Monday, July 20, 2015

In Re Marriage of Davis (Cal. Supreme Ct. - July 20, 2015)

I hate today's opinion from the California Supreme Court.  Hate it.

It's not that I stridently disagree with the result.  In fact, I may well have agreed with it.  As did every single one of the justices on the Court.

But, to me, the way the opinion gets there exemplifies the worst sort of modern-day legal reasoning.

The basic deal is this:  When a married couple is together, their earnings are normally community property, but when they're living "separate and apart," their earnings are generally separate property.

What does it mean to be living "separate and apart?"

To me, the answer's not crystal clear.  On the one hand, if you're living in separate dwellings, that's clearly a case of living separate and apart.  Even if you're just living (as some people do) across the street.

But what if you're living in the guest house?  What if you're living in the garage?  What if you're living in the den?  What if you're sleeping on the couch?  At what point is your life sufficiently distinct from that of your spouse that you're not longer "together," but are instead "separate and apart"?

The particular case at issue is a decent example.  The couple here stopped having sex right after their son was born.  Nine years before Wife filed for divorce.  They stopped sharing a bedroom.  Wife did her own laundry (and that of the kids) but not Husband's.  They had their own bank accounts for years.  They had a ledger that separated their finances and spelled out what contributions each one had to make for various expenses.  In every way imaginable, they were simply "staying together for the kids" but living separate lives.  Even going so far as to take separate vehicles whenever they went to their kids' activities (e.g., plays and sporting events).

Think about that for a moment.  They lived in the same place, but when their son played a soccer game, they took different cars there and different cars back.

You can't get much "separate" than that.

But they nonetheless shared the same roof.  Literally.  So does that mean that they're categorically not living "separate and apart"?

Were I to answer this question, I'd think it a difficult one.  Togetherness is a continuum.  It may well be that for all practical purposes, Husband and Wife here were living entirely separate lives.

But I'd be worried about the consequences of drawing a line that focused on the particular mental state (and associated physical acts) of the spouses.  What if they lived in the same house but drove a single car?  What if they drove separate cars but only had one (joint) bank account?  What if they typically had different beds but shared a room when the in-laws were over?  Those would be incredibly tough calls.  And so I'd lean in favor of trying to draw a bright-line, predictable rule.  Maybe even one that focused on whether the couple was, indeed, sharing the same roof.  (Though I'd probably still want to separate out a spouse who lived in a guest house or garage or cabana or something like that, even if these things were on the same property or in fact shared the "same" roof.)

Why would I want to do that?  Because that's the best rule that I could come up with that made sense.  That people could plan around, that avoided transaction costs and uncertainty, that reflected the reality of modern circumstances, etc.

That's indeed the result -- very nearly, anyway -- that today's opinion articulates.  Minus the caveats I've articulated.

So why am I so disappointed with the opinion?

Because the way the California Supreme Court gets there is, in my view, terrible.

According to the Court, what it means to be "separate and apart" is fairly clear.  The language has a facially "plain meaning".  The Legislature had a keen sense of what that meant (in 1870!) and there are lots of cases (in the Court of Appeal!) that explain that it means living in an entirely separate house.  That may potentially "lead to unjust, harsh results, and is [] against current public policy considerations," the Court says, but that's allegedly problem for the Legislature, it says.  Not our problem.


I'd expect to see a similar form of analysis -- spread out over 25 pages -- from a moribund, hidebound state supreme court in, say, 1950.  But to see it articulated by the California Supreme Court in 2015 is depressing.

The statute's not crystal clear.  What it means to be "living" a life "separate and apart" from one's spouse is hardly capable of one simple meaning.  As the California Supreme Court expressly admits (citing, amongst other sources, Black's Law Dictionary).  Moreover, even if what it means to be "separate and apart" was clear 150 years ago, in 1870, the world has materially changed since then.  The universe has changed.  In the old days, women were nearly entirely subordinate to their spouses.  In lots of situations, they couldn't even sue or be sued in their own name.  Not only has the legal status of spouses materially changed, but so has the entire world surrounding this relationship.  Families have changed.  Relationships have changed.  The nature of housing has changed.  Why one gets (and stays) married has changed.

