The Court of Appeals in Araya v. Keleta, specifically addressed the issue of commingled property during the marriage as well as addressing child custody, support and alimony.

After a five-year marriage, husband filed for divorce seeking physical custody of their three children as well as seeking distribution of marital assets and dispensing of alimony.

The trial court after extensive litigation awarded physical custody to the mother with the father having a visitation schedule, as well as distributing the marital home in its entirety to the wife and awarding significant alimony and child support to the wife.

The Court of Appeals affirmed the award of physical custody to the mother as parties were not on equal legal footing due to extensive intrafamily offenses generally initiated by the father.

As a matter of law, there is a rebuttable presumption that joint custody is in the best interest of the children, except in an event where the judicial officer has found by a preponderance of the evidence that an intrafamily offense has occurred.

The trial court had determined that there were several cases of assault against the mother with at least one conviction in VA courts.   The wife had also a conviction for destruction of property again the husband however the court deemed parties were not equal with respect to domestic violence in that while the wife’s conduct was also reprehensible, it was not so dangerous or so likely of repetition as to the husband’s episodic assaultive behavior.

The fact that both parties had committed intrafamily offenses did not mean that the offenses simply canceled each other out, necessitating an award of joint custody.

Moreover, the wife presented no menace of psychological or physical harm to the children while the trial court was apprehensive that the husband may use force against the children.  Husband was also determined to have anger management issues, was inundated with work schedule, and didn’t seem to be able to fully assume a custodial role given the children’s schedule and obligations.

As with alimony and child support, the Court of Appeals also affirmed the trial court ruling in imputing certain deducted income against the father.

Overall, the trial court’s disallowance of deductions and imputation of income were not consistent with federal income tax law however the trial court had discretion to impute income where appropriate to arrive at a realistic estimate of a parent’s ability to pay.

The trial court has factored back in to the father’s gross income certain business tax deduction — although highly unconventional, not a reversible error.

The trial court also in distributing a significant portion of marital property to the wife recognized the wife’s significant contributions as a homemaker and as the primary caretaker for the children.  Her contributions in cleaning and arranging the husband’s medical office as a kind of limited joint venture in the start-up of the husband’s surgical practice.

Also, the court credited the wife with contributing substantially to the marriage by bearing and raising the children and freeing the husband to build his practice and pursue his business ventures, thus parties in a way had contributed equally to the family unit.

As with husband’s sole and separate home prior to the marriage, the court held that the property had transformed to a martial property because of the commingling of the properties.

The property purchased prior to the marriage was combined with an adjacent property and the entire unit had become the main marital home.

Thus, when a separate property is combined or commingled with marital property, the separate property loses its character as separate property and the new property created through transmutation is deemed to be a marital property subject to an equitable distribution by the court.

Refer to our Washington DC Divorce Lawyer page for more details on this subject.

Categories: Uncategorized.