The husband further pleads that he does not have an appropriate forum in which to adjudicate the matter of visitation. However, while the Nevada decree provides his wife with <mask>, it affords him reasonable visitation on making support payments and specifically reserves jurisdiction to make future orders for the support and maintenance of the minor children. It would thus appear that there is a forum in which the husband may seek continued visitation rights. Moreover, Nevada is the proper forum for this purpose since the children reside in and go to school in Nevada and if the concept of the State as parens patriae is to be applied, the only State which can presently claim such a role is Nevada. The husband’s assertion that if he were to seek visitation rights in Nevada the wife would remove there*859from to thwart his efforts represents unsubstantiated fears; his claim that he would be put to undue expense if required to bring Rhode Island lawyers and others to Nevada is questionable as such testimony could be submitted to the Nevada courts in the form of depositions. In any case, the critical issue of the wife’s bona fide residence in Nevada at the time the divorce was granted would appear to involve testimony from persons who live in Nevada since they would be best able to testify as to the wife’s then actual residence.


A second consideration warranting denial of prehearing depositions in this case also involves the best interests of this infant child. Without in any fashion prejudging the outcome of this custody battle, it is conceivable that an award of joint custody or an award of <mask> with visitation to the noncustodial parent will result. In either event, this young child will be exposed to the less than charitable feelings, which these parties have toward one *439another as reflected in the affidavits submitted on the underlying application for a change in custody. To the extent that prehearing depositions of the plaintiff and her current husband will add to the unfortunate bitterness and tension between these parties, all to the detriment of this young girl, such should be discouraged and avoided absent a compelling reason.


Furthermore, for the most part, courts are reluctant to grant pretrial discovery in child custody matters (46 NY Jur 2d, Domestic Relations, § 298). It is, however, a generally accepted principle that a party to a contested custody proceeding places their physical and mental condition in issue by seeking custody (Rosenblitt v Rosenblitt, 107 AD2d 292 [1985]; Proschold v Proschold, 114 Misc 2d 568 [1982]). Where both parties seek <mask> of the infant issue of their marriage, a parent’s health is a relevant yet certainly not the only consideration (Matter of Darlene T., 28 NY2d 391 [1971]).


