Filed 10/5/26 Marriage of Lee and Cho CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re the Marriage of JAE SUN LEE and D086524
HEE KYUNG CHO.
JAE SUN LEE,
(Super. Ct. No. 23FL013210C)
Respondent,
v.
HEE KYUNG CHO,
Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Leah M. Boucek, Judge. Affirmed and remanded with directions.
Hee Kyung Cho, in pro. per., for Appellant.
Elaine L. Heine for Respondent.
Hee Kyung Cho appeals the trial court’s judgment of dissolution,
challenging the court’s (1) factual findings on the date of separation,
(2) termination of jurisdiction over spousal support, and (3) alleged clerical
error in its breach of fiduciary duty finding. We conclude substantial
evidence supports the court’s date of separation finding. And the court’s
termination of spousal support jurisdiction was within the bounds of reason.
The breach of fiduciary duty finding, however, is unclear. We accordingly
affirm the judgment with respect to date of separation and spousal support
and remand for the court to clarify its ruling on breach of fiduciary duty.
I.
Cho married Jae Sun Lee in April 2022. Four months later, Cho
removed nearly half a million dollars from the parties’ joint checking account
without explanation. Consequently, Lee opened an individual account in
which he deposited his income.
On January 9, 2023, Lee filed for divorce. He withdrew the petition,
but filed another in July 2023 that he also withdrew. Both times, he did so
under pressure from Cho and her mother because Cho was in the process of
obtaining a “green card.” From January 2023 onward, Lee and Cho slept in
separate locked bedrooms of the marital residence.
In November 2023, Lee vacated the marital home and filed the instant
petition for divorce. After a trial, the court issued a judgment of dissolution
in April 2025. The court found the date of separation was January 9, 2023,
terminated its jurisdiction over spousal support effectively awarding Cho no
support, and appears to have determined Cho breached her fiduciary duty to
Lee by removing money from his accounts without his knowledge.
II.
A.
Cho first challenges the trial court’s finding that the date of separation
was January 9, 2023, as opposed to November 27, 2023, when Lee filed his
third petition for divorce. But we conclude the court’s finding is supported by
substantial evidence.
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“The date of separation is a factual issue established by a
preponderance of the evidence.” (In re Marriage of Lee & Lin (2019)
41 Cal.App.5th 698, 702.) We review a trial court’s factual findings under the
substantial evidence standard. Under this standard, “our review is limited to
a determination whether there is any substantial evidence, contradicted or
uncontradicted, that supports the finding.” (In re Marriage of Nakamoto &
Hsu (2022) 79 Cal.App.5th 457, 470 [cleaned up].) We assess the evidence
“‘in the light most favorable to the prevailing party and give that party the
benefit of every reasonable inference.’” (Ibid.) We do not “‘reweigh the
evidence, evaluate the credibility of witnesses, or resolve evidentiary
conflicts.’” (In re Caden C. (2021) 11 Cal.5th 614, 640.)
Marital separation requires at least one spouse to entertain “the
subjective intent to end the marriage and [engage in] objective conduct
demonstrating such intent.” (Lee, 41 Cal.App.5th at p. 701; see Fam. Code,
§ 70.) The inquiry requires examination of all relevant evidence during the
disputed time to determine when the break in the martial relationship
became final. (In re Marriage of Manfer (2006) 144 Cal.App.4th 925, 930.)
This objective test looks to the parties’ “‘words and actions’” to determine
their subjective intent. (Ibid.)
Here, the evidence established Lee subjectively wanted the marriage to
be finally over as of January 9, 2023 and conducted himself in a manner
reflective of that intent. Lee filed a petition for dissolution on that date.
Around this time, the parties began living on separate floors of the home, in
separate bedrooms, with locks on the doors. From this point forward, the
parties, according to Lee, no longer lived as husband and wife. Rather than
keep a joint bank account where both could access the funds, Lee testified he
held his income in a separate account and gave Cho $3,000 per month. And,
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while Lee withdrew the January and July 2023 petitions for divorce, his
testimony indicated that he did so not because he subjectively wanted to
reconcile, but rather because Cho and her mother pressured him to continue
the marriage due to Cho’s green card application. Though the parties filed a
joint tax return in 2023, that filing does not obviate the substantial evidence
of Lee’s desire for a final break in the marital relationship as of January 9,
2023 and congruous conduct demonstrating his intent to end the marriage.
