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Ask S. Kincaid Your Own Question
S. Kincaid
S. Kincaid, Family Law Attorney
Category: Family Law
Satisfied Customers: 2509
Experience:  I have practiced family law since 1996, focusing on child custody and domestic violence
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Im prejudgement. ex wants credit when there is no equity.

Customer Question

im prejudgement.
ex wants credit when there is no equity. only im on the deed and title.
i have appraisals at date of marriage and separation showing it was depreciated due to his actions. of attempting to remodel but trashed it instead ( no permits and compromised structural integrity)
. after separation he hired an engineer against my approval. i ended up finishing the project with permits.
he wants to say he used separate property money from his business towards my SP, when he used community property money to start that business.
he want 'access" to the condo when the construction was finished by me.
not he is saying i did it wrong as an excuse to redo it. and he wants to move in.
they want to force me to not sell nor put liens on the condo. the control he wants is incredible.
is this legal?
i have court docs filed that state what they are seeking
Submitted: 2 years ago.
Category: Family Law
Expert:  S. Kincaid replied 2 years ago.

First of all, was the house acquired during the marriage? Second, the business he is referring to - was that acquired before or after the marriage? What was the source of money he used to start that business? What is the value of that business?

Customer: replied 2 years ago.
house w as 2 years before marriage.
business he started 5 yrs after marriage only put his name on it. . he used money from the the first business he started under both our names a yr after we were married. i know this. he is just stating separate property money. he has no inheritance and lots of money from the first business went to the business he started after marriage.
Customer: replied 2 years ago.
i have another file that is too big to attach
Expert:  S. Kincaid replied 2 years ago.

Well, first of all, his business is community property so you should be entitled to half the value. Second, community property contributions to separate property are also reimbursable to the community. So if the business contributed $50,000 to the house, then the community is entitled to $50,000, that would be divided evenly between the two of you. It would benefit him $25,000.

You do not have to voluntarily let him in the condo, but he may be able to gain access to it through the discovery process or by securing a court order.

Does that answer your questions?

Customer: replied 2 years ago.
can i call you tomorrow morning to discuss the details? 7 am pst
Expert:  S. Kincaid replied 2 years ago.

I am not available to do phone consultations. I can opt out so you can see if another attorney can do a phone consultation for you or we can continue in this format.

