In re Marriage of Feldner

In In re Marriage of Feldner (1995) 40 Cal.app.4th 617, the obligor spouse, a contractor, entered into a contract while married to act as a superintendent for the construction of a home for a third party. After separation, the obligor spouse refused to complete work on the contract and ultimately the third party sued the obligor spouse for breach of contract/implied warranty. The trial court found the third party lawsuit was a community obligation. The Feldner court agreed. (Feldner, supra, 40 Cal.App.4th at p. 625.) In so doing, the court in Feldner construed Family Code section 903 and noted the statute was "oblivious to the time of performance of a contract. The statute does not say that a contract debt is incurred when a contract is broken, or incurred when it is to be substantially performed, or anything like that. It says that a contract debt is 'incurred' when the contract is 'made.' When read together with section 910, subdivision (a) 'Except as otherwise expressly provided by statute, the community estate is liable for a debt incurred by either spouse before or during marriage . . . .' the effect of section 903 is to characterize contract debts as community when the contract is 'made' (as distinct from performed) during the marriage." (Feldner, supra, 40 Cal.App.4th at p. 622.) The Feldner court recognized that many contracts required extended periods of performance but, even in those cases, when performance continues after marital separation, the underlying character of the debt is unchanged: "The performance of a contract, however, is fundamentally different from the problem of determining its community or separate character. Many contracts, such as an installment debt, require extended periods of performance. The classic solution to the problem created by a separation date during such an extended period is to allow for reimbursement by the spouse who uses his or her postseparation earnings to pay a 'preexisting' community obligation. " (Feldner, supra, 40 Cal.App.4th at p. 624.)