For better or worse, in the modern era, people find reasons to stay "together" with their spouses while living separate lives.  Often for the (perceived) benefit of their children.  Just take a simple glance at a variety of celebrities to see what I mean.  Ben Affleck and Jennifer Gardner, for example -- a couple so close that they have (in common parlance) but a single name ("Benifer") -- are separated but still live on the same property.  Gwen Paltrow and Chris Martin did the same thing.  Legions of other couples as well.  There's no doubt that there are reasons for this arrangement.  Even for spouses with practically infinite finances and flexibility.

And what's true for the rich and famous may be equally, if not more, true for the poor and overlooked.  A spouse might want to move out of the family home but can't afford it.  Maybe the family needs both incomes to pay the mortgage, lest the entire couple -- and their kids -- be thrown out on the street.  The Court says that's not its problem.  Too bad.  Even if you live entirely separate lives to the nth degree, if you live in the same household, even entirely out of necessity, you're stuck with a legal rule expressly designed for couples who have chosen to comingle their lives.  Tough for you.

Look, if the statute was crystal clear, maybe I'd be compelled to accept such a result.  But it's not.  Not by a longshot.  So public policy considerations matter.  To me, anyway.  Especially in a situation in which a statute was enacted in a universe radically dissimilar to the one we have today.

There's a reason we have courts.  There's a reason we have the common law.  There's a reason that courts can effectively take into account societal changes.  There's a reason why the legal world in which we live in 2015 isn't identical to the legal world in which we lived in 1950.  Or 1870.

But the California Supreme Court says:  Don't blame us.  Talk to the Legislature.

That response rings hollow to me.  Particularly in a case like this one.

It's depressing enough that today's opinion reads like an opinion of, oh, I don't know, a South Carolina court of appeal in 1950.  But it's even more depressing that this opinion is written by the Chief Justice.

This is not what you would read from, say, a Roger Traynor.  For good reason.

And I'd have expected even more from our current Chief Justice.  Which is perhaps why my reaction to today's opinion is so strong.

Justice Liu, joined by Justice Werdegar, writes a concurrence that reaches the same result as the majority but gets there in a way that's much more in line with my own views of legal analysis.  Especially in the modern era on a topic like this one.

I'll say this:  As I read the majority opinion, I kept thinking to myself:  "Who could possibly be writing this thing?"  The manner of analysis was so hidebound, so crimped, so constrained, it didn't read to me like any of the opinions on similar topics by any of the current justices on the Court.  Sure, I could see a Scalia or a Thomas writing the thing -- as long as you added lots of additional insults and vitriol.  But I couldn't think of any member of the California Supreme Court who would really go about analyzing this type of issue in such a limited,.deferential, "oh-there's-really-nothing-we-can-do" sort of way.

So you can imagine my horror when I reached the end of the opinion and discovered its author.

The worst part of this bad opinion, in my view, are the pages of pages and pages of discussion of nonbinding Court of Appeal precedent from decades ago.  Yeah.  That's what really matters.  It's not the consequences of today's decision on children or their parents -- consequences that get a back-of-the-hand treatment in a single paragraph akin to a "What, Me, Worry?" smile.  Nope.  What we really need to be talking about is how a precedent-constrained panel of three judges thought half a century ago about the nature of what it means for a couple to have separate lives.  In a world substantially dissimilar to the one we have now.

You're not living a common life just because you live in the same real estate parcel.  To pretend otherwise -- or that this issue is one solely for the Legislature, not for the wisdom of common law statutory interpretation -- is not what I'd hope to see from the California Supreme Court.

But it's what I saw today.