In Bezio v Patenaude (410 NE2d, at p 1215) where a lesbian mother was opposed by the children’s guardian in a custody case, the Trial Judge reached the conclusion that " 'a Lesbian household, creates an element of instability that would adversely [a]ffect the welfare of the children.’ ” The Supreme Judicial Court of Massachusetts, the State’s highest court, reversed, stating that the Judge’s finding was insufficient to support the Judge’s conclusion that custody should remain in the guardian. The record did not support an inference that the mother’s lesbianism would render her unfit to further her children’s welfare. Another Massachusetts case (Doe v Doe, 16 Mass App 499, 452 NE2d 293 [1983]) reached the conclusion that a mother’s homosexual relationship did not preclude granting of joint custody of her child to her. There, the court found no evidence to show that the mother’s homosexual lifestyle would adversely affect the nine-year-old male child. In Medeiros v Medeiros (8 Fam L Rptr 2372 [1982]), a Vermont court, in determining whether the homosexual mother or heterosexual father would better serve the interests of the children, was unable to find that either of the parties has not (been) or would not be a proper custodial parent. Since the two boys, ages 8 and 11, were primarily taken care of by the *329mother, who provided them with emotional support throughout the marriage and during the period of separation, and since the boys were thriving in their mother’s care at the time of the court’s decision, the court awarded <mask> of the children to the defendant mother. The court found that the mother’s homosexuality presented no substantial risk of harm to the children. Two years later, the father, who had married since the divorce, attempted a custodial change asserting that he was able to provide a better home than the mother. The mother moved to dismiss the father’s motion for a change of custody. The motion was dismissed after a short, 13-minute hearing. (See, Judge’s Log, Medeiros v Medeiros, Vt Super Ct, Bennington County, Nov. 26, 1984.) Similar results can be found in other neighboring States. See, DeBoise v Robinson (No. C-9104 Del Fam Ct, New Castle County, Nov. 17, 1980), cited in Rivera (op. cit, at 355) where a lesbian mother was awarded custody and the court imposed no restrictions on her living arrangement with another woman, and M.P. v S.P. (169 NJ Super 425, 404 A2d 1256, supra) where a mother’s homosexuality and accompanying embarrassment to children were held not proper grounds for removal of custody. On the West Coast, the State courts of Washington and California have provided guidance in this area of the law. In Matter of Marriage of Cabalquinto (100 Wn 2d 325, 669 P2d 886 [1983]) the parties were married, had a son, and later divorced in Colorado. The divorce decree granted custody to the heterosexual mother with liberal visitation rights to the homosexual father. The mother remarried and moved to Washington and the father moved to California where he lived with a homosexual lover. The father decided he wanted his young son to visit in California and the mother refused. The father moved in a Washington State court to have his Colorado visitation rights enforced. The Trial Judge, in an oral opinion, refused to grant visitation in California stating a strong antipathy to homosexual living arrangements. " '[A] child should be led in the way of heterosexual preference, not be tolerant of this thing [homosexuality] * * * it can[not] do the boy any good to live in such an environment. It might do some harm.’ ” (Matter of Marriage of Cabalquinto, supra, p 328, p 888.) In remanding the case to the lower court for further consideration, the high court of Washington was emphatic: "We now make specific the rule of law which was subsumed in the decision in Schuster v. Schuster, supra: homosexuality in and of itself is not a bar to custody or to reasonable rights of visitation. This *330rule is consistent with the decisions of other state courts” (p 328, p 888). The court said that there was no evidence that a visitation of substantial periods in the summer months would endanger the physical, mental, or emotional health of the child. Visitation of such a duration was seen as reasonable and something which must be determined with reference to the needs of the child rather than the sexual preference of the parent. The California case of Batey v Batey, reported about in the New York Times, July 1, 1986, is a complex homosexual father-child custody case which involved proceedings in Colorado and California. Frank Batey, a homosexual, and Betty Lou Batey, a fundamentalist Christian, parents of a son, Brian, were divorced in California in 1980 and Betty Lou was given custody of Brian, then age nine. Frank was granted liberal visitation. In 1982 custody was changed to Frank, primarily because Betty Lou denied Frank visitation. Eleven days after the custody change, Betty Lou vanished with Brian for 19 months until she was found in Colorado in 1984. When she refused to produce the child, she was jailed for contempt. Colorado returned Brian to California and, in a complex case which involved kidnapping, contempt, and custody, San Diego County Superior Court Judge Judith McConnell determined that neither parent should have custody but only visitation. Judge McConnell decided that Brian would be in "grave danger” with the mother, who had caused him to form strong views opposing his father’s homosexuality and who had failed to provide him with any education during the 19-month abduction. The Judge also decided that since the boy’s views about his father were so deeply entrenched, a temporary foster home was in his best interest. Finally, at a closed hearing on June 18, 1986, Judge McConnell awarded Frank Batey custody of Brian, now age 15. Judge McConnell said that the father was better able to meet the needs of the boy.


At times, it appears the trial court accepted this description. For instance, its August 31, 2015, ruling stated: "The sole issue before the Court is the characterization of Huddleston Crane Services, Inc. and its wholly owned subsidiary, HCS Mechanical, Inc. as community property or as David's <mask>." In contrast, the court's March 2016 judgment uses less specific language to describe the relationship of the two corporations. It refers to David's 50 percent ownership interest "in Huddleston Crane Services, Incorporated, and its related entities, specifically including, HCS Mechanical, Incorporated." These documents and the other evidence in the record establish that H.C.S. Mechanical, Inc. is not a subsidiary (wholly owned or otherwise) of Huddleston Crane Services, Inc. Instead, both corporate entities are owned by David and Noerr, each owning 50 percent of each corporation's outstanding shares. There is no evidence in the record indicating the source of H.C.S. Mechanical's capital.


We distinguish the facts of the instant case, as well as those of Brandes and Somps , from In re Marriage of Zaentz (1990) 218 Cal.App.3d 154, 267 Cal.Rptr. 31 ( Zaentz ), a case Wife believes stands for the proposition that the efforts of other people should not factor into the trial court's apportionment decision. In Zaentz , the husband, through a production company founded prior to marriage, entered into an agreement during marriage to produce the movie "Amadeus," which became a critical and financial success. ( Id . at pp. 158-159, 267 Cal.Rptr. 31.) Since the profits contractually inured to the husband's <mask> business, he argued wife had no right to any part of the money. ( Id . at p. 159, 267 Cal.Rptr. 31.) The trial court disagreed; "In awarding wife an equal share of the community interest ($ 300,000), the court underscored the evidence of husband's unique value to SZC in producing 'Amadeus' and the scope of the community's and husband's investment in 'Amadeus'...." ( Id . at p. 162, 267 Cal.Rptr. 31.)


