Marriage of Davis

• Publication year: 2015
• Author: Honorable Thomas Trent Lewis

Marriage of Davis

Honorable Thomas Trent Lewis

Judge Lewis serves in a long cause family law trial department in Los Angeles; he served as the Assistant Supervising Judge of the Family Law Division from 2011 to 2014. Judge Lewis practiced family law for over 28 years; and was designated a Certified Family Law Specialist in 1985; in 1987 he was inducted into the American Academy of Matrimonial Lawyers. In 2015, Judge Lewis was awarded the Los Angeles County Bar Association's highest award through the family law section, the Spencer Brandies Award, for outstanding contribution to the field of family law.

The California Supreme Court resolved the question of whether living separate and apart requires that parties no longer live under the same roof by its decision In Re Marriage of Davis (2016) 2015 WL 4394006 ((Cal.)) (Davis). The Davis court adopted a bright line test derived from the analysis of the legislative history concerning Family Code Section 771(a) dating back to the 1870s.

No doubt, the court granted review in part because of the differences between the Davis District Court of Appeal and the holding of In re Marriage of Norviel (2002) 102 Cal. App. 4^th 1152 (Norviel). Indeed, the holding in Davis carries forward the underlying rationale from Norviel, including references to what could be called an exceptional circumstances exception to the bright line test enunciated in Davis.

When Davis arrived at the California Supreme Court it drew the court's attention to the legislative history of various iterations in the Civil Code, and then into the Family Law Act, ending eventually in the Family Code. The Davis opinion turns largely on legislative intent. The court observed that the Legislature has never seen fit to change or refine the definition of the phrase "living separate and apart." The District Court decision adopted a "totality of the circumstances" test to determine the two key factors regarding separation:

An objective manifestation of an intention to end the marriage because it had reached a final breaking point coupled with a determination of whether the couple was living separate and apart.

The Norviel decision expressed an understandable constraint upon the District Court, forcing it to grapple with the phrase "living separate and apart." The majority opinion in Norviel is functionally mirrored in the holding in Davis. Because of the thoughtful dissent by one of the justices in Norviel, the majority opinion in Norviel adopted the bright line...