dissenting. Appellant Verlon McKay and appellee Debra McKay were married on June 8, 1991, and divorced on March 12, 1998. During their marriage, appellant placed appellee’s name on his checking account, making it a “joint account.” Appellant and appellee also maintained separate bank accounts. The funds deposited into the joint account were monthly checks paid to appellant from the Veterans Administration and Social Security Administration. Appellant did not work and these funds were his contributions toward the support of the family. Appellant conceded that additional benefits, based on his marriage to appellee, were paid to him. These additional monthly benefits were placed in the joint account.
During the marriage, the parties used funds from the joint account to pay for groceries, utilities, furniture, boats, and motor vehicles; to create investment accounts; and to repay a $30,000 loan obtained by the parties to partially finance the construction of the home built by the parties during the marriage. Appellant verified that the joint account was the only account from which both parties could write checks, and both parties wrote checks on the account. The appellee wrote approximately 10% of the checks written on the joint account. The appellant removed the balance of $12,800 from the joint account when the parties separated. The chancellor awarded the joint account to appellant.
The parties constructed a home on land acquired by the appellant prior to his marriage to the appellee. Appellant admitted they planned and built the house together and had intended to live there the rest of their lives. A portion of the construction cost of the home, approximately $62,000, was paid from appellant’s separate savings account. The parties financed the remainder of the construction costs by obtaining a $30,000 loan that was secured by a mortgage on a rent house owned by the appellant. Both parties signed the loan agreement, and both were responsible for repaying the debt. The loaned funds were placed in the joint account and then used to pay construction costs. The loan was repaid in full during the marriage with funds from the joint account. The chancellor awarded the appellant the home as his sole property.
Also, the appellant invested in CIFRA stock with funds from the joint account and admitted that the total worth of the investment account was approximately $18,000. Appellant did not establish the value of the account before marriage nor did he establish the amount of money invested in the stock during the marriage. This account was also awarded to the appellant'.
In making these decisions, the court failed to recognize that the account was a joint account by virtue of the appellee’s name being on the account. The appellant placed funds he received during the marriage in the account after he had made the account a joint account. The court also disregarded the fact that appellant received extra benefits based solely on his marriage to the appellee and those funds were commingled in the joint account. After making these rulings, the chancellor, in an inconsistent ruling, divided equally between the parties a houseboat that was purchased during the marriage, even though the houseboat was purchased with money that appellant received through inheritance. In making this award, the chancellor disregarded appellant’s contention that he did not intend to give the appellee a one-half interest in the houseboat, even though appellant established that the title to the boat was in his sole name. The chancellor found that the bill of sale was made in their joint names and, therefore, appellee was entitled to a joint interest in the houseboat.
The law presumes that when property is placed in the names of both husband and wife, the property is held by them as tenants by the entirety. Creson v. Creson, 53 Ark. App. 41, 917 S.W.2d 553 (1996). The law also presumes that a spouse who deposits money in a joint account intends to impart to his spouse a gift of an interest in this money. Id. A party seeking to claim such property as separate property must rebut this presumption by clear and convincing evidence. Id. Clear and convincing evidence to rebut the presumption must be so clear, direct, weighty, and convincing that the fact finder is able to come to a clear conviction, without hesitation, of the matter asserted. Id.
In Lofton v. Lofton, 23 Ark. App. 203, 745 S.W.2d 635 (1988), this court held that once property is placed in the names of husband and wife, without specifying the manner in which they take, there is a strong presumption they own the property as tenants by the entirety, and it takes clear and convincing evidence to overcome that presumption. In Lofton, both marital funds and separate funds were used to purchase certificates of deposit in the names of both husband and wife. The husband’s refusal to concede that the certificates were to be marital property was held insufficient to overcome the presumption. Id.
In McLain v. McLain, 36 Ark. App. 197, 820 S.W.2d 295 (1991), the wife sold property from nonmarital sources for $158,000. She placed this money in a joint account with her husband, where it remained for approximately nine months to a year. They withdrew $125,000 from their joint account to purchase securities. This court held that the wife failed to meet the quantum of proof necessary to rebut the presumption of a gift, as the only evidence she presented was that she always thought of the securities as her property. The court found the length of time the money remained in the joint account to be significant.
