                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 10, 2014                     517350
________________________________

CHRISTINA A. MYERS,
                      Appellant,
     v                                      MEMORANDUM AND ORDER

THOMAS E. MYERS,
                    Respondent.
________________________________


Calendar Date:   June 6, 2014

Before:   Lahtinen, J.P., Stein, Egan Jr., Devine and Clark, JJ.

                             __________


     Cynthia Feathers, Glens Falls, for appellant.

      Maxwell & Van Ryn, Delmar (Paul W. Van Ryn of counsel), for
respondent.

                             __________


Clark, J.

      Appeal from a judgment of the Supreme Court (Connolly, J.),
entered June 6, 2013 in Albany County, ordering, among other
things, equitable distribution of the parties' marital property,
upon a decision of the court.

      Six years before the parties' marriage in June 2000,
plaintiff (hereinafter the wife) became the sole owner of real
property, which would later become the parties' marital
residence. At the time of marriage, the wife owned the property
free and clear of any liens or encumbrances. In 2005, apparently
in an effort to consolidate debt, defendant (hereinafter the
husband) and the wife jointly applied for a mortgage on the
property. To satisfy the requirements of the mortgage lender,
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the husband's name had to appear on the deed to the residence.1
Thus, on March 31, 2005, the wife executed a deed conveying
ownership of the residence from her alone to both her and the
husband. A mortgage was issued jointly to the parties that same
day.

      In December 2011, the wife commenced this action for
divorce on the basis that the parties' marriage was irretrievably
broken. The parties executed an interim agreement, as well as a
subsequent stipulation and opting out agreement, resolving all
issues but the distribution of the marital residence and the debt
attached thereto, which had amounted to approximately $160,000.
Thereafter, the action proceeded to trial, following which
Supreme Court issued a decision and order finding, among other
things, that the marital residence and its accompanying debt
should be equally divided between the parties. A judgment of
divorce subsequently incorporated Supreme Court's earlier
findings and this appeal by the wife ensued.

      The wife contends that Supreme Court erred in denying her a
separate property origination credit in the amount of $165,000
for the estimated value of the marital residence at the time that
she transferred it to herself and the husband jointly. In
denying such credit, Supreme Court indicated that it was bound by
our prior decision in Campfield v Campfield (95 AD3d 1429 [2012],
lv dismissed 20 NY3d 914 [2012], lv denied 21 NY3d 857 [2013]).
Specifically, Supreme Court referred to the portion of Campfield
that differentiated between a credit for marital property that is
"acqui[red]" from separate property – i.e., by using the proceeds
of the sale of separate property to purchase marital property –
and marital property that originates from the "transmut[ation]"
of separate property – i.e., by transferring the deed of
separately held property into joint names (id. at 1430). On
appeal, the wife urges the overruling of this portion of
Campfield, arguing that it is inconsistent with the general
principles of equitable distribution law.



     1
        Based upon her limited income, the wife was unable to
qualify for a mortgage on her own.
                              -3-                517350

      Unlike the appellant in Campfield, the wife here admits
that the property in question is marital. In particular, she
agrees that the residence became marital property subject to
equitable distribution upon her transfer of the deed into the
parties' joint names in 2005 (see Alecca v Alecca, 111 AD3d 1127,
1128 [2013]; Murray v Murray, 101 AD3d 1320, 1321 [2012], lv
dismissed 20 NY3d 1085 [2013]). Therefore, this case is
distinguishable from Campfield. As such, we need not address the
wife's argument that transfer of the deed was intended "'solely
for the purpose of convenience,'" a consideration that is
relevant only in determining whether property is marital or
separate in the first instance (Currie v McTague, 83 AD3d 1184,
1185 [2011], quoting Kay v Kay, 302 AD2d 711, 713 [2003]).

      However, to the limited extent that Campfield may be read
to limit a court's discretion to award a separate property credit
to a spouse, like the wife, who transmutes separate property into
marital property without changing the nature of the property
itself, it should no longer be followed. As we have subsequently
noted without reference to the way in which a marital asset was
acquired, credits are often given for the value of the former
separate property (see Murray v Murray, 101 AD3d at 1321). We
have also subsequently explained that the decision to award a
separate property origination credit in such a situation is a
determination left to the sound discretion of Supreme Court (see
Alecca v Alecca, 111 AD3d at 1128; Murray v Murray, 101 AD3d at
1321). Therefore, our own jurisprudence subsequent to Campfield
indicates that such credit is not precluded as a matter of law
when separate property has been transmuted into marital property.

      Despite the foregoing, we are nonetheless unpersuaded that
the denial of the wife's request for a separate property
origination credit under the specific circumstances herein
constitutes an abuse of discretion. Supreme Court's thorough
decision properly considered the relevant statutory factors
required of a decision awarding equitable distribution (see
Domestic Relations Law § 236 [B] [5] [d]) and found that "the
overall picture is of the parties engaging generally in a
financial partnership, of which the marital residence, and the
loans thereupon, was simply one agreed-upon portion." In this
regard, a review of the record reveals that the funds received
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from the mortgage, as well as the subsequent refinancing and home
equity loan, enabled the wife and the husband to consolidate
their debts, go on numerous family vacations, make improvements
to the marital residence and, generally, live a lifestyle that
may have been above their means. Notably, the wife's individual
debt was eliminated by the proceeds of a new, jointly-held debt
which, in turn, was primarily paid from the husband's income for
a number of years. Inasmuch as a separate property origination
credit "is not strictly mandated since the property is no longer
separate, but is part of the total marital property" (Murray v
Murray, 101 AD3d at 1321), we cannot say that Supreme Court
improperly denied the wife a credit based upon the entirety of
the record before us. Accordingly, we likewise find no error in
Supreme Court's determination that the marital residence and its
associated debt should be equally divided between the parties.

     Lahtinen, J.P., Stein, Egan Jr. and Devine, JJ., concur.



     ORDERED that the judgment is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
