McCreary v. Silver
1 CA-CV 16-0203-FC
| Ariz. Ct. App. | Nov 9, 2017Background
- Karyn McCreary (Wife) and Robin Silver (Husband) married in 2001, divorced in 2014; two children. Parties agreed to parenting issues; property division was litigated at trial and appealed.
- Two houses at issue: a Phoenix home Husband purchased pre-marriage but later titled as community property with right of survivorship (2002), and a Flagstaff home purchased during the marriage and titled as community property; Husband contributed significant separate funds toward Flagstaff purchase.
- A Wells Fargo brokerage account contained Husband’s premarital separate savings; Husband added Wife as joint tenant with right of survivorship after marriage.
- Airline miles accrued on a joint credit card during the marriage; Wife sought the miles at trial.
- Family court: awarded both homes to Husband but ordered an equalization payment of $295,223 to Wife; awarded the Wells Fargo account and airline miles to Husband; awarded the Toyota Highlander to Wife; neither party prevailed on appeal and fee requests were denied.
Issues
| Issue | Plaintiff's Argument (McCreary) | Defendant's Argument (Silver) | Held |
|---|---|---|---|
| Characterization of the two homes (community vs. Husband's separate) | Homes were not gifts — Husband retained separate interest; unequal division warranted given Husband’s separate contributions | Homes were titled as community with right of survivorship, creating a presumption of a gift to Wife | Court: Presumption of gift applies for real property titled jointly; Husband failed to rebut by clear and convincing evidence; homes treated as community and division affirmed |
| Wells Fargo brokerage account (joint account funds) | Account was joint tenancy and should be divided equally | Husband added Wife’s name only to create survivorship; funds remained Husband’s separate property | Court: Transfer of separate funds into a bank account does not create a presumption of gift; on the record, court reasonably found account was Husband’s separate property and affirmed |
| Airline miles earned on joint credit card | Wife sought the miles; court erred in awarding them to Husband and failed to explain equity; Husband waived claim by not listing them pretrial | Husband claimed the miles as part of his share; court may divide community property even if a party omitted the asset from pretrial statement | Court: Wife raised miles at trial; court properly treated miles as community property and could award them to Husband; no abuse of discretion |
| Equalization payment calculation (treatment of $25,000 transfer and Toyota) | Court miscalculated equalization — intended to offset $29,177 Highlander value with $25,000 community funds but math did not reflect that | Court found $25,000 was transferred from Wells Fargo into the Highlander value; withdrawals exceeded deposits; division accounted for these movements | Court: Where findings not requested, facts are presumed; court reasonably included Highlander in Wife’s column and excluded Husband’s $25,000 as no longer in his possession; calculation affirmed |
Key Cases Cited
- In re Marriage of Flower, 223 Ariz. 531 (App. 2010) (presumption of gift when separate property retitled; contributions may justify unequal division in some circumstances)
- Valladee v. Valladee, 149 Ariz. 304 (App. 1986) (title as joint tenancy or community with right of survivorship creates a presumed gift of one-half interest; rebuttable only by clear and convincing evidence)
- Stevenson v. Stevenson, 132 Ariz. 44 (1982) (bank-account form alone is insufficient to establish intent to gift separate funds)
- Neely v. Neely, 115 Ariz. 47 (App. 1977) (similar principle: deposit of separate funds into a joint account does not automatically create a gift)
- Toth v. Toth, 190 Ariz. 218 (1997) (family court must equitably divide community and jointly held property)