separation, paying the mortgage with his separate income. At the wife’s request, the trial
court found that the community’s interest in the property continued to increase
throughout those years, just as if community funds had been used to pay the mortgage
during that time, resulting in the community obtaining a 64.9 percent interest in the
property.
We hold that this was error. The Moore/Marsden rule applies only insofar as
community funds are used to build equity in an asset, a situation which often terminates,
as it did here, upon separation. If the husband obtained a benefit from the community
through living in the house beyond the parties’ separation date, the trial court may
account for this through so-called Watts charges, a different legal concept than the
Moore/Marsden rule. Watts charges equitably compensate the community for one
spouse’s use of a community-owned home. We hold, as a matter of first impression, that
Watts charges may be levied against a spouse for his or her post-separation occupation of
a property where the property is not entirely community property, but rather is treated as
2
partially community property due to the Moore/Marsden rule. We thus vacate the
judgment and remand to the trial court for the proper application of Moore/Marsden and
calculation of any Watts charges.
I. BACKGROUND
The sole issue in this appeal is how to allocate the value of a Rancho Cucamonga
residential property lived in by plaintiff and respondent Jodie E. Mohler and defendant
and appellant Greg Mohler during their marriage. (Because of their identical last names,
this opinion will use their first names for clarity.) The parties have no factual disputes
that matter here.
Greg bought the home, which the parties refer to as the Lomello property, for
$168,000 in February 1995, before he and Jodie married. His name remained on the title.
The couple wed in September 1998, and they lived at the Lomello property for over 12
years. During that time, they used $56,557 to pay principal on the property’s mortgage.
They separated on July 2, 2011. From then, Greg lived at the Lomello property and paid
its mortgage for over six years until the dissolution trial in late 2017. At the time of the
trial, the Lomello property was valued at $530,000.
II. DISCUSSION
A. The Moore/Marsden Calculation
Under California’s community property laws, property that a spouse acquires
before the marriage, or during the marriage by way of gift or inheritance, is that spouse’s
separate property. (Cal. Const., art. I, § 21; Fam. Code § 770.) On the other hand,
3
property acquired during the marriage due to the time, labor, or skill of a spouse is
community property in which the spouses have an equal interest. (Fam. Code § 760.)
Upon dissolution, community property is divided equally between spouses, and separate
property is awarded to only the owner. (Fam. Code §§ 770, 2550.)
When one spouse enters the marriage owning the home in which the spouses are to
live, it is not self-evident how to characterize the appreciation on that separate real
property during the marriage, when, as is common, the marital community uses its funds
to pay the loan on that separate asset. In In re Marriage of Moore (1980) 28 Cal.3d 366,
371-372 (Moore), our Supreme Court held that where community funds are used to pay
down the principal owed on a loan on property purchased by one spouse before marriage,
the community obtains “‘a pro tanto community property interest in such property in the
ratio that the payments on the purchase price with community funds bear to the payments
made with separate funds.’ [Citations.]” Thus, as the community makes payments during
the marriage that reduce the principal owed on the separate property, the community
acquires a beneficial interest in that property, even if title remains in the name of the
original owner. 1
1 We use the term “beneficial interest” to describe the community’s Moore/Marsden interest in property that is titled in an individual spousal owner, as all we need decide here is that the community gains at least an equitable interest that is recognized at the time, if any, that a family law court engages in equitable division of the spouses’ estates. Moore, however, could be read to indicate that the community interest is in fact a legal one. (Moore, supra, 28 Cal.3d at p. 371, fn. 1 [“Although the trial court designated the community’s interest as an ‘equitable charge on/right,’ it is clear under California law that the interest is properly characterized as a community property interest in the house. [Citations.]”) A consequence of that reading might be that a home with a 4
Moore chose a specific way to determine the community’s increasing interest in
the property. It used the original purchase price as a reference point for a 100 percent
interest in the property. As a marriage begins, Moore attributes the entire purchase-price
value of the property to the separate owner. (Moore, supra, 28 Cal.3d at pp. 373-374.)
