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Abood v. Abood9/2/2005
Lynch CMAs were deposited in a single transaction from Patrick's checking account. The checking account was a mixed asset, containing both the settlement funds and marital proceeds from Knik Sweeping. The $1.9 million transferred from the checking account to the CMAs consisted of $1.6 million from Kimberly's settlement check from GM and $300,000 in marital funds already in the checking account. The funds in the Merrill Lynch CMAs were therefore readily traceable to primary separate and marital sources. The contribution ratio dictates that 16/19 of the CMA funds are Kimberly's separate property and 3/19 of the CMA funds are marital property.
Patrick argues in passing that $76,000 of the $300,000 transferred from the Knik Sweeping checking account to the Merrill Lynch CMAs is his separate property. The $76,000 was transferred into the Knik Sweeping checking account shortly before the $1.9 million was transferred to the Merrill Lynch CMAs. Patrick testified that the $76,000 was attributable to his separate property, but did not demonstrate that it was deposited in the CMAs or that he intended to maintain it as separate property after placing it under joint title. The superior court therefore did not clearly err in finding the entire $300,000 to be marital property.
Likewise, the superior court did not clearly err in finding that Kimberly did not intend to transmute the settlement proceeds into marital property. We therefore affirm its finding that the settlement funds remained Kimberly's separate property.
C. The Marital Home
Patrick bought the marital home before the marriage without any contribution from Kimberly, and made several improvements. The superior court found that the house was transmuted into marital property. Patrick argues that the superior court erred in finding that he intended to donate the home to the marriage.
We have enunciated four factors for determining whether real property is transmuted into marital property:
(1) the use of the property as the parties' personal residence, and (2) the ongoing maintenance and managing of the property by both parties, as well as (3) placing the title of the property in joint ownership and (4) using the credit of the non-titled owner to improve the property.
Kimberly does not contend that the house title was placed in joint ownership. Nor was her credit used to improve it. But the first factor is satisfied because the property was used as the couple's home both before and during the marriage. Furthermore, so long as the parties do marry, the trial court is free to consider the parties' entire relationship, including any period(s) of premarital cohabitation, in making its property division under AS 25.24.160(a)(4), so long as the court observes the distinction which AS 25.24.160(a)(4) draws between assets acquired prior to and during coverture.
Thus, as long as the trial court recognized that the home was originally Patrick's separate property and that the period of premarital cohabitation is relevant only to Patrick's intent to treat the property as marital, it could have properly considered this period of time in determining Patrick's intent to donate the home to the marriage.
We next consider the second factor. To establish ongoing management and maintenance, the non-owning spouse's "participation must be significant and evidence an intent to operate jointly." Participation in "limited maintenance and management tasks" is insufficient, as are minor efforts at remodeling. Past cases have held that transmutation occurs when the non-owning spouse takes an active role in the operation of the property as a business. But the test is applied differen
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