The appellate angle in Marriage of Davis

Family law attorneys are buzzing this week about Monday’s unanimous Supreme Court decision in Marriage of Davis, case no. S215050 (July 20, 2015). The Metropolitan News-Enterprise summed up the holding this way: “A married person cannot be considered separated, and thus permitted to keep his or her earnings as separate property, while continuing to live with his or her spouse[.]” The court itself referred to its ruling as a “bright-line” rule.

Not so fast, folks. My friend Claudia Ribet has a column in today’s Daily Journal (link requires subscription) discussing the subtleties in the decision and concurring opinion, concluding that it may not even reduce litigation over the “separate and apart” issue very much.

I’ll leave that debate to the family law attorneys for now.

I, of course, am interested in what this decision teaches us about approaching appeals. The obvious lesson is this: an appellant needs to carefully consider the standard of review and, if at all possible, frame an issue on appeal subject to de novo review, in which the appellate court reviews the ruling without any deference to the trial court’s ruling or rationale, as if the case was being decided anew.

As the Supreme Court notes at the outset of its analysis, the date of separation “is normally a factual issue to be reviewed for substantial evidence.” However, the appellant raises an issue of statutory interpretation of Family Code section 771, subdivision(a), thus invoking the more favorable de novo standard of review, and prevails.

In this case, it probably was not too hard for appellant to realize how to latch onto an issue subject to de novo review, since the trial court’s decision went against a court of appeal opinion establishing separate residences a “threshold requirement” of living “separate and apart” for purposes of the statute. Voilà! De novo review of statutory interpretation.

It’s not always that easy. For more difficult cases, see this post and this one.