| Cease v Cease |
| 2010 NY Slip Op 03518 [72 AD3d 1450] |
| April 29, 2010 |
| Appellate Division, Third Department |
| Nancy Cease, Respondent, v Daniel Cease,Appellant. |
—[*1] Michael S. Federoff, Kingston, for respondent.
Cardona, P.J. Appeal from an order of the Supreme Court (O'Connor, J.), entered January21, 2009 in Ulster County, which denied defendant's motion for a classification of certain realproperty as separate property.
Defendant (hereinafter the husband) and plaintiff (hereinafter the wife) were married in1982. Thereafter, the wife found a one-family residence in the City of Kingston, Ulster Countyand the husband discussed how they could afford to live in that house with financial help fromhis parents. In March 1984, the husband's father took out a mortgage and purchased theresidence using his own funds for the down payment. The parties then moved into the home and,using marital funds, the wife wrote monthly checks to the husband's parents in amounts equalingthe exact amount of the mortgage payment, which varied depending on the interest rate and taxescrow. In 1995, the husband's father deeded the property to the husband only. The husbandtestified that, in 2000, he paid off the mortgage balance with an inheritance he had not disclosedto his wife. The wife continued writing monthly checks from the household account which thehusband's mother put in a separate bank account that the husband opened without the wife'sknowledge because he claimed he could not "trust" her with money.[FN*]The husband and his [*2]mother testified that the money fromthat account, which was no longer necessary for the mortgage, was used to pay property taxesand other things that the husband "needed."
In 2005, the parties separated and, in 2006, the wife commenced this action for divorce. Thehusband moved for a pretrial classification of the subject residence as his separate property notsubject to equitable distribution. Thereafter, a hearing was held at which the wife, the husband,and the husband's mother testified. The husband and his mother indicated that the parties'residence was always meant to eventually belong to the husband alone and the fluctuatingpayments received by the parents constituted "rent," not mortgage payments. In contrast, thewife testified that, after she found the house, it was her understanding that the husband's namewould be on the deed and his parents would loan them a down payment and use their credit toobtain an affordable mortgage. She testified that the house was always considered to be herhome also, it was never referred to as a rental, and all monthly payments given to the parentsfrom marital funds were considered to be mortgage payments (or, later, repayments for the initialdown payment). Additionally, the wife testified that contributions towards improving the homeover the years by herself and her family were made under the assumption that the propertybelonged to the wife as well as the husband. Following the hearing, Supreme Court denied thehusband's motion and ruled that the subject residence was marital property subject to equitabledistribution, prompting this appeal.
The husband contends that Supreme Court erred in determining that the subject residence ismarital property and not his separate property. Notably, "marital property" is defined in theDomestic Relations Law as "all property acquired by either or both spouses during the marriageand before the execution of a separation agreement or the commencement of a matrimonialaction, regardless of the form in which title is held" (Domestic Relations Law § 236 [B][1] [c]). Thus, "[p]roperty acquired during marriage is presumed to be marital unless thepresumption is rebutted by the party asserting the separate property claim" (Solomon vSolomon, 307 AD2d 558, 559 [2003]; see Cassara v Cassara, 1 AD3d 817, 818-819 [2003]). Moreover,as relevant herein, "the fact that property is conveyed by a nonspouse to only one spouse duringthe marriage is not necessarily determinative on the issue of whether the property is separate ormarital in nature" (Dashnaw vDashnaw, 11 AD3d 732, 733 [2004] [internal quotation marks and citation omitted];see Seidman v Seidman, 226 AD2d 1011, 1012 [1996]).
Here, since the property was acquired during the marriage, it is presumed to be marital innature; therefore, the burden shifted to the husband to demonstrate that the property deeded tohim by his father was separately owned by him (see Solomon v Solomon, 307 AD2d at559). Significantly, in concluding that the husband did not meet that burden, Supreme Court heldthat the husband and his mother were not credible witnesses, while the wife's testimony wascredible. Supreme Court found that the residence was "intended for the parties," not just thehusband. The court additionally found that the husband affirmatively led the wife "to believe onething about their eventual ownership of the house and the financial obligations relating to thesame, but he was actually setting up a different arrangement that would solely benefit him."Upon our review of the record and "according the required deference to the fact-finding andcredibility determinations of Supreme Court" (Gulbin v Moss-Gulbin, 45 AD3d 1230, 1232 [2007], lvdenied 10 NY3d 705 [2008]), we find no basis to disturb the court's conclusion that thehusband failed to prove that the house was his separate property (see Seidman vSeidman, 226 AD2d at [*3]1012).
We have examined the husband's remaining arguments and find them to be unpersuasive.
Spain, Malone Jr., McCarthy and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: At the same time, the husbandtestified that the wife continued to handle all household bills and write all the checks to paythem.