After that point, the community’s interest in the property is determined by “dividing the
amount by which community property payments reduced the principal by the purchase
price.” (Id. at p. 374.) Thus, if the original purchase price of a property were $100,000,
the community would obtain a constructive one percent interest in it for each $1,000 in
principal on the loan that community assets paid down. The owning spouse’s separate
ownership share would be reduced accordingly. 2
In re Marriage of Marsden (1982) 130 Cal.App.3d 426, 437 (Marsden)
supplemented Moore’s calculation by establishing that the owner of the separate property
should be awarded the pre-marriage appreciation in the property’s value. Nevertheless,
community interest could not be sold without the consent of the community. By our terminology, we do not mean to address this issue, which is not before us. 2 In selecting a way to calculate the fraction of ownership attributable to the community, Moore made important determinations as to both the denominator and the numerator. The denominator for the calculation is the purchase price and not either (a) the amount of out-of-pocket funds that the purchaser used, exclusive of the loan, or (b) the fair market value of the property at the time of marriage. The numerator for the calculation is the amount by which the community funds reduced the principal owed on the loan, that is, created equity in the property. Funds used for interest, taxes, or maintenance are inapposite to the calculation. As the converse of Moore’s decision to limit the community’s compensation to only payments that built equity in a property and to not credit expenses incurred during its use, a spouse who separately owns a home is not compensated under Moore/Marsden for the rental value of the property by receiving a credit for any benefit the community received by living in the home. (In re Marriage of Nelson (2006) 139 Cal.App.4th 1546, 1555.) 5
Marsden did not incorporate the pre-marital appreciation into Moore’s calculation of the
respective separate and community interests in the property; that calculation remains tied
by Moore to the amount of equity that the community has contributed to the property, as
a percentage of the original purchase price. (Marsden, supra, 130 Cal.App.3d at pp. 437-
439.) Thus, as community funds are used to pay principal on the mortgage, the
community acquires a constructive or beneficial equity interest in the property, but the
appreciation prior to marriage remains with the separate property owner. This ultimately
means that the community’s share in the value of the property at the end of a marriage
can be determined by adding together (a) the amount of capital appreciation during the
marriage that is attributable to community funds under the Moore formula and (b) the
principal payments made by the community funds, which are returned to the community.
(In re Marriage of Frick (1986) 181 Cal.App.3d 997, 1008.)
Later cases have addressed more complicated aspects of the Moore/Marsden rule.
For example, the community is entitled to an interest in the property when the spouses
refinance a separate property and pay off the original mortgage with a new loan (In re
Marriage of Branco (1996) 47 Cal.App.4th 1621, 1629), and the community is entitled to
reimbursement when its funds are used for capital improvements to a separate property
(In re Marriage of Allen (2002) 96 Cal.App.4th 497, 501). This case concerns only a
straightforward Moore/Marsden calculation, where the community’s interest in the
Lomello property can be calculated simply by dividing the amount of principal paid
during the marriage by the original purchase price.
6
B. The Moore/Marsden Calculation Should Have Ended When the Community Payments Stopped at Separation
In this case, each party calculated that, under Moore, the community obtained a
33.66 percent interest in the Lomello property through the time that the Mohlers
separated. This was the figure that Greg asserted at trial was attributable to the
community as well as one that Jodie provided in her pretrial brief and pretrial expert’s
report. In his appellate briefing, Greg again adopts that figure, explaining that it is based
on Jodie’s expert’s calculation that the community reduced the loan principal by $56,557
during marriage divided by the property’s $168,000 purchase price. 3 Jodie does not
contest that this calculation accurately reflects the community interest in the Lomello
property as of the spouses’ separation.
The effect of this Moore/Marsden calculation is as follows. During the marriage,
the value of the Lomello property increased from $185,000 to $530,000, for an equity
gain of $345,000. With a 33.66 percent interest in that appreciation ($116,127) added to
its $56,557 contribution to the equity, the community would have a $172,684 interest in
the property, with the remainder Greg’s separate property.
At trial, however, Jodie abandoned her pretrial view and advanced an argument
that would nearly double the community’s interest in the Lomello property. She argued
that the Moore/Marsden calculation is affected by the fact that Greg had obtained the
benefit of living in the property for over six years post-separation. By including in the
3 Due to the rounding of numbers, there are some insignificant differences in the numbers used at various places of the record and the briefing. 7
calculation the equity accumulated by payments that Greg made during this period that
reduced the mortgage principal by an additional $52,482, Jodie’s argument led to the
community obtaining a 64.9 percent interest in the property, rather than the 33.66 percent
interest at the time of separation. The trial court accepted this argument. Based on its
64.9 percent interest, the trial court awarded the community $223,905 of the $345,000
appreciation during the marriage. As well, the trial court returned to community not only
the $56,557 in principal payments made during the marriage, but also the $52,482 in
principal paid post-separation, bringing the community’s total interest in the property to
$332,944. This community share in the property was well above the $172,684 warranted
under the straightforward Moore/Marsden calculation discussed above.
Jodie and the trial court were correct to value the property as of the trial date.
When the trial court determines the value of the community’s property interest in a
residence, the property is to be valued as of the date of trial, not as of the date of the
parties’ separation. (Fam. Code § 2552, subd. (a); In re Marriage of Sherman (2005) 133
Cal.App.4th 795, 800.) Prior to a dissolution trial, a party may provide notice that, for
equitable reasons, it seeks to value the property as of an earlier date that is after the
separation (Fam. Code § 2252, subd. (b)), but neither Greg nor Jodie sought the use of an
earlier date here.
