In re Marriage of Dekker

In In re Marriage of Dekker (1993) 17 Cal.App.4th 842, the parties capitalized a business using $1,000 of the wife's separate property. The husband devoted 100 percent of his time to managing and advancing the business. By the time of marital dissolution, the business was worth $927,000. Rejecting wife's claim that the increase should be deemed her separate property, the trial court, affirmed by the Court of Appeal, equitably apportioned the value so that wife received a 10 percent return on her separate property investment, totaling $1,934, while the remaining $925,066 was apportioned to community property, on account of husband's efforts. In so ruling, the court expressly applied the business apportionment method of Pereira v. Pereira (1909) 156 Cal. 1, which allows a fair return on separate property investment, and allocates the remainder as community property arising from spousal efforts. The methodology of Pereira, supra, 157 Cal. 1, generally applies "where business profits are principally attributed to efforts of the community." (Dekker, supra, 17 Cal.App.4th at p. 853.) On the other hand, where "the business profits accrued are attributed to the character of the separate asset" (ibid.), courts apply the approach of Van Camp v. Van Camp (1921) 53 Cal.App. 17, under which the reasonable value of community services is determined and allocated, and the remaining profit is allotted to the separate property. The appellate court, following the California Supreme Court's decision in Pereira v. Pereira (1909) 156 Cal. 1, 7, held "where more than minimal community effort combines with a separate capital investment to increase the value of the separate investment, the court must determine the amount of the increase attributable to the capital, and the amount attributable to community effort." In Dekker, the husband claimed a community interest in a corporation that was formed during the marriage using $1,000 of the wife's separate property. (Dekker, supra, at pp. 846-847.) At the time of the dissolution of the marriage, the corporation's value had increased to almost $1 million due to the husband's "effort, expertise and contacts." (Id. at pp. 849, 846.) Applying the doctrine of equitable apportionment, the appellate court rejected the wife's argument that the community was not entitled to reimbursement for the husband's efforts which had increased the value of the corporation. (Id. at pp. 850-852.) The appellate court in Dekker, supra, 17 Cal.App.4th at pages 850-851, explained: "Property acquired prior to marriage is separate, while property acquired during the marriage is presumed community property. Income from separate property is separate, the intrinsic increase of separate property is separate, but the fruits of the community's expenditures of time, talent, and labor are community property. Indeed, the basic concept of community property is that marriage is a partnership where spouses devote their particular talents, energies, and resources to their common good. Acquisitions and gains which are directly or indirectly attributable to community expenditures of labor and resources are shared equally by the community. Where community efforts increase the value of a separate property business, it becomes necessary to quantify the contributions of the separate capital and community effort to the increase. It is well settled in California that income produced by an asset takes on the character of the asset from which it flows. Thus, rents, issues and profits are community property if derived from community assets, and separate property if derived from separate assets. " The Dekker court continued: "In Pereira v. Pereira, supra, 156 Cal. at page 7, the California Supreme Court first announced the rule that where a husband owns a separate property business and devotes his efforts to the enterprise, there must be an apportionment of the profits. Viewing the language cited in Pereira in light of California's partnership model of marriage, the necessity of apportionment arises when, during marriage, more than minimal community effort is devoted to a separate property business. The community is entitled to the increase in profits attributable to community endeavor. Accordingly, courts must apportion profits derived from community effort to the community, and profits derived from separate capital are apportioned to separate property." (Dekker, supra, 17 Cal.App.4th at pp. 851-852.) The Dekker court concluded: "A fair reading of Pereira supports the view that where more than minimal community effort combines with a separate capital investment to increase the value of the separate investment, the court must determine the amount of the increase attributable to the capital, and the amount attributable to community effort. Here, the corporation was started during the marriage. The wife was issued all the corporation's stock, valued at $1,000. The commissioner found the stock was the wife's separate property. She and the husband were the only officers of the corporation. The husband devoted 100 percent of his effort to building the corporation and was primarily responsible for its success. We hold that the trial court's application of equitable apportionment to the increased value of the corporation's stock is supported by substantial evidence." (Dekker, supra, 17 Cal.App.4th at p. 852.)