In Re Marriage of Sparks

Opinion

THE COURT.

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Roy A. Sparks, Jr. (Roy), petitioner below, appeals an interlocutory judgment of dissolution of his marriage to Virginia M.

[355]

Sparks (Virginia). During the marriage the parties purchased a large unimproved parcel of land in Jamul, California, which all agree is community property of the marriage. Later a piece of the parcel was split off, and on it Virginia had built a single family residence, using funds in the sum of $46,668 acquired from a Mr. Breidenstein, the elderly husband of Virginia’s great aunt. Mr. Breidenstein lived with the Sparks for the last four years of his life, from 1970 to 1974, following his wife’s death, and Virginia took care of him with some help from Roy during that time. In 1974 shortly • before the parties here separated, Mr. Breidenstein gave Virginia his single family Escondido home in which all three parties and the Sparks children were living; some furniture in that house; and the sum of $61,929 cash, from which account came the funds to build the Jamul house. The trial court found the Jamul house was Virginia’s separate property, while the underlying real property was community property. At the time of construction, the land was worth $17,000 and the cost of construction of the house was the stated $46,668. At time of trial, the fair market value of the house and land were found to be $87,000. Applying the original ratio of value of land to value of house, the court found the value of the land to be $23,490, and in its order awarded the land and house to Virginia but gave Roy a credit for one-half the land value less $740 for other community property items awarded to him, or a total credit of $11,005.

Roy contends the trial court erred in finding the house to be separate property, because by analogy to the doctrine of fixtures and also because of the absence of a reimbursement agreement, Virginia’s expenditure of her separate funds to improve the community real property results as a matter of law in the house and land becoming community property. Roy relies on

In re Marriage of Smith,

79 Cal.App.3d 725 [145 Cal.Rptr. 205], in which wife used her separate funds to add a swimming pool to a community property residence and the entire improved residence was held community, on the theory of an intended gift to the community with no reimbursement agreement. Further, Roy alternately contends even if the house is separate property, Virginia is not entitled to apportionment of the present value, but rather is only entitled to get back the separate funds she invested in the amount of $46,668, or in other words, the appreciation of the property is a community asset.