Mathis v. Mathis

James R. Cooper, Judge,

dissenting. I dissent because I do not agree that the chancellor could reasonably conclude on the evidence before him that Mr. Mathis intended to make a gift of a full half-interest in the funds to the appellee. Although the retirement funds, following disbursement, were deposited in the parties’ joint bank account and remained there for a few weeks before being transferred to an account belonging solely to the appellant, depositing nonmarital funds into a marital joint account does not necessarily render them forever funds owned by the entirety. Jackson v. Jackson, 298 Ark. 60, 765 S.W.2d 561 (1989). Instead, such action merely gives rise to a presumption that the funds are owned as tenants by the entirety, and this presumption can be overcome by clear and convincing evidence. Id., Lofton v. Lofton, 23 Ark. App. 203, 745 S.W.2d 635 (1988). The question in the case at bar, therefore, is whether the chancellor erred in finding that the appellant failed to overcome the presumption by clear and convincing evidence.

I submit that the chancellor did err for the simple reason that the transaction which led to the funds being deposited in the joint account was so marked by adversity that no reasonable person could possibly conclude that the appellant intended to make a gift to the appellee. Here, the undisputed evidence shows that the parties were estranged prior to the transaction. The appel-lee’s own testimony shows that she was living with her mother prior to signing the release because the appellant forced her to leave the marital home after she refused to sign the spousal release. After the release was signed, she was permitted to return to the marital home.

It was in this context of adversity and coercion that the funds were deposited into the joint account. The majority concludes that this deposit into the joint account exhibited an intent on the part of the appellant to split the lump sum with the appellee, and if depositing nonmarital funds into a joint account necessarily rendered them forever funds owned by the entirety, that conclusion would be logical. However, such a deposit does not have that effect, see, Jackson v. Jackson, supra, but instead merely gives rise to the presumption of a gift. I respectfully submit that, given the adverse, hostile, and coercive nature of the circumstances surrounding the deposit in the case at bar, the majority’s conclusion that the appellant intended to make a gift to the appellee defies all logic. I, too, feel sympathy for the appellee in this case, but I believe that, on balance, we do more harm than good when we indulge such sympathies by doing violence to the law.

Mayfield, J., joins in this dissent.