This conclusion and analysis would comport with the conclusion reached by the Fourth Department in a similar situation. In Forcucci v Forcucci (83 AD2d 169) property acquired prior to the decree of separation was in issue. The court ruled that (p 172): "[W]hat assets constitute marital or <mask> and what distribution of them is appropriate are matters of fact to be resolved in the first instance by the trial court in the sound exercise of its discretion after considering *335all the relevant facts and circumstances. The prior judgment, and the parties’ conduct pursuant to it, are to be considered along with any other significant factors.”


If nothing more had taken place than is above stated it is plain that C would be sold first and B second. But after the last named conveyance Eliza and Cornelia gave their bond charging their <mask> to Van Loan, and secured it by a mortgage executed by both of them upon piece 0. The bond and mortgage are now held by-,.


Based on all of the circumstances, plaintiff is granted exclusive use and occupancy of the marital home until the earliest occurrence of either the youngest child attaining the age of 18 or becoming sooner emancipated, or the plaintiff’s remarriage, at which time the house is to be listed for sale at market value. Upon the sale plaintiff shall be paid a <mask> credit of $19,500. The remaining proceeds shall be divided equally between the parties subject to any portion of the distributive award and other sums awarded to plaintiff herein that remain outstanding at the time of the sale, which shall be paid to plaintiff from defendant’s share of the sale proceeds.


Following the trial, the court issued a 31-page statement of decision, detailing the many rulings which comprised its judgment. With respect to the issue of the disability insurance policy, the court pointed out the parties had originally purchased the policy because it was required by a lender. It found their intention in doing so was to replace Bryan's earnings, rather than to provide for their retirement, and that intention never changed. The court also noted "the parties had invested in other assets (income producing realty) anticipating future retirement, had life insurance, and had IRA accounts." Based upon those findings, the court concluded the post-separation proceeds of the disability policy were Bryan's <mask>.


In making her claim for equitable distribution of his' pension, plaintiff contends that because the moneys in the pension were accrued while the couple was married, the pension should be considered marital property. Defendant argues that because the pension has matured and he has been receiving the money, it is to be treated as his income and thus, <mask>.


The house was purchased in 2007 for $147,000 and paid for in full with money Wife inherited from her father. Later, the couple took out two home equity loans secured by the house. One loan was used to pay community debts, make improvements to the residence, and to invest in the couple's business. The other was used to pay the taxes on the house. The house was sold shortly after Husband and Wife separated for $177,000. After paying off the mortgages, the sale netted $34,800.57. Those proceeds were held in trust pending trial. It is clear from the record that there was considerable confusion as to characterization of the home. Wife claimed that the house was <mask>. She alternatively sought reimbursement for the separate property funds that she used to purchase *256the house. Husband argued that the house "became" community property when the home equity loans were acquired. The trial court quickly dispensed with this erroneous position. Community indebtedness secured by separate property do not convert separate property to community property. Husband made no argument that the Wife had "gifted" a portion of the home to him when the deed was purportedly taken in joint names,8 and again the trial court correctly advised counsel that had a gift occurred, the home would not be community property; a one-half interest would belong to the separate estate of each spouse. Simply stated, the home could never have been community property. The community estate may have had a claim for reimbursement, but Husband did not opt for that remedy. And he admitted at trial that the home was fully purchased with Wife's inheritance. We overrule Issue Five.


To buy the sixty-nine shares of stock after the deceased married in 1877, the purchase price of which was $3,450, the deceased added to the dividends accruing from the stock the sum of $510 up to the time the last stock was purchased, and during the same period drew out from the dividends the sum of $242. If we assume that the $510 paid in be community property, it still leaves eighty-nine and four-fifths shares of stock as <mask>, and it is admitted that thirty shares of stock were pledged to make part of the purchase price.


