| Batease v Batease |
| 2010 NY Slip Op 02449 [71 AD3d 1344] |
| March 25, 2010 |
| Appellate Division, Third Department |
| Nicole A. Batease, Respondent, v Glenn A. Batease,Appellant. |
—[*1] Bartlett, Pontiff, Stewart & Rhodes, P.C., Glens Falls (James R. Burkett of counsel), forrespondent.
Peters, J.P. Appeal from an order of the Supreme Court (Krogmann, J.), entered February 9,2009 in Warren County, which granted plaintiff's motion for an order determining that a certainparcel of real property is subject to equitable distribution.
Prior to the parties' marriage, defendant sought to purchase a parcel of land in WarrenCounty. Because divorce proceedings were pending concerning his first marriage, defendantasked his parents to purchase the parcel, which they did in February 2002. Defendant then beganbuilding a residence on the parcel, to which plaintiff contributed financially both before and aftertheir October 2003 marriage. Sixteen days after the parties married, defendant's parentsconveyed the parcel to him.
Plaintiff commenced this action for divorce in March 2006. Following discovery, whichincluded examinations before trial of defendant's parents, plaintiff moved for a pretrial orderclassifying the parcel as marital property. In opposition, defendant attempted to show that theparcel was separate property by arguing that his parents were his agents when they purchased theproperty prior to the marriage or, alternatively, that it was a gift from his parents solely to him.Supreme Court found that, since the parcel was acquired during the marriage, it was presumed tobe marital property and defendant bore the burden of proving that it was separate property.Finding that the deposition testimony of defendant's parents failed to support either ofdefendant's assertions, Supreme Court granted plaintiff's motion. Defendant now appeals.[*2]
Defendant contends that Supreme Court erroneouslyclassified the parcel as marital property, arguing that the evidence proffered on the motion wassufficient to raise an issue of fact as to whether it was a gift to him alone from hisparents.[FN*]Marital property is defined as "all property acquired by either or both spouses during themarriage and before . . . the commencement of a matrimonial action, regardless ofthe form in which title is held" (Domestic Relations Law § 236 [B] [1] [c]). Separateproperty, on the other hand, includes "property acquired . . . by . . .gift from a party other than the spouse" (Domestic Relations Law § 236 [B] [1] [d] [1]).
Here, because the parcel was acquired during the marriage, it was presumed to be maritalproperty (see Dashnaw v Dashnaw,11 AD3d 732, 733 [2004]; Cassarav Cassara, 1 AD3d 817, 818 [2003]; Walasek v Walasek, 243 AD2d 851, 854[1997]). In support of her motion to classify it as marital property, plaintiff submitted thedeposition testimony of defendant's parents. Although defendant's mother could not recallwhether the parcel was given to defendant as a gift or if repayment was expected, defendant'sfather unequivocally testified that he did not make any gifts of property or money to defendantduring the relevant time period. Rather, he testified that he purchased the parcel for defendantand expected to be repaid the purchase price. At the time of his deposition, defendant's fatherexplained that defendant owed him approximately $180,000—which included the$242,000 purchase price of the parcel—and that he had been repaid in part for it throughvarious payments made by defendant over the course of the previous years.
In opposition, it was defendant's burden to lay bare his proof to establish a triable issue offact as to whether the parcel was, in fact, given to him as a gift (see Dashnaw vDashnaw, 11 AD3d at 733; Cassara v Cassara, 1 AD3d at 818; see generallyZuckerman v City of New York, 49 NY2d 557, 562 [1980]). While defendant stated as muchin his affidavit, pointing to the recording sheet of the deed that indicated it had been conveyed tohim for no consideration, he nonetheless acknowledged that he agreed to repay his parents thepurchase price when he was able to. Although he argues that such an indefinite promise to repayis not valid consideration for the conveyance of the parcel, "[t]he hallmark of a gift is that it is 'avoluntary transfer of property without consideration or compensation' " (Wilcox vWilcox, 233 AD2d 565, 566 [1996], quoting 62 NY Jur 2d, Gifts § 1, at 182-183), andthe inquiry focuses on the subjective intent of the donor at the time of the conveyance (seeMatter of Ajamian, 270 AD2d 724, 727 [2000], lv dismissed 95 NY2d 931 [2000];Gordon v Gordon, 70 AD2d 86, 91 [1979], affd 52 NY2d 773 [1980]). Withuncontradicted proof that repayment from defendant was expected, we fail to find a genuineissue of fact as to whether the conveyance of the parcel to defendant was a gift. As such,Supreme Court properly classified it as marital property.
Spain, Lahtinen, Stein and Garry, JJ., concur. Ordered that the order is affirmed, withoutcosts.
Footnote *: On this appeal, defendant hasnot raised his alternative argument that his parents acted as his agents in acquiring the propertyprior to the marriage. As such, the issue is deemed abandoned (see Devine Real Estate, Inc. vBrennan, 42 AD3d 646, 648 n [2007]).