dissenting.
I agree with the magistrate’s determination that Kathryn Wolford was entitled to the adjudicated portion of the post-marital increase in the value of Commtek, Inc., stock. This is not to say that the majority opinion went awry by referring to Speer v. Quinlan, 96 Idaho 119, 525 P.2d 314 (1974). It is to say that a correct reading of Speer allows the trial court considerable discretion in determining whether and to what extent the marital community is entitled to be credited for the increased value in an asset which was at marriage the separate property of one of the parties — in this case the separate estate of the husband.
The majority quotes with approval the passage from Speer that “the trial court should take the following factors into consideration: ____” 96 Idaho at 128, 525 P.2d at 319 (emphasis added). There is no indication from the majority opinion that the trial court took the wrong factors into consideration, or did not weigh the correct factors when it awarded some of the increased value in Commtek stock to Kathryn. Without such a determination, there appears to be no reason for supplanting the trial court’s decision with a decision of this Court or with a decision of the district court sitting in an appellate capacity.
Appellate courts sit to ascertain the existence of prejudicial error, but that does not encompass the rendering of de novo decisions on the merits without first establishing error. The record in this case amply sustains a conclusion that a most thoroughly prepared ante-nuptial agreement was drawn so as to preserve to each party his/her pre-marital estate, and any increase therein — if it was attributable to the owner thereof. The agreement did not anticipate that community effort would result in a substantial increase in the value of the separate estate of just one party — in this case that of the husband.
And, as Kathryn’s counsel appropriately points out in their brief to this Court:
It is well established in this jurisdiction that when community efforts, labor, industry or funds enhance the value of separate property, such enhancement is community property for which the community is entitled to reimbursement. In the decision of Gapsch v. Gapsch, 76 Idaho 44, 277 P.2d 278 (1954), the Idaho Supreme Court set forth the following proposition:
As a general rule, the natural enhancement in value of separate property during coverture does not constitute community property; however, to the extent an enhancement in value is due to community efforts, labor, industry or funds, it falls into the community. 41 C.J.S., Husband and Wife, § 479, b., p. 1015. 76 Idaho at 52, 277 P.2d at 282.
Plaintiff-appellant’s brief, 42-43. The brief goes on to state that the principle announced in Gapsch has been often reaffirmed. I see no reason now to disturb this precedent, or the thoughtful determination by the trial court in this instance.