The law in our state commenced with the cautious and protecting rule, that a married woman was only to be treated as a single woman in this respect, as far as the instrument which gave her <mask> endued her with the powder of an owmer. Then' follows the maxim sanctioned by the court of errors, that she was to be considered as absolute owmer, except so far as expressly limited and restricted in the exercise of the ordinary rights of owmership.


Upon the trial the plaintiffs relied for a recovery upon the assumption that the defendant created a charge upon her <mask>, as security for the payment of the price of the goods sold. The referee has decided, as matter of fact, that no such charge was created, and his decision should not be reversed, unless the facts show that the conclusion which he has drawn from the evidence is clearly erroneous. It is not sufficient lor us to be satisfied that the defendant promised to pay for the goods, and that she made representations in regard to her separate property, and the rents which she expected to receive therefrom. All this may have influenced the plaintiffs in making the sale, yet it does not follow that a charge upon her separate estate has been thereby created. We are referred to the case of Conlin v. Cantrell (64 N. Y., 217), with apparent confidence, on the part of the appellants. Some of the features of that case are similar to those of the one we are considering; but others, which were mainly relied upon in deciding the case referred to, are found directly the reverse in this: In that case the wife lived separate and apart from her husband, and supported herself and children, and the work was done for her and the children, under a promise to pay therefor when rents were received from a separate estate ; but in this case, as has been before remarked, the defendant lived with and was supported by her husband. Although a charge may be created by a married woman upon her separate estate without a writing (Maxon v. Scott, 55 N. Y., 247), yet the evidence should be very clear and explicit, showing an intention to create the same by parol, before it should be declared by the court. A married woman might talk very freely about her separate estate, and of her intention to see that a debt should be paid, yet not have the remotest idea that she was creating an incumbrance upon her separate property. In this case the referee, from all the facts and circumstances, has determined that no such charge was created, *543and we think his conclusion is justified by the evidence, and should be sustained. (Eisenlord v. Snyder, 71 N. Y., 45; Weir v. Groat, 4 Hun, 193; Baker v. Lamb, 11 id., 520.)


In light of the suggestions raised by the legislative language and history, and the strong policy -- advanced by both the UFTA and section 911 of the Family Code -- of protecting the rights of creditors from fraudulent transfers, we conclude that the Legislature must have intended that UFTA can apply to premarital agreements in which the prospective spouses agree that each spouse's earnings, income, and property acquired during marriage will be that spouse's <mask>. The policy considerations in favor of applicability of the UFTA are especially strong in this case, where the agreement provides that all earnings and income, and property acquired with those earnings and income, dating back to the date of marriage will become community property when certain premarital debts no longer are enforceable, and where the agreement allows the debtor-spouse joint access to the non-debtor-spouse's earnings and income that are deposited in a joint account.


While it may be that a title or label is not "controlling" where specific provisions of the writing dictate a definite interpretation, it is not true that the characterization of a transfer in a deed's title is irrelevant to the express declaration inquiry. Thus, in In re Marriage of Kushesh & Kushesh-Kaviani 27 Cal.App.5th 449, 238 Cal.Rptr.3d 174, the court reasoned that an " 'INTERSPOUSAL TRANSFER GRANT DEED' " presented a better case for finding an express declaration than the grant deed in Bibb , because "not only did the writing use the verb 'grant'-the main point of Bibb-but the heading added the words 'interspousal'-denoting a spouse-to-spouse transaction-and 'transfer grant'-denoting that whoever was doing the granting was actually transferring something out of that person's estate." ( Marriage of Kushesh, at pp. 454-455, 238 Cal.Rptr.3d 174, italics added.) Absent an unambiguous statement that the transfer would change the character or ownership of Avonoak, the document's title makes it reasonable to entertain the possibility that Richard executed the deed for the purpose of making only a "Trust Transfer." (See Barneson, supra, 69 Cal.App.4th at p. 591, 81 Cal.Rptr.2d 726 ; Starkman, supra, 129 Cal.App.4th at pp. 662, 665, 28 Cal.Rptr.3d 639 ; cf. Lund, supra, 174 Cal.App.4th at pp. 51-52, 94 Cal.Rptr.3d 84 [provision stating " '[a]ll of the property, real and personal, held in the name of Husband having its origin in his <mask> ... is hereby converted to community property of Husband and Wife' " was sufficient to meet express declaration requirement, notwithstanding "recitals ... indicating the agreement was executed for 'estate planning purposes' "].)


