woman, Heather, to store her belongings a
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