Jodie and the trial court, however, were incorrect to use the Moore/Marsden
calculation to increase the community’s beneficial ownership interest due to payments,
made from Greg’s separate property, beyond the date of separation.
8
As a legal matter, this extension of Moore/Marsden was unwarranted by the
method by which the community interest is determined under the caselaw.
Moore/Marsden is founded on a conception that community property is being “invested”
in the separate property by creating equity in it. Thus, during a marriage, only the portion
of community assets that is used to pay off loan principal is relevant to establishing the
community interest in the property. After separation, however, the earnings and
accumulations of a spouse are that spouse’s separate property. (Fam. Code § 771, subd.
(a).) Just as Greg’s pre-marriage reduction of loan principal did not increase the
community’s interest under Moore/Marsden, neither do his post-separation payments
from his separate property.
There appears to be no dispute in this case that, after separation, the $52,482 in
principal that Greg paid came from his separate property (as did funds he used for
interest, taxes, and maintenance). The community’s equity interest in the Lomello
property thus no longer increased under the Moore/Marsden approach once community
assets were no longer paying down the property’s principal. That is, the 33.66 percent
community interest in the property did not increase after separation.
Using Moore/Marsden to compensate the community for Greg’s post-separation
occupation of the Lomello property also is improper as a practical matter. Extending the
formula here led to a transfer of funds from Greg that is not conceptually connected to the
reimbursement the community is entitled to from his use.
9
Consider what reimbursement to the community is warranted. If Greg had not
lived at the property post-separation and the property had been rented, the community
should be credited with a 33.66 percent share of the amount of profit from the rental, i.e,
its proportional share of the amount by which the rental value exceeded the expenses to
maintain and operate the property. That is, for example, if the property could be rented at
a $1000 monthly profit, then the community would receive about $337 for each month of
the rental. That would be the amount which the community would be deprived by Greg’s
living there. That monthly rental profit value could be minimal or substantial depending
upon the property’s post-separation rental value and carrying costs.
Moore/Marsden, however, has nothing to do with that calculation of rental profit.
It does not depend on the rental value of the property or its carrying costs. Rather,
Moore/Marsden brings a benefit to the community depending upon (a) how much
principal is paid off with each mortgage payment (i.e., how much the community
“invests” in the property), and (b) how much the property has appreciated over the entire
course of the marriage and separation.
In applying the Moore/Marsden formula here, the trial court effectively awarded
the community an additional equity interest for each month that Greg occupied the
property based on the amount of principal Greg paid, which has nothing to do with the
property’s post-separation rental value to the community. Further, that equity interest
brought a return based on the amount that the property had appreciated during the
approximately nineteen years of marriage and separation, which also bears no relation to
10
the rental value to the community. The trial court thus erred in increasing the
community’s interest in the property under Moore/Marsden to compensate the
community for Greg’s occupying the property post-separation.
Jodie cites In re Marriage of Priddis (1982) 132 Cal.App.3d 349, 355 for the
proposition that when an asset increases in value from inflation or market forces,
“generally it is fair that both parties share in that increased value.” Thus, she believes
that increasing the community interest post-separation through the Moore/Marsden
calculation was the equitable way for her to share in the Lomello property’s value
increase. Even under our ruling, however, the community (and thus Jodie) does share in
a post-separation, pre-trial increase in the property’s value. The community had a
beneficial 33.66 percent interest in the property at the time of separation, and it shares
proportionally in the equity increase in the property through the time of trial. Thus, the
community paid $56,557 in principal during marriage, yet should receive a return of not
just that principal payment, but also its proportional share ($116,127) of the increase in
equity ($345,000) beginning on the marriage date, regardless of the extent to which that
equity increase occurred during the marriage or during the separation. Had the trial
occurred immediately upon separation, the community’s recovery would have been
limited to 33.66 percent of the equity increase to that point only. For this reason, the
community does “share in [the] increased value” through the couple’s trial. (Ibid.)
11
C. A Court May Impose Watts Charges When the Community Has a Partial Beneficial Interest in a Property
While she was incorrect to extend the Moore/Marsden rule, Jodie nevertheless was
correct that the community may be compensated for its loss of rental income due to
Greg’s occupation of the Lomello property for over six years after the couple separated.
In our view, that compensation should occur through so-called Watts charges rather than
through Moore/Marsden. (See In re Marriage of Watts (1985) 171 Cal.App.3d 366, 373-
374 (Watts).)