A party may not split a cause of action in order to circumvent the $3,000 jurisdictional limit applicable to a small claims action (see Hartley v Paul Props., 88 Misc 2d 205 [Binghamton City Ct 1976, Vitanza, J.]; cf. Board of Mgrs. of Mews at N. Hills Condominium v Farajzadeh, 185 Misc 2d 353 [Nassau Dist Ct 2000, Gartner, J.]). True, each plaintiff in this case is a separate person contributing <mask> to a joint *259venture, but each nonetheless sues as part of that joint venture, a concept in law akin to that of a partnership, and one that is thus to be regarded as having the same liabilities and rights as a partnership (see Forman v Lumm, supra). As with a member of a partnership, a joint venturer has no personal cause of action against a third party for recovery of a debt owed the joint venture, and he or she must bring the action against the debtor for the benefit of the joint venture (see Credit Francais Intl., S.A. v Sociedad Financiera de Comercio, C.A., 128 Misc 2d 564, 582 [Sup Ct, NY County 1985, Greenfield, J.]; cf. Kirschbaum v Merchants Bank, 272 App Div 336 [1st Dept 1947]; and see Partnership Law § 115). The fact that joint venturers have agreed to share in a particular manner money recovered in an action brought for the benefit of the joint venture does not work to confer subject matter jurisdiction it does not otherwise have on the court hearing the claim (cf. Matter of Fry v Village of Tarrytown, 89 NY2d 714 [1997]; see also Cuomo v Long Is. Light. Co., 71 NY2d 349 [1988]).


III. The Trial Court Did Not Abuse Its Discretion by Denying Appellant’s Motion in Limine Patrick also contends the trial court erred by denying his motion in limine and allowing Barbara’s heirs to change theories after the close of fact discovery. We disagree. Barbara’s heirs originally asserted the PMA had been revoked, in part because the original could not be located. However, in January 2020, the attorney who prepared the PMA provided a copy of the original, along with a declaration certifying the document. In a deposition that same month, a rebuttal expert for Barbara’s heirs opined, in response to questions asked by opposing counsel, that an asset taken solely in the name of one party would not fall under the joint title provision of the PMA. Approximately 10 months later, on the eve of trial, Patrick asserted, in a motion in limine, that the rebuttal expert had presented a new theory after the close of fact discovery. Based on that contention, he asked the court to exclude “any evidence or argument to the effect that (i) although the express purpose of the [PMA] was to comprehensively ‘defin[e] their respective property rights following their contemplated marriage’ (Trial Ex. 1, p. 1), somehow it failed to address a circumstance where one spouse took title to an asset solely in his or her name, as happened with respect to the [F&S] stock (where Terence Fitzgerald took title alone); and (ii) as a consequence, statutory presumptions as to whether assets are community or <mask> were left undisturbed.” He also asked the court to exclude the expert as not timely disclosed and not the subject of proper rebuttal. The trial court excluded the expert but concluded the theory was “a matter of contract interpretation and argument” and that “[t]he failure to


*694Family Code section 852, subdivision (a)1 ( section 852(a) ) provides that a "transmutation," or an interspousal transaction changing the character of community or <mask>, "is not valid unless made in writing by an *509express declaration " by the adversely affected spouse. (Italics added.) In Estate of MacDonald (1990) 51 Cal.3d 262, 272 Cal.Rptr. 153, 794 P.2d 911 ( MacDonald ), our Supreme Court held that a writing satisfies the "express declaration" requirement only if it states on its face that "the characterization or ownership of the property is being changed." ( Id. at p. 272, 272 Cal.Rptr. 153, 794 P.2d 911.) The MacDonald court also made clear that its construction of section 852(a) precludes the use of extrinsic evidence to prove an ambiguous writing effected a transmutation. ( Id. at p. 264, 272 Cal.Rptr. 153, 794 P.2d 911 ; In re Marriage of Benson (2005) 36 Cal.4th 1096, 1100, 32 Cal.Rptr.3d 471, 116 P.3d 1152 ( Benson ).)


