| Currie v McTague |
| 2011 NY Slip Op 02774 [83 AD3d 1184] |
| April 7, 2011 |
| Appellate Division, Third Department |
| Cassandra Currie, Appellant, v Stephen McTague,Respondent. |
—[*1] Christopher Burns, Kingston, for respondent.
Garry, J. Appeal from a judgment of the Supreme Court (Cahill, J.), entered December 22,2009 in Ulster County, ordering, among other things, equitable distribution of the parties' maritalproperty, upon a decision of the court.
The parties were married in 2003 and resided together in the City of Kingston, Ulster Countyuntil 2008. In 2006, defendant's aunt died, leaving her estate to defendant's cousin. The cousinsubsequently gave defendant approximately $417,000 from the estate, which defendant depositedin his sole account in April 2007. In December 2007, he transferred the funds into a newlyopened account jointly held by plaintiff and defendant. In March 2008, plaintiff told defendantthat she wanted a separation and, in April 2008, defendant withdrew approximately $350,000from the account. He wrote checks to plaintiff for the balance of the account, totalingapproximately $60,000, when she moved out of the marital residence in May 2008.
Plaintiff commenced this divorce action requesting, among other things, equitabledistribution of the marital property. The parties stipulated to mutual divorces but proceeded to anonjury trial on the issue of equitable distribution. Thereafter, Supreme Court ordered, amongother things, that the funds in the joint account were defendant's separate property. Plaintiffappeals.
Plaintiff contends that although the funds were defendant's separate property at the time ofthe gift (see Domestic Relations Law § 236 [B] [1] [d] [1]), they were convertedinto marital [*2]property when they were transferred into the jointaccount (see Noble v Noble, 78AD3d 1386, 1389 [2010]). Such a transfer " 'raises a presumption that the funds are maritalproperty to be disbursed among the parties according to the principles of equitable distribution' "(Fehring v Fehring, 58 AD3d 1061, 1062 [2009], quoting Rosenkranse vRosenkranse, 290 AD2d 685, 686 [2002]). As the party seeking to overcome thepresumption, defendant bore the burden "to establish, by clear and convincing proof, that [the]joint account was established solely for the purpose of convenience" (Kay v Kay, 302AD2d 711, 713 [2003]) and " 'without the intention of creating a beneficial interest' "(Fehring v Fehring, 58 AD3d at 1062, quoting Chamberlain v Chamberlain, 24 AD3d 589, 593 [2005]).
The clear and convincing evidence standard requires the party bearing the burden of proof to"adduce evidence that makes it highly probable that what he or she claims is what actuallyhappened" (Krol v Eckman, 256 AD2d 945, 947 [1998]; see Home Ins. Co. of Ind. vKarantonis, 156 AD2d 844, 845 [1989]; Prince, Richardson on Evidence § 3-205[Farrell 11th ed]). We find the proof inadequate to satisfy this exacting standard. Defendanttestified that he transferred the money into the joint account "that [plaintiff] had access to aftershe kept telling [him] that she didn't trust [him] and she should have this and she should havethat." He further testified that "[i]n case something happened to [him], if [he] w[ere] in a coma,[he] agreed to give access to [his] loving wife" and that he "had no intention of gifting anything"to her. However, he did not testify that he communicated these limitations to plaintiff or toanyone else, nor did he directly contradict plaintiff's testimony that he repeatedly told her that themoney belonged to both of them and that the parties agreed to establish the joint account becausethe funds were their only substantial asset. Although plaintiff admitted that she never accessedthe joint account, neither did defendant until after plaintiff announced her intention to seek aseparation—and, even then, he did not withdraw all of the funds from the account. Hispartial withdrawal and payment of the balance of the funds to plaintiff are inconsistent with hisclaim that she was intended to have access to the money only if he were incapacitated, as was histestimony—corroborated by plaintiff—that he used funds from the joint account topay certain educational expenses on plaintiff's behalf. In view of these contradictions, as well asthe uncorroborated nature of defendant's testimony (see Garner v Garner, 307 AD2d 510,512 [2003], lv denied 100 NY2d 516 [2003]), we conclude that defendant did not meethis burden to rebut the presumption that the funds were marital property (see Fehring vFehring, 58 AD3d at 1062; Kay v Kay, 302 AD2d at 713; Rosenkranse vRosenkranse, 290 AD2d at 686).
Spain, J.P., Lahtinen and Egan Jr., JJ., concur. Ordered that the judgment is modified, on thelaw and the facts, without costs, by reversing so much thereof as classified an account held inboth parties' names as defendant's separate property; direct said account to be classified as maritalproperty and matter remitted to the Supreme Court for further proceedings not inconsistent withthis Court's decision; and, as so modified, affirmed.