| Campfield v Campfield |
| 2012 NY Slip Op 03507 [95 AD3d 1429] |
| May 3, 2012 |
| Appellate Division, Third Department |
| 2—Roger A. Campfield, Respondent, v Sharlene M.Campfield, Appellant. |
—[*1] Butler & Butler, Vestal (Matthew C. Butler of counsel), for respondent.
Rose, J.P. Appeal from an order of the Supreme Court (Tait, J.), entered May 9, 2011 inTioga County, which, among other things, awarded plaintiff a one-half interest in certain realproperty, upon a decision of the court.
The parties married in 1986 and lived on a 203-acre farm owned and operated by defendant'sfather. Upon the death of defendant's father, defendant inherited the property, the parties movedinto the main residence together and, as executor of the estate, defendant conveyed the propertyto herself and plaintiff as tenants by the entirety in 2003. After defendant left the maritalresidence in 2009, plaintiff commenced this action for divorce and Supreme Court held a nonjurytrial to identify and distribute the parties' marital assets. Supreme Court concluded, among otherthings, that the real property should be classified as a marital asset subject to equitabledistribution and ordered that it be divided between the parties on an equal basis. Defendantappeals.
Both parties agree that at the time defendant took title to the real property from her father'sestate, it was her separate property (see Domestic Relations Law § 236 [B] [1] [d][1]). Contrary to defendant's contention, however, Supreme Court correctly concluded that hersubsequent conveyance of the property to herself and plaintiff as tenants by the entirety created apresumption that the property was marital (see Chiotti v Chiotti, 12 AD3d 995, 996 [2004]; Arnold vArnold, 309 AD2d 1043, 1044 [2003]; Rosenkranse v Rosenkranse, 290 AD2d 685,[*2]686 [2002]). In order to rebut this presumption, defendantwas required to come forward with clear and convincing proof that she did not intend plaintiff tohave an ownership interest in the property, but merely placed his name on the deed for the solepurpose of convenience (see Currie vMcTague, 83 AD3d 1184, 1185 [2011]; Burtchaell v Burtchaell, 42 AD3d 783, 787 [2007]; Kay vKay, 302 AD2d 711, 713 [2003]). Defendant's testimony that she placed plaintiff's name onthe deed in case something happened to her does not suggest the lack of an intent to give him aninterest in the property. Nor did defendant contradict plaintiff's testimony that she told him thatthe property would provide for their retirement. Based on our review of the record, we agree withSupreme Court that defendant failed to overcome the presumption of marital property (seeCurrie v McTague, 83 AD3d at 1185; Stahl v Stahl, 80 AD3d 932, 933 [2011]). Further, we cannot agreewith defendant's argument that she is entitled to a credit for what she now describes as hercontribution of separate property to the acquisition of a marital asset. There was no suchacquisition here. Rather, she transmuted her separate property into marital property by virtue ofthe deed giving an undivided one-half interest to plaintiff (see e.g. Chambers vChambers, 259 AD2d 807, 808-809 [1999]; Brugge v Brugge, 245 AD2d 1113, 1113[1997]; compare Milnarik vMilnarik, 23 AD3d 960, 962-963 [2005] [credit for separate property is given whereinherited money is used to purchase marital property]).
Defendant's remaining contention, that Supreme Court improperly ordered the parties tonegotiate a division of the real property, is without merit as the court merely provided the partiesa brief opportunity to voluntarily determine how to divide the property, which consists of severaldifferent parcels and has valuable timber and gas rights associated with it.
Spain, Malone Jr., Kavanagh and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.