The husband, in consequence of t'he statute, has no control over the <mask> of his wife; and cannot prevent her from asserting, in any form known to the law, her legal rights and claims in respect thereto. Not having the power to prevent or control siich acts, I am unable to discover any logical reason why he should be punished for their consequences. The complaint was properly dismissed as to the husband, and the motion for a new trial must therefore be denied.


#The important question presented in this cause is, as to the construction and effect of the marriage-settlement. On this point, after much labor and reflection, I am compelled, notwithstanding my unfeigned and habitual deference for his great learning and distinguished talents, to dissent from the opinion of his honor the chancellor. He admits the rule, “ that a married woman is considered in equity, with respect to her <mask>, as a feme sole; and is held to have an absolute dominion or power of disposition over it, unless her power of disposition be restrained by the deed or will under which she became entitled to it.” And as to the rule of construction, he also admits, that “ the weight of book-authority, and especially of the writers who have treated on this branch of the law, is against his conclusion and that “ they seem to hold, that there must be an express restriction upon alienation, either absolutely, or in some other mode than the one mentioned, or the wife will not be bound.” The chancellor says, “ Such strong aversion to the wife’s independent enjoyment of her separate estate, manifested so early in the history of the cases, may have given a permanent tone and color to the doctrine of the court.” With great respect, I ask, in reply, May it not rather be said, that the “ tone and color” of the modern decisions are accommodated to the excessive refinements of society, and the artificial innovations, in regard to the rights and duties of good old English matrimony ? In the language of Sir Wm. Blackstone, “ By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the mar*455riage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection and cover she performs every thing.” I confess, that I love and venerate the primeval notion of that mystical and hallowed union of husband and wife: when “they twain became one flesh;” when they “ forsook father and mother, and clave to each other” with unreserved confidence. Marriage, in that old fashioned sense, is the purest source of domestic joys, and the firm foundation of social order.


Section 16 of the Civil Eights Law, so far as pertinent, provides as follows: ‘ ‘ Any person who shall be injured in person, property, means of support, or otherwise by any intoxicated person, or by reason of the intoxication of any person, whether resulting in his death or not, shall have a right of action against any person who shall, by unlawful selling to or unlawfully assisting in procuring liquor for such intoxicated person, have caused or contributed to such intoxication; and in any such action such person shall have a right to recover actual and exemplary damages. In case of the death of either party, the action or right of action given by this section shall survive to or against his or her executor or administrator, and the amount so recovered by either wife or child shall be his or her sole and <mask> ”.


The fact that Dalia took no action for so many years with regard to the SPA demonstrates that she too regarded the arbitrator’s decision to be a binding determination that she had no claim to the instrument. It was only after Arie sued Sagi on the SPA and the Appellate Division rendered its decision, with its confusing sentence referencing the coin toss, that Dalia was suddenly motivated — after close to a decade of inactivity — to demand and then proceed with the coin toss. The effort, however, was to no avail. Whatever happened when Sagi’s attorney flipped a coin into the air on January 5, 2015 was of no force and effect. This is because the SPA was not, and is not, properly the subject of such a procedure. Although it is a nonliquid asset, the record establishes that it is not a marital asset; instead, the SPA is Arie’s <mask> and thus not susceptible to division between the parties by coin toss or other means.