In Mathis v. Mathis, 52 Ark. App. 155, 916 S.W.2d 131 (1996), the parties had been married for eight years when Mr. Mathis retired from his job of twenty-eight years. In order to obtain his retirement benefits in a lump sum, Mrs. Mathis was required to sign a release. She agreed to sign the release only after Mr. Mathis agreed to place the money in their joint account. He did so for less than sixty days, but then withdrew the funds and placed them in IRAs under his sole name. He testified he never intended Mrs. Mathis to have one-half of his total benefits, but only one-half of the benefits that accrued during their eight-year marriage. This court found it significant that both parties had access to the funds during the several weeks time period. Chief Judge Robbins, writing for this court, affirmed the chancellor’s decision finding the retirement funds to be a tenancy by the entirety even though the funds had been transferred to the sole name of Mr. Mathis after they had remained in the joint account for that short time.
In Creson, supra, the husband inherited approximately $27,000 and placed it in a joint account with his wife. The wife made neither deposits nor withdrawals from the joint account. Subsequently, he used $22,000 from the joint account to obtain refinancing on their marital residence. Even though his wife agreed this money would be repaid to him when the residence was sold, this court upheld the chancellor’s finding that the inherited money became joint property when Mr. Creson deliberately placed it in the joint account. In Creson, as in the present case, money from the joint account was used to purchase other items, such as stereo equipment. This court also held in Creson that the funds placed in the joint account and the purchases made from the joint account were marital property.
This court has consistently upheld the strong presumption that property placed in the names of both spouses is jointly owned. There have been only two cases where the court has held that the presumption was overcome. In Jackson v. Jackson, 298 Ark. 60, 765 S.W.2d 561 (1989), the court held the presumption was rebutted where the wife deposited funds from her separate stock account into a joint account with her husband and then immediately wrote a check to her sister for the amount deposited to purchase the sister’s interest in real estate. The court noted that the wife had rejected the husband’s suggestion that they buy the property together and that the wife had immediately withdrawn the money from the joint account to purchase the real estate in her name alone. The court found it significant that the funds used to purchase the real estate interest were directly traceable to the wife’s nonmarital stock. Also in Cole v. Cole, 53 Ark. App. 140, 920 S.W.2d 32 (1996), this court held that funds held in a joint account were the sole property of the wife. The evidence showed only money acquired from the wife’s separate property was deposited in the account. Further, the husband had written only four or five checks on that account and he did so only after receiving his wife’s permission. The parties had another joint account where they deposited their wages and used those funds to pay their bills.
If the placing of both names on the bill of sale to the houseboat purchased by inheritance money created a joint interest in the boat, as found by the chancellor, surely placing both names on a joint bank account created a joint interest in the account. Several facts weigh in favor of this conclusion, such as, the joint account was maintained for several years and both parties exercised the right to withdraw funds from the account. The joint account was used to repay the $30,000 construction loan used to complete construction of the house where the parties resided, and was used to pay utilities, groceries, furniture, appliances, and various items for the house. This was the only joint account held by the parties.
The evidence presented by the appellant to refute the presumption of a gift was that the appellee had her own checking account and she wanted to be an independent woman. Appellant testified that appellee told him when she wrote checks on the joint account because “it was understood that that account was mine and hers was hers.” This explanation does not address appellant’s reason for setting up the joint account, nor does it address his maintaining a separate account in his sole name. This was the only account the parties had where both parties could write checks. He gave no other explanation of why he continued to deposit funds in the joint account, but admitted she had access to the account and had written 10% of the checks on the account. This was the sole testimony relied upon by the court to be so clear, direct and convincing as to overcome the presumption that a gift was created.
In determining whether the presumption of a gift was rebutted, the majority ignored standards set out in the above-cited cases. The joint account and property purchased by funds from the joint account are marital property and should be divided equally.
I therefore dissent from the prevailing opinion.