Abood v. Abood

119 P.3d 980, 39 A.L.R. 6th 689, 2005 Alas. LEXIS 131, 2005 WL 2108321
CourtAlaska Supreme Court
DecidedSeptember 2, 2005
DocketS-11154/11173
StatusPublished
Cited by25 cases

This text of 119 P.3d 980 (Abood v. Abood) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Abood v. Abood, 119 P.3d 980, 39 A.L.R. 6th 689, 2005 Alas. LEXIS 131, 2005 WL 2108321 (Ala. 2005).

Opinions

OPINION

EASTAUGH, Justice.

I. INTRODUCTION

Patrick and Kimberly Abood both appeal aspects of the property division accompanying their divorce. We affirm. We conclude that the superior court did not clearly err in finding that settlement proceeds paid to Kimberly during the marriage for personal injuries she received about five years before the marriage were not transmuted into marital property. We also conclude that the superi- or court did not clearly err in finding that the marital home was transmuted into marital property even though Kimberly was not on the title and Patrick had purchased the home before they married. We conclude that the superior court did not clearly err in finding that the $174,814 increase in value of Patrick's street sweeping business was marital because it was the result of active appreciation. We conclude that the superior court did not abuse its discretion in assigning a recapture value of a marital vehicle Kimberly sold before trial, or by not dividing the value of a set of tires and rims from that vehicle. We also conclude that the court did not abuse its discretion in characterizing the 2001 federal income tax refund as Patrick's separate property.

II. FACTS AND PROCEEDINGS

Kimberly and Patrick married in 1994. They neither had nor adopted children. Kimberly and Patrick separated, and Patrick petitioned for divorce in 2002. At the time of trial, Kimberly was forty years old and one semester away from earning her second master's degree. Patrick was forty-six and owned and operated a successful street-sweeping business, Knik Sweeping. The superior court granted the divorce and distributed the property. Patrick and Kimberly both appeal aspects of the property division.

One dispute concerns personal injury settlement proceeds Kimberly received during the marriage to compensate her for injuries she received before the marriage. Kimberly had been the victim of a 1989 vehicular accident in which she sustained serious injuries that continue to plague her and may require further surgery. She sued General Motors for her injuries and settled with GM in 1999, receiving net proceeds of $1.6 million. This money was deposited into Patrick's business and personal checking account. Two months later the parties placed the $1.6 million, along with another $300,000 in marital funds, in five Merrill Lynch joint Cash Management Accounts (CMAs) with rights of survivorship. The superior court found that the proceeds from the settlement remained Kimberly's separate property, but that the $300,000 contribution was marital.

Another dispute concerns the superior court's characterization of the home as marital property. In 1998 Patrick bought the house that the couple shared before and during the marriage. Several improvements were made to the house before and during the marriage. The parties stipulated to its value but disputed whether it should be categorized as marital or as Patrick's separate property. The superior court found that the house had been transmuted into marital property.

The parties dispute the division of Patrick's business, Knik Sweeping. At the time of trial, Patrick operated Knik Sweeping as a sole proprietorship and used the business checking account as his all-purpose business [984]*984and personal account. Patrick purchased equipment during the marriage with funds from that checking account. The superior court found that the equipment acquired during the marriage was marital property and, alternatively, that the business's increase in value was marital property through active appreciation.

After the parties separated, Kimberly traded in her Mercedes-Benz for a new Jeep. Kimberly agrees that the Mercedes-Benz was marital property and that she received less than fair market value for it, but the parties dispute the amount to be recaptured. The superior court did not rule on Patrick's request that it charge Kimberly with the value of a set of Mercedes-Benz rims and tires that she traded for an extended warranty on the Jeep.

Patrick and Kimberly filed a joint tax return in 2001, the last full year of their marriage. After they made payments from marital funds, Patrick used his post-separation earnings to make a Simplified Employee Pension Plan (SEP) contribution for 2001, reducing the couple's tax liability for that year. The superior court found that the resulting tax refund was Patrick's separate property.

III. DISCUSSION

A. - Standard of Review

The equitable division of marital assets involves a three-step procedure. First, the superior court "must determine what specific property is available for distribution." 1 Next, it must find the value of this property.2 Finally, it must determine "how an allocation can be made most equitably." 3

The superior court has broad discretion in fashioning the property division in a divorcee case.4 We review the superior court's determination of the availability of property for distribution for abuse of discretion.5 We review the superior court's factual findings for clear error.6 Likewise, a finding that the parties intended to treat property as marital will be disturbed only if it is clearly erroneous.7 A finding of fact is clearly erroneous when the reviewing court is left with a definite and firm conviction that the trial court has made a mistake.8

B. The Product Liability Settlement Proceeds

Kimberly received $1.6 million in a 1999 settlement with General Motors following the 1989 vehicular accident in which she suffered serious, long-term injuries. The superior court found that the settlement funds remained Kimberly's separate property. Patrick argues that the settlement funds were transmuted into marital property when they were deposited into jointly owned brokerage accounts. Because we discern no clear error in the superior court's finding, we affirm.

Transmutation is the process by which one spouse's separate property becomes marital property, and "occurs when a married couple demonstrates an intent, by virtue of their words and actions during marriage, to treat one spouse's separate property as marital property."9 Commingling separate property with marital property does not automatically lead to a finding of transmutation.10 But placing property in joint title raises a presumption of transmutation.11 [985]*985Patrick argues that although the funds were initially Kimberly's separate property, a presumption of transmutation arose when she commingled the funds with marital property in Patrick's business checking account and then placed them into the jointly held Merrill Lynch CMAs.

Kimberly testified that the parties chose not to segregate the settlement proceeds from other funds within the CMAs for administrative convenience, to obtain better money managers, and to receive better brokerage rates. The rationale of better brokerage rates was disputed at trial, but there was evidence that the Aboods were able to obtain money management for the marital funds that would have been unavailable without combining them with Kimberly's settlement proceeds.12

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Cite This Page — Counsel Stack

Bluebook (online)
119 P.3d 980, 39 A.L.R. 6th 689, 2005 Alas. LEXIS 131, 2005 WL 2108321, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abood-v-abood-alaska-2005.