Wilcox v. Wilcox

• Decision Date: 07 November 1996
• Citation: 649 N.Y.S.2d 222,233 A.D.2d 565
• Parties: Debra A. WILCOX, Appellant, v. John H. WILCOX, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 222

649 N.Y.S.2d 222

233 A.D.2d 565

Debra A. WILCOX, Appellant, v. John H. WILCOX, Respondent.

Supreme Court, Appellate Division,

Third Department.

Nov. 7, 1996.

Vitanza, Shabus & Fertig (Christine C. Gallagher, of counsel), Norwich, for appellant.

Nancy K. Deming, Delhi, for respondent.

Before MIKOLL, J.P., and WHITE, YESAWICH, PETERS and CARPINELLO, JJ.

WHITE, Justice.

Appeal from a judgment of the Supreme Court (Mugglin, J.) ordering, inter alia, equitable distribution of the parties' marital property, entered January 2, 1996 in Delaware County, upon a decision of the court.

After their marriage on May 31, 1980, the parties established their marital residence in a home located on a 240-acre dairy farm owned by defendant's parents in the Town of Masonville, Delaware County. Defendant, in partnership with his father, operated the dairy farm while plaintiff secured outside employment until the parties' first child was born in August 1982. She returned to the workforce in 1985, staying employed until 1987, the year the parties' second child was born. She again secured employment in 1989 and remained employed thereafter. The record shows that, during the marriage, plaintiff contributed her earnings to the marital economic partnership, was the primary caregiver and occasionally performed chores around the farm. She also, without much assistance from defendant, renovated several rooms in the marital residence.

The dairy farm operation proved unprofitable, resulting in the dissolution of the partnership and the termination of farming operations in 1991. Thereafter, when it was learned that defendant's mother had Parkinson's disease which might require extended nursing home care, she conveyed her interest in the farm to her husband who then, on November 1, 1992, conveyed the farm to defendant for a recited consideration of $1.00, retaining a life estate in the property.

Concomitantly, the parties were experiencing marital difficulties which culminated in the commencement of this divorce action on October 27, 1993. At the conclusion of a nonjury trial limited to the economic issues, Supreme Court determined, inter alia, that the farm was a gift to defendant from his father and, thus, was defendant's separate property not subject to equitable distribution. It also dismissed plaintiff's cause of action to impose a constructive trust on the farm property. Lastly, Supreme Court denied plaintiff's application for counsel fees. Plaintiff appeals.

Plaintiff takes issue with Supreme Court's classification of the farm as defendant's separate property, contending that the conveyance between defendant and his father was not a gift. The hallmark of a gift is that it is "a voluntary transfer of property without consideration or compensation" (62 N.Y. Jur.2d, Gifts, § 1, at 182-183). Here, defendant's father testified that he gave the farm to defendant because he wanted to keep it in the family. He further testified that he received no money or any other thing of value from defendant, who confirmed that he paid nothing of value to his father. It further appears that the conveyance was prompted by the desire to shield the farm from any claims for nursing home or medical expenses incurred by defendant's mother. As we accord deference to Supreme Court's assessment of credibility issues and the weight of the evidence (see, Schweitzer v. Heppner, 212 A.D.2d 835, 839, 622 N.Y.S.2d 142), we conclude that Supreme Court's determination that the subject conveyance was a gift is amply supported by the evidence. Hence, it was properly classified as defendant's separate property (see, Feldman v. Feldman, 194 A.D.2d 207, 215, 605 N.Y.S.2d 777; Harned v. Harned, 185 A.D.2d 226, 227-228, 585 N.Y.S.2d 780, lv. denied 80...