Customer: replied 2 years ago.
under what reasons can he get access? he only has a big tool box left in the garage. we were moved out for a year before we separated for the constructtion. i offered them to do appraisals before i put money into it. but they didnt do any. i live in it now. he is claiming moore marsden.
he used his income from his business. the appraisals from DOM and DOS show depreciation. can i request dates of value be theses dates? can he request it be valued at todays date? even though i have put more money into it after the date of separation.?also he shut down the business during the discovery process and i subpoenaed cash receipts.
Customer: replied 2 years ago.
this is in their rfoI am the Petilioner in this matter and I know the facts to be tnre from my own personal knowledge,
except for those facts which are stated on information and beli.ef and as to those facts I believe them
to be true. If called to testifii I could and would competently rtestify under oath to each fact stated
I. On3/13115 this court appointed Special Master, Cornmissioner Richard G.Vogl, retired..
Each party wrs to pay Il2 of the fee (Pet. paid it all since Respr. would not) and both parties were
ordered to corcperate (initially Resp. said she didn't have to cooperate so at a subsequent RFO the
court then orclered Resp. to cooperate). Respondent failed to aftend the 6117l15 meeting set by the
In Re Marriage of Bradford and Camarenal CaseNo. 14D007406
Special Master. I attended the meeting with my attomey, Anna C. Brace. Afterwards, Comm.
Vogl prepared an "Interim Report of Special Master" (a copy is attached hereto as Exhibit "A") and
filed it with the court on(###) ###-####.I request that the court adopt the recommendations of the Special
Master as set forth on page 6 of the report. I also request Petitioner reimburse me $2,100 forthwith as
and for her one-half of the $4,200 Special Master's retainer fee that I advanced.
2. I also request that this matter be assigned to Comm. Vogl regarding 1)
the characterizatron of the real property on Seneca in Anaheim (see "Further Suggestion" on page 6
of Ex. "A".) and 2) to determine the construction needed to finalize the family residence and
determine and manage logistics required to finahze said project (see Ex."B" "Building
Project Tracking Application"). At an Ex Parte on 717lI5 this court ordered that the minor children
not be allowed at the property because of the condition of the residence. I also request Respondent to
be ordered againto cooperate and to attend the next meeting with Comm. Vogl and that there be
monetary and/or evidentiary sanctions if Respondent continues to fail to cooperate.
3. The characterization of the family residence is in dispute as the Respondent believes thatit
is in her name alone and thus her separate property. The Petitioner believes that the community has a
substantial equity in the residence based on Moore/Marsden as the parties have resided and used
community funds to pay the mortgage for 10 years. Further the community paid for building
materials and substantial work to improve the residence during the remodel. The Petitioner has a
binder worth of receipts for improvements which is 6 inches thick. It is anticipated that the
constructions related expenses alone would require days of court time. Petitioner believes that
Commissioner Vogl will require the assistance of a forensic accountant and I request that the court
appoint Joel Dannenhauer under Evidence Code 730, to calculate a Moore/Marsden; to assist
in the determination of Family Code 264A tracing and of the characlerization of the family residence.
4. The Respondent has commenced work on the remodel project at the family residence
without consideration of the need to get permits for certain items. For instance, the Petitioner
finished drywall and painted prior to an inspection which requires acoess to the sheer wall. The
In Re Marciage of Bradford and Camarenal Case No. 14D007406
Respondent continues to cut corners and fails to understand what is required to finahze the project.
There are open building permits which must be completed (see Exhibit'oB" attached). I am
requesting ttrat the Court appoint Commissioner Vogl to determine what construction needs to be
completed and manage the logistics necessary. Without this project frnalized, the family residence is
merely a debt that no on can reside in and its sale is impossible.
Customer: replied 2 years ago.
this is the recommendation of the special masterFierther Suggestion
It is recommended that a court hearing be set to deteffiiine the character of the real property on
Seneca in Anaheim. It would seem that although the reaity was purchased in the name of Respondent
alone, eachparry placed substantial funds invested into the reaity. Whether it_is a separate properQ'.
asset of Respondent with reimbursement due to Petitioner of some sum, or whether it is so co-mingled
as to now' be community in nature, or *'hether a division pursuant to the case of Moore-Marsden should
be resolved before the ultimate trial on all other issues.
The ordering of sanctions is completely discretionary with the court. It would seem that the
authorities upon wfich the court may reiy in ordering sanctions in this matler are:
Family Code Section27l (fuastration of policy to promote settlement)
CCP 1.28.6 bad-faith actions or tactics that ne frivolous or soleiy intended to
cause unnecessary delaY.
CCP I77 .5 (violation of court order)
CCP 2023.02A; 2023.8A, 2030.300 (discovery - no meet and confer)
It is recommended that the court make the following orders:
(1) Respondent must deliver all tools in her possession to Petitioner;
(Z) Resfondent to account in written form to Petitioner for ail debts created by her against the ' ' reaiiy South Seneca Circle, Anaheim s.ince the parties' separation;
(3) Resfondent to account in written form to Petitioner for ail construction started (u'hether or
on the realq' at South Seneca Circle, Anaheim since the parties'
(4) Rispondent to account in u.r{tten form to Petitioner for all expenditures made by her on the ' ' realiy South Senec.a Circie, Anaheim since the p^arties' separation;
(5) Thaf the mafier be placed on the court's triai for the bifircated issue of the chuacter of the
rcal properfy at South Seneca Circle, Anaheim.
Ofher Issues
There was apparentiy no order from the court in regards ***** ***** sharing of lhg cost of the Special,
Master. The your Splecial Master agreed to bill at the same billing rate as counsel for Petitioner.
Petitioner has paid a deposit, and the billing-to-date is attached
Customer: replied 2 years ago.
this was on commissioners list toofyi i i asked for more time to meet commissioner because i was waiting on appraisals. they ignored me and met anyways.Reatrty nssale
Unresolved issues which have not yet been addressed Fy.the pq4ff 9r qh9 Spegial Master are:
(21) netitionerifather's access to South Seneca Circle, Alaheim, and (3) Petitioner/father's
work on268 South Seneca Circle, Anaheim.
This single famiiy residence was in the midst of renovation. living in the properfy
lalttro"gh ii *olild r"*m"R"rpondent maintains this address as her legal mailing address)-
Petitioner wants access to the property to make necessary repairs.
But now Petitioner has become aware that Respondent has permitted liens to be placed against
ttre realty to have some construction work completed 6y others. This creation of debt may be a
v:ioiatiori of the automatic temporary restu'aining orders'
Petitioner wants access to tbe property to see what is going on'
Respondent failed to atlend the scheduied meeting on June 17,2015 and no information has
been provided by ber as to these issues.
The matler may be resolved at a future meeting to be set by your Special Master.
t") LL
'1 A
Fierther Suggestion
It is recommended that a court hearing be set to deteffiiine
Expert:  S. Kincaid replied 2 years ago.

From what I read, it sounds like he's alleging a community property interest in your house, not a separate property interest. That is likely true under the Moore Marsden rule. However it is also apparent that he's claiming that the entire house is community property because it has been commingled with community property in a way that makes it impossible to trace what portion of it is community and what part remains separate. I have never heard of commingling applying to a house. I think he's most likely to prevail on community reimbursement under the Moore Marsden rule.

Customer: replied 2 years ago.
can you clarify what he may prevail in and what he cant? and what i need to do to fight it?
Customer: replied 2 years ago.
doesnt the moore masrden need there to be equity for it to apply?so you think he might get reimbursement or credit but not the comminglingy to make it community property right?
Expert:  S. Kincaid replied 2 years ago.

If all the information I have is correct, his SEPARATE property is not entitled to reimbursement but the community might be entitled to reimbursement. He's asking the house be declared community property (which is meaningless if there is no equity in the property.) But I doubt he can prevail on that argument.

Expert:  S. Kincaid replied 2 years ago.
With no equity, the calculation might leave the community with no reimbursement. You can use this worksheet to figure it out:
Customer: replied 2 years ago.
i have an appraisal for the date of marriage (360K) and date of separation (243K). at the date of separation it was under construction and his unexperienced modification actually made the place structurally unsound. after the separation.
he hired a structural engineer and he paid 8k. after that i paid for the permits and paid for the work to fix the structural and made other major changes to the electrical, plumbing, and mechanical that were not up to code. i have spent 60k to make it livable.
can he request the date of appraisal be a more recent date??? or after i completed construction?
he says he will value the home at 500k . can they argue my appraisals by a legitimate real estate appraisal?all of the house hold fixtures purchased were installed, installed then removed for other construction work.the only thing that was never installed is the wood flooring that as sitting in the garage. he paid 7k for it during the marriage. i ended up using the flooring and all the fixtures .
Customer: replied 2 years ago.
im worried about that commingling law . you say its never been done on a house. i woner what he might say?maybe i can read that law and get an idea. do you have something on the commingling laws that i can read??
Customer: replied 2 years ago.
in the form it says fair market value at time of devision. what date goes there.???
can he state a current price of 500k. when comps of a finished home are between 300-350.?i want it appraised at the date of separation before i put money into it. and how he really caused damage.
can he ask for todays date?
Expert:  S. Kincaid replied 2 years ago.

It really should be the date of separation but if that's not possible, the court could use an appraisal from another date. But an appraisal would be used, not comps.

Customer: replied 2 years ago.
can you give my more info on the commingling law?
Expert:  S. Kincaid replied 2 years ago.

Generally, if you have a separate asset (usually a bank account) and you start depositing community funds into it and taking funds out, the entire account will be "commingled" if you can no longer trace how much of the account is community property and how much is separate property. Once the court determines that commingling occurred, that asset becomes community property.

Customer: replied 2 years ago.
well we mixed our money from the beginning. spent separate money from before marriage on the business anyways.i know he claims a loan from a friend that he used for the construction. how does that loan qualify?
Expert:  S. Kincaid replied 2 years ago.

Both the business and the startup loan would be presumed to be community assets/debts. To prove otherwise, he would need to trace the business back to separate property assets.

Customer: replied 2 years ago.
sorry for the delay. my internet was down.what about this:wheni first filled out the Debt and asset form, i was dumb enough to gooff of his list.i thought all debt during the marriage was community. So i put the backked association dues on my form separarte property as community debt. I also put a HELOC that was used for business at community.i have not fixed that since the begining, it is PRELIMINARY box i checked on that one.could that be what he is basing it on??also.
i heard him say that because i paid the mortgage with my income , he says , my income was community property. therefore the condo is community property,could these be an argument?
Customer: replied 2 years ago.
the HELOC was from equity on my condo when there was equity. (9 years ago.)
it was taken out during the marriage.
Expert:  S. Kincaid replied 2 years ago.

Well, you can always amend your Schedule of Assets and Debts. Did you list the condo itself as separate or community?

Your income from employment, during the marriage, is community property and if you paid the condo with that income, you did contribute community property to your separate property asset. That is exactly the point I expect he is making. I'm not sure that calling the HELOC for community debt would change the nature of the houe itself, though. Was it used for his business? Or some other business?

Customer: replied 2 years ago.
I listed the condo as separate property. so did he.the large HELOC was used for personal and business. this one was paid off with business money.
the smaller HELOC was used to consolidate personal credit cards that were used for personal and for the business.
this one is still outstanding?
is this HELOC considered Community of separate?how can i argue against him calling the condo community asset??I earned around $2,000-$3,500 per month. the payment is $977. less than half.