On appeal, Cho catalogues her contrary testimony that the date of
separation was later, in November 2023. But the trial court expressly found
Lee more credible—a finding we may not disturb on appeal. (See Caden C.,
11 Cal.5th at p. 640.) And so long as substantial evidence supports a
conclusion, “it is of no consequence that the trial court[,] believing other
evidence, or drawing other reasonable inferences, might have reached a
contrary conclusion.” (Nakamoto, 79 Cal.App.5th at p. 473 [cleaned up].)
Accordingly, Cho has failed to demonstrate the trial court’s date of separation
finding was unsupported by substantial evidence.
B.
Cho maintains the trial court abused its discretion by awarding her
“zero” spousal support. We conclude otherwise.
Family Code “[s]ection 4330 authorizes the trial court to order a party
to pay spousal support in an amount, and for a period of time, that the court
determines is just and reasonable, based on the standard of living established
during the marriage.” (In re Marriage of Nelson (2006) 139 Cal.App.4th 1546,
1559.) While a court has “broad statutory discretion to fashion an
appropriate award of spousal support (or no award at all)” (In re Marriage of
Zucker (2022) 75 Cal.App.5th 1025, 1042), “it must exercise its discretion
along legal lines, taking into consideration” and weighing section 4320’s
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factors if applicable to the parties’ circumstances (Nelson, at p. 1559 [cleaned
up]).
Once the trial court considers the mandatory section 4320 factors, the
court’s permanent spousal support decision will not be “reversed on appeal
absent an abuse of that discretion.” (In re Marriage of Maher & Strawn
(2021) 63 Cal.App.5th 356, 363.) “An abuse of discretion occurs when it can
be said that no judge reasonably could have made the same order.” (Ibid.
[cleaned up].) We may not disturb the court’s factual findings respecting its
spousal support determination if there is substantial evidence to support
them. (See In re Marriage of Norvall (1987) 192 Cal.App.3d 1047, 1060.)
Here, the court found Cho’s earning capacity was not sufficient to
maintain the upper-middle class standard of living during the marriage. The
court recognized, however, that the marriage was of short duration (nine
months); Cho had not proven an inability to work; despite being highly
educated and possessing strong marketable skills, Cho had not followed the
court’s order to make efforts to obtain employment; Lee had paid all Cho’s
living expenses—including $11,000 in monthly bills associated with the
martial residence—for the 15 months since separation; and Cho was
maintaining a higher standard of living than Lee. The court determined Cho
would receive sufficient funds from the division of the community estate to
meet her needs and pay off her minimal credit card debt. This substantial
evidence supports the court’s spousal support determination.
Cho challenges the court’s finding that she had not proven an inability
to work, accusing the court of ignoring medical documentation that she could
not work due to her stage 4 bone cancer and her doctor’s testimony regarding
side effects she suffered from chemotherapy. The court, however, expressly
referenced this evidence but found it incredible because Cho had been
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untruthful in obtaining the doctor’s letter. We will not displace the court’s
credibility determinations on appeal. (See Caden C., 11 Cal.5th at p. 640.)
We also reject Cho’s related assertion that she has a contractual claim
for support based on the obligations of the I-864 affidavit, a document that is
executed in the immigration context. The affidavit was not entered into
evidence below or produced as part of the appellate record, and Lee
equivocated on whether he signed it. In re Marriage of Kumar (2017)
13 Cal.App.5th 1072, which obligates a sponsor to support a sponsored
immigrant at “an annual income that is not less than 125 percent of the
Federal poverty line,” thus does not assist Cho. (Id. at p. 1079 [cleaned up].)
Cho has therefore not shown she is entitled to support under the affidavit.
In short, Cho has not demonstrated the trial court’s decision
terminating support jurisdiction was outside the bounds of reason.
C.
Cho contends the trial court committed a clerical error by incorporating
into the judgment of dissolution its finding that Cho breached her fiduciary
duty by moving funds from Lee’s account without his knowledge.
Though the court sustained Cho’s objection to its finding regarding
breach of fiduciary duty, the court did not modify the proposed statement of
decision to omit this finding, even after Cho brought the alleged mistake to
the court’s attention. Instead, the finding was incorporated into the
judgment of dissolution, despite the court’s contrary statement in the
judgment that Cho’s objection was sustained. The court’s ruling in this
regard is accordingly unclear, as Lee admits. We thus remand for the court
to clarify its ruling and make any necessary corrections to the judgment of
dissolution.
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III.
We affirm the trial court’s judgment as to the date of separation and its
spousal support determination. We remand for the court to clarify its ruling
on breach of fiduciary duty consistent with this opinion. The parties shall
bear their own costs on appeal.
CASTILLO, J.
WE CONCUR:
DO, Acting P. J.
BUCHANAN, J.
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