Family law courts are courts of equity. (In re Marriage of Boswell (2014) 225
Cal.App.4th 1172, 1174.) Watts charges are used to compensate the community when
one spouse has the exclusive use of a community asset, most often the couple’s residence,
between separation and trial. The spouse using the property is charged ‘“for the
reasonable value of that use.”’ (In re Marriage of Falcone & Fyke (2012) 203
Cal.App.4th 964, 978.) 4
The trial court has discretion, based on equitable considerations, as to whether to
impose Watts charges and in what amount. (See In re Marriage of Oliverez (2019) 33
Cal.App.5th 298, 318 [Epstein credits]; In re Marriage of Dellaria & Blickman-Dellaria
(2009) 172 Cal.App.4th 196, 201 [review of orders dividing marital property].) Family
Code section 2555, however, permits us to revise the disposition of the community estate
4 The reverse of the Watts charge concept is the “Epstein credit,” whereby a spouse who uses his or her separate property to pay a community obligation may seek reimbursement from the community estate. (See In re Marriage of Epstein (1979) 24 Cal.3d 76, 84-85.) “Watts charges” collect from a spouse for use of property; “Epstein credits” repay the spouse for a payment. 12
“in all particulars, including those which are stated to be in the discretion of the court.”
We conclude that ordering a revision is warranted here, where the trial court used an
incorrect vehicle (Moore/Marsden) to account for a fact (post-separation occupation of
the property) that could properly be the basis of Watts charges.
Watts charges typically have been applied where the community owns the entire
property, for example, because it was purchased with community funds during the
marriage. In such a case, the court considers the “reasonable rental value” of the home as
a guidepost in attempting to ensure that the “net fiscal impact” of a spouse’s occupation
of the home is reflected in the division of the couples’ property. (In re Marriage of
Jeffries (1991) 228 Cal.App.3d 548, 554-555.)
In trial court, Greg suggested using Watts rather than Moore/Marsden. He argued
that Jodie was “mixing Moore[/]Marsden with Watts” by increasing the community share
of the Lomello property based on his post-separation occupation of it. He argued that
“Moore[/]Marsden, it stops at the date of separation . . . . It’s Watts [charges] when the
opposing side . . . is allowed to get some sort of rental value. . . .” Jodie’s counsel
responded that he has “never done a Watts when you have a separate [property].” Greg’s
argument was correct.
We conclude that Watts charges may be applied where, as here, the community
does not own the property outright but instead maintains a beneficial partial interest in the
property due to a Moore/Marsden calculation. The concept is precisely the same as
Watts charges when the community maintains title to the home, but with the amount
13
charged discounted for the fact that the community maintains only a partial interest in the
property for purposes of dividing the property upon a marital dissolution.
We will leave the precise Watts calculation to the trial court in this case, as the
parties have not briefed on appeal their arguments as to the specific calculation, and they
may not have fully presented their evidence and arguments to the trial court. The trial
court should start the Watts calculation by determining the overall profit from rental that
would have obtained during the period in which Greg occupied the Lomello property.
This may be done by subtracting from the expected monthly rent the amount necessary
for expenses, including mortgage, taxes, homeowner’s insurance, maintenance, and
repair. The court then should use 33.66 percent of this amount of net rental profit as the
amount that Greg is charged by the community for his use of the property between
separation and trial. In the final disposition of assets, of course, Greg will effectively
receive half of the community estate, so the Watts charges will not go entirely to Jodie.
Nevertheless, the calculation we describe here, along with the re-calculation of the
Moore/Marsden result, guides the division of assets between Greg and the community. 5
5 We do not mean to constrain the trial court’s proper discretion in equitably applying Watts charges upon considering factors not articulated here, but only to articulate the basic approach for the trial court. 14
III. DISPOSITION
The trial court’s order is VACATED and the case is REMANDED for further
proceedings not inconsistent with this opinion. Greg is awarded his costs on appeal.
CERTIFIED FOR PUBLICATION
RAPHAEL J.
We concur:
CODRINGTON Acting P. J.
FIELDS J.
15
AI Brief
AI-generated · verify before citing
Holding. The Moore/Marsden rule for apportioning community interest in separate property terminates at the date of separation, and a trial court cannot extend it to account for post-separation mortgage payments. Instead, a court may equitably compensate the community for a spouse's post-separation use of such property through Watts charges, even when the community holds only a partial beneficial interest.
Issues
Does the Moore/Marsden formula for calculating community interest in separate property continue to accrue based on post-separation mortgage payments made with separate funds?
May a trial court impose Watts charges for a spouse's post-separation occupation of a residence in which the community holds only a partial beneficial interest under Moore/Marsden?
Disposition. vacated and remanded
Quotations verified verbatim against the opinion
“The Moore/Marsden rule applies only insofar as community funds are used to build equity in an asset, a situation which often terminates, as it did here, upon separation.”