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Abood v. Abood9/2/2005
tly in different circumstances, and where the property at issue is the marital home, different management and maintenance activities may demonstrate an intent to hold the property jointly.
Here, there was evidence of ongoing management and maintenance by both parties. Kimberly testified that "after the marriage we basically tore up the floor boards, tore down the ceilings, did everything from heetrock to Corian counters to new tile in the entryway, new carpeting, paint, new appliances, new lighting fixtures." She also testified that they put in a new shower, windows, and closed the sunroom windows, and that she participated in these improvements. Cleaning and maintenance were also her responsibility. Patrick testified that they made considerable improvements while living in the house and that marital improvements included carpet, paint, sheetrock, and landscaping. As noted above, if parties later marry, a superior court may consider periods of premarital cohabitation when dividing the home. Patrick's appellate characterization of these efforts as "periodic repairs and maintenance" is unconvincing. These projects amount to more than "minor efforts at remodeling," and are consistent with an intent to hold the home jointly.
In arguing that these improvements do not evince an intent to hold the home jointly, Patrick points to the lack of added value to the home above normal market appreciation. This focus would be more appropriate if Kimberly were relying on the doctrine of active appreciation. But especially for a residence, added value is not a requisite for finding an intent to hold the property jointly. Because the superior court could properly find that the house was used as the marital home and that Kimberly's participation in maintaining and managing the home demonstrated an intent to hold the property jointly, its finding that the home was transmuted into marital property was not clearly erroneous.
The concurrence argues that the court should adopt a rebuttable presumption that a separately titled house is transmuted from separate property to marital property when it is "used for a substantial period of time as the marital residence." It is not necessary to reach that issue in this case because we affirm the superior court's finding of transmutation. Moreover, the parties have not argued that we should or should not adopt such a presumption for Alaska and the superior court did not apply any such presumption. Because we have not had the benefit of briefing on the issue, the court declines to reach the issue in this case.
D. The Assets of Knik Sweeping
The superior court found that the equipment purchased during the marriage, valued at trial at $176,925, was marital property. Patrick argues that the equipment is not a "stand-alone" asset, but is "part and parcel" of Knik Sweeping. He therefore argues that it was error to characterize that portion of the equipment purchased during the marriage with marital funds as marital property. Kimberly argues that the superior court's finding rests on a straightforward reading of AS 25.24.160(a)(4). Because we affirm on the alternative grounds adopted by the superior court, with a virtually identical result, we do not address either party's arguments on this point.
The superior court alternatively found that the $174,814 increase in Knik Sweeping's value during the course of the marriage was marital property. The doctrine of active appreciation states that when the separate property of one spouse increases in value due to marital effort, the increase in value is marital property. Active appreciation requires findings that (1) the separate property appreciated during the marriage, (2) the parties made
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