The sole issue in this divorce case involves the unequal division of proceeds from the sale of the parties’ jointly owned marital homestead. Sharon Dennis appeals from the chancellor’s decision, which was based upon appellee James Dennis’s claim of an oral agreement, to award James the nonmarital funds he contributed toward the purchase of the home. She contends on appeal that the chancellor erred by 1) awarding James a greater interest in homestead property held in tenancy by the entirety, or, in the alternative 2) awarding James a greater interest in marital property without stating the reasons for the unequal division, as required by statute. We affirm the chancellor.
Sharon and James were married in 1986. At the time of the marriage, they both owned homes in Litde Rock. After the marriage, Sharon moved into the home owned by James; her home was subsequendy sold. Sharon testified that she netted approximately $4,000 from the sale, and that those proceeds were used to pay marital expenses.
In 1990, the parties purchased a home in Cabot, Arkansas. Prior to this purchase, James also sold his home in Litde Rock and netted approximately $31,000 as his share of the proceeds. James testified that this money was used for the down payment, closing costs, and moving expenses associated with the purchase of the home in Cabot. According to the testimony, the home in Cabot was titled in the names of “James A. Dennis and Sharon D. Dennis.” After the purchase of the home in Cabot, James and Sharon, pursuant to agreement, each paid one-half of the monthly mortgage payments until they separated in June 1996. After the separation, Sharon remained in the home and made the entire payment during the pendency of the divorce.
At the final divorce hearing on November 25, 1998, Sharon testified first. Her testimony was that the parties had agreed to each pay one-half of the monthly mortgage payments, that she lived up to that agreement, and that they owned the house jointly, in “equal names.” The only testimony offered by Sharon with regard to the agreement between the parties is as follows:
Q. Would you explain to the Court the arrangements which your husband had in regard to the payments that were made, the monthly mortgage payments?
A. The agreement that we had when we purchased the home in 1990 was that my contribution to the house would be half the house payment, and from that point in time, I began making half the house payment.
Q. You owned the house jointly?
A. Owned it jointly.
Q. Equal names?
A. Equal names.
Q. And you each made equal payments?
A. Yes, sir.
James testified after Sharon and concurred that the parties had agreed to divide the mortgage payments,, however he testified that they also agreed that if they divorced he would get the $31,000 back out of the sale of the house, and the rest would be divided between the parties, stating, “That was our agreement as well as she would pay half of the house payment because she was the one that was insistent on buying a new house. I was perfectly happy where I was. But that was our agreement.” When James was cross-examined by Sharon’s lawyer about whether the agreement was put in writing, he stated, “No, we have put nothing in writing as a matter of fact. Any of the things you’ve talked about so far haven’t been in writing. But that was our agreement also because she pressured so much to be there, and was so fanatic about it being her house.” Sharon did not offer any rebuttal to James’s testimony.
The trial court granted James’s request to trace the $31,000 back to him, holding that the $31,000 would be offset by the $4,000 Sharon received from the sale of her nonmarital home, and gave Sharon credit for the reduction of the principal owed on the home from the date of the final hearing until the house was sold. The remainder of any equity in the home was to be divided equally. Sharon appeals from this order.
The issue presented in this appeal deals with the division of property. In reviewing such cases, we affirm the findings of the chancery court unless they are clearly erroneous. Dunavant v. Dunavant, 66 Ark. App. 1, 986 S.W.2d 880 (1999), citing Box v. Box, 312 Ark. 550, 851 S.W.2d 437 (1993). Where matters of credibility are concerned, findings of those in a position to observe the witnesses (in this case, the chancellor), are given great weight. Box v. Dudeck, 265 Ark. 165, 578 S.W.2d 567 (1979). On appeal, we only reverse such a judgment if it is clearly against the preponderance of the evidence. Digby v. Digby, 263 Ark. 813, 567 S.W.2d 290 (1978).
When property is placed in the names of a husband and wife, by an instrument running to them conjunctively, and without specification of the manner in which they take, a presumption arises that they own the property as tenants by the entirety. Dunavant v. Dunavant, supra (citing Boggs v. Boggs, 26 Ark. App. 188, 761 S.W.2d 956 (1988)). In Lyle v. Lyle, 15 Ark. App. 202, 691 S.W.2d 188 (1985), this court stated that when a husband and wife hold property as tenants by the entirety, there arises a presumption of a gift from the party furnishing the consideration. Lyle involved a husband and wife who made a down payment on forty acres and a house that was held as tenants by the entirety. In dividing the proceeds, the chancellor credited each party with the amount contributed toward the down payment on the forty acres. This court reversed and remanded, holding that although the contributions toward the down payment came from separate funds, the forty acres were held as tenants by the entirety, and, in such a situation, a presumption arises of a gift from the party furnishing the consideration.
Although this presumption is rebuttable, it is a strong one. In Ramsey v. Ramsey, 259 Ark. 16, 20, 531 S.W.2d 28, 31 (1975), the supreme court stated the following:
The presumption is strong, and it can be overcome only by clear, positive, unequivocal, unmistakable, strong and convincing evidence, partially because the alternative is a resulting trust the establishment of which, under such circumstances, requires that degree of proof. (Citations omitted.)
In McLain v. McLain, 36 Ark. App. 197, 820 S.W.2d 295 (1991), this court held that the wife failed to overcome the presumption of a gift with regard to stocks, bonds, and securities purchased primarily with funds derived from her separate property, but held jointly, with her husband. The only evidence that the wife offered to rebut the presumption that she intended to make a gift was her testimony that she always thought of the stocks, bonds, and securities as being her property and that her husband was entided to the income or what it could buy only as long as he was married to her.
We find the present case to be distinguishable from Lyle, supra, and McLain, supra. First, the assertion of an oral agreement is not analogous to the claim made by appellee in McLain that she did not “intend” to make a gift. Second, although the issue here is likewise whether the testimony presented by James is sufficient to rebut the presumption, Sharon testified only that the parties orally agreed to divide the mortgage payments, and that they owned the home jointly, in “equal names.” To rebut the presumption, James testified that there was an additional aspect of the oral agreement providing for return of his nonmarital contributions when the home was sold. His testimony was also clear that the agreement was made to overcome his resistance to buying the new house. Sharon did not deny the existence of this aspect of the agreement; her statement that the home was in “equal names” is ambiguous at best and falls far short of a denial of the clear and specific testimony offered by James. Under these circumstances, we cannot say that the trial court was clearly erroneous in finding the testimony presented by James sufficient to overcome the presumption.
Affirmed.
Pittman, Jennings, and Neal, JJ„ agree. Bird and Crabtree, JJ„ dissent.