We find Estate of Dye (2001) 92 Cal.App.4th 966, 112 Cal.Rptr.2d 362 instructive. There, the decedent's will provided the estate be given to his wife as her " 'sole and <mask>.' " ( Id. at p. 979, 112 Cal.Rptr.2d 362.) But the decedent's wife predeceased him. ( Id. at p. 970, 112 Cal.Rptr.2d 362.) Decedent's son subsequently claimed the phrase " 'sole and separate property' " was ambiguous and argued two "adopted-away" sons should not inherit. ( Id. at pp. 979, 970, 112 Cal.Rptr.2d 362.) The son attempted to introduce evidence demonstrating his father believed his relationship to the adopted-away children had been severed and indicated the remaining son would inherit the estate. ( Id. at p. 977, 112 Cal.Rptr.2d 362.) The court found such evidence did not create an ambiguity "because they fail to raise a semantically plausible alternative candidate of meaning." ( Ibid . ) The court further explained: "When courts speak of using extrinsic evidence to rebut a presumption, this means evidence that a decedent's expression in a will actually has a different meaning than first appears, or a "latent" ambiguity. [ Estate of] Dodge [ (1971) 6 Cal.3d 311, 98 Cal.Rptr. 801, 491 P.2d 385 ] is a good example. Lawyers use 'personalty' or 'personal property' in contrast to 'realty' and 'real property.' However, some people use 'personal property' to mean tangible personal effects, such as clothing, jewelry and so forth. Thus, when a will gives the 'personal property' to somebody, somebody else could come in with evidence outside the corners of the will to show what the decedent thought the word meant. [Citation.] ... [¶] But an ambiguity, whether patent or latent, must reside in the will." ( Id. at pp. 977-978, 112 Cal.Rptr.2d 362.) The court concluded the son's position "is not a reasonable construction of the language, but an effort to insert new language and ideas into the will. 'The instrument is silent upon the possibility of the wife predeceasing the testator. If he had contemplated a substitutional gift over he should have made such intention clearly appear.' [Citations.] 'Therefore, if having ascertained in the instant case that the provisions of the will are not reasonably susceptible of two or more meanings, we conclude that the only meaning to which the words expressed by testatrix are reasonably susceptible results in intestacy, we must give effect to her will accordingly.' " ( Id. at p. 979, 112 Cal.Rptr.2d 362 ; accord Citizens Business Bank v. Carrano (2010) 189 Cal.App.4th 1200, 1207-1208, 117 Cal.Rptr.3d 119 [court cannot rewrite trust to attach restrictions to a term the settlors did not expressly include, especially when the term was not ambiguous]; Estate of Canfield (1967) 256 Cal.App.2d 647, 654, 64 Cal.Rptr. 195 ["The fact that fate, as it often does, thereafter proved *687decedent to have been mistaken in making this supposed assumption [ (that father would predecease his young children) ] does not authorize a trial or appellate court to rewrite a will under the guise of construing it to determine what the testator might have intended if he had survived to a later date and had written it in the light of subsequent developments."].)


The Lucas court remanded the matter to the trial court for further proceedings and stated that if the trial court were to find that the residence was entirely community property on remand, the wife would be barred from seeking any reimbursement for her <mask> contributions to the property, absent an agreement providing for such reimbursement. ( Lucas , supra , 27 Cal.3d at p. 816, 166 Cal.Rptr. 853, 614 P.2d 285.) The Lucas court explained that a spouse who uses separate property for community purposes during marriage is presumed to have intended a gift to the community. ( Ibid. )


Decedent’s will is short and simple in form: First, he gives to his wife $20,000, together with all the household furniture and other personal property in their dwelling, excepting certain family portraits and pictures to be selected by his daughter. Second, he gives to his daughter all of the rest, residue and remainder of his estate, both real and personal, and wherever situated. Fourth, he solemnly declares that all his estate therein devised is his <mask> and was the community property of his first wife and himself.


The parties owned a residence in Mineóla, New York, that, pursuant to the agreement, was sold and the proceeds were equally divided. The parties agreed that wife would maintain ownership of the parties’ then new Nissan Versa, which was fully paid for utilizing funds from the parties’ home equity line of credit; husband kept the lease on the 2008 Nissan Sentra. The parties agreed to sell their principal asset, the marital home, upon the high school graduation of their youngest child and equally divide the proceeds. This equal division is to take place notwithstanding husband’s potential claim for a <mask> credit stemming from his premarital ownership of the parties’ prior residence, which was sold and the proceeds of which were used to purchase the current marital residence.


The parties did not ask the trial court to characterize the stock Husband received for DigiDesign; he earned that stock prior to marriage; clearly it was his <mask>.4 (See In re Marriage of Dekker (1993) 17 Cal.App.4th 842, 850, 21 Cal.Rptr.2d 642 ( Dekker ).) "When a spouse's personal efforts increase the value of his or her separate property business, 'it becomes necessary to quantify the contributions of the separate capital and community effort to the increase,' because the 'community is entitled to the increase in profits attributable to the community endeavor.' [Citations.]" ( Brandes , supra , 239 Cal.App.4th at p. 1472, 192 Cal.Rptr.3d 1.) Thus, the parties asked the trial court to apportion the post-marriage increase in the value of Husband's DigiDesign stock between his separate estate and the community. The key issue at the bifurcated trial was which method of