Mallard v. MallardAnnotate this Case
Following the denial of her motion for new trial, as amended, Alba Mallard (Wife) was granted a discretionary appeal from the final judgment and decree of divorce dissolving her marriage to Kenneth Mallard (Husband). The issue on appeal was whether the superior court erred by awarding Husband a 100% interest in the parties’ marital home. In the divorce action, Wife did not object to Husband being awarded the possession of the Property as she had purchased another home, but she asked that the Property be partitioned or that she be awarded 50% of its value. The trial court declined Wife’s request to partition the Property, and awarded it entirely to Husband. In so doing, the superior court determined: at the time of the parties’ remarriage, there was no equity in the Property; the outstanding balance of a loan on the Property (which Husband paid off from his separate funds) was higher than the fair market value of the Property a year after the payoff; each party owned a 50% interest in the Property as the result of the Wife’s deed to Husband; there was no evidence that Husband intended to make the payment of the debt a gift to Wife or to the marital unit; and there was no marital investment in the Property. The Property was considered by the parties to be the separate property of Wife, but she made the joint property of Wife and Husband. And, as joint tenants with right of survivorship, each party held an interest in the Property in part and potentially in whole. The Supreme Court held that the superior court erred in its finding that Husband’s payment of the Debt was not a gift to the marital estate. "And, while unquestionably the 'source of funds' rule as set forth in "Maddox v. Maddox" was a method of equitable distribution of marital property, it contemplates and weighs the contribution of separate property brought to the marriage against the entire non-marital and marital investment in the property." The Court reversed and remanded for further proceedings.