(dissenting in part and concurring in part).
[¶ 33] Issue 1: Inclusion of Gifted Property Into the Marital Assets.
[¶ 34] I respectfully dissent to the inclusion into the marital assets of the eighty acres gifted to Galen and Nancy by Galen’s parents. I find this to be a clear case of abuse *487of discretion by the trial court. Voelker v. Voelker, 520 N.W.2d 903, 907 (S.D.1994).
[¶ 35] This eighty acres of farmland had been held by Galen’s parents as part of their family farm. The land was conveyed to Galen and Nancy by filing of a warranty deed on January 10, 1994. Only six months later Nancy, not Galen, filed for divorce. Of the approximately 10,000 days the couple were married, they held joint title to the land for a minuscule 180 days or only two per cent of the time they were together.
[¶36] The fact that Galen’s parents were optimistic enough, or naive enough, to assume their son’s marriage of 26 years would continue on and therefore conveyed the realty in joint tenancy to Galen and Nancy, is hardly as determinative as the trial court and the majority contend. It exalts form to the exclusion of the substantive criteria as set forth in Voelker.1 Those factors to be used for determining property division are: (1) duration of the marriage; (2) value of the property owned by the parties; (3) age of the parties; (4) health of the parties; (5) competency of the parties to earn a living; (6) contribution of each party to the accumulation of property; and (7) the income-producing capacity of the property owned by the parties. The rationale of the trial court is also inconsistent with the dictates of SDCL 25-4-44 which authorizes division of marital assets upon a divorce “whether the title to such property is in the name of the husband or the wife.” In Clement v. Clement, 292 N.W.2d 799, 801 (S.D.1980) we held that “the statute [SDCL 25-4-44] is specific that title does not control the distribution of the property in a divorce action.” See also Prentice v. Prentice, 322 N.W.2d 880, 882 (S.D.1982).
[¶ 37] The purpose of the conveyance is uncontested. Galen testified that it was an advance on his inheritance from his parents. Nancy testified she recognized the transfer was a gift as an advance on Galen’s inheritance but nevertheless demanded a share.2 This admission of Nancy’s by itself should be enough to overcome the assumption that the conveyance was meant to be a gift jointly to Galen and Nancy. Yet despite Nancy’s candid admission, the trial court found as fact that this land was marital property based solely on the face of the deed.
[¶ 38] A detailed comparison of the factors addressed in Voelker which are noticeably absent from the trial court’s findings and the majority opinion, show the lack of justification in treating this land as a martial asset. Both in Voelker and in this case the parties all worked, were in generally good health, were capable of supporting themselves and were possessed of less than substantial assets. When we get to the specifics of the parties’ direct relationship to the land, the comparison between the two cases comes into even sharper focus.
[¶ 39] In Voelker, the “[h]usband helped his father farm the property. Wife had no involvement with the land. She did nothing to contribute to the accumulation of the property.” Voelker, 520 N.W.2d at 908. The same applies here during the time between the conveyance and separation. In Voelker, the husband acquired the property through probate six months before separation. Here it was also six months. In Voelker, “[n]one of the income from the land was ever commingled with marital monies. None of the income was used to purchase marital property. None of the income from the inherited property was used to pay marital debts. Wife had no involvement with the property and made no contribution in acquiring the *488land.” Id. Again, it is the same in the case now before us.
[¶ 40] There is one major difference with Voelker. Therein we held the trial court’s award of thirty-five per cent of the inherited realty to the non-relative spouse to be an abuse of discretion. Here the majority affirms an even greater award, that of fifty per cent, to a non-relative of the grantors.
[¶41] In Andera v. Andera, 277 N.W.2d 725 (S.D.1979), the family farm was purchased at an artificially low price by the husband from his mother six months prior to the commencement of the divorce. Like the case now before us, the transfer document (a contract for deed) showed both the husband and wife as purchasers from the husband’s mother. In affirming the trial court’s refusal to treat the land as a marital asset we noted in Andera, “[t]he land was in the nature of a gift from the mother to the son, and there was no contribution of any significance by appellant [the wife] in acquiring the land.” Andera, 277 N.W.2d at 728.3
[¶ 42] In Bennett v. Bennett, 516 N.W.2d 672 (S.D.1994) the wife inherited assets from her father who died during the course of the marriage but the estate had not been closed at the time of the divorce. We held that “[i]n this situation (and noting the factors to be considered in property divisions) Robert had little if any involvement with the property Bonnie inherited from her father and did nothing to contribute to the accumulation of the property.” Id. at 677. We upheld the exclusion of the inherited property from the marital assets to be divided by the divorce decree.
[¶ 43] The intent of Galen’s parents was clear. It was to keep the farm in the family and see their life’s work continue on through the efforts of their son. It clearly was not to see a portion of their homestead in the hands of a hostile ex-spouse.
[¶ 44] This case should stand as a stark warning to farmers with children and their estate planners or for that matter, any parent desirous of passing on the family business and keeping it in the family. It is also without any support when examined in comparison to our substantial prior case law.
[¶45] I concur with the treatment of the milk checks. It appears the trial court considered farm debt incurred prior to the divorce so it properly considered the milk payments not applied to personal use.
[¶ 46] Issues 2, 3 and 4: I concur. However in consideration of alimony as affected by property division, the 80 acres discussed in Issue One should be excluded.
. Curiously, the trial court had no difficulty in going behind the four corners of the milk checks that were made payable to Galen’s mother to find that the proceeds were marital assets. Yet when it came to the four corners of a deed to the . realty signed by Galen's parents, the court went no further in its findings, contrary to Voelker.
. Nancy testified to the following on this issue:
Q: Would you agree with me that this gifted 80 acres would not have been made to you if in fact you were not the spouse of Galen?
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A: Yes
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Q: How do you inherit from his parents?
A: I figure I'm flesh and blood now. You consider when I'm married that I'm not, that I'm just an idiot like he has treated me.
Q: So in essence you’re saying you're entitled to inheritance from Galen’s parents?
A: Yes.
. In Clement, 292 N.W.2d 799, we affirmed the trial court for including inherited land which had been in the name of the husband for nine years prior to the divorce. In Prentice, 322 N.W.2d 880, we reversed the trial court's refusal to include gifted land into the marital assets although the husband had received the gift prior to the marriage. This was as a result of the wife contributing her earnings to the family's ability to improve the land during the eight years of the marriage. In Balvin v. Balvin, 301 N.W.2d 678 (S.D.1981), we affirmed the trial court's determination that the family farm was gifted to the husband by his parents and, despite the fact the family had lived on it for nine years prior to the divorce, it was not to be considered a marital asset. We did reverse the trial court for failure to include subsequent improvements to the farm in the marital assets. In Buseman v. Buseman, 299 N.W.2d 807 (S.D.1980), we affirmed the award of $21,200 to the wife despite the husband’s protests that he had inherited $60,000 to purchase the family farm. The majority noted the marriage lasted six years and the wife worked long and hard on this farm (including calving) and invested $20,000 of her own earnings for the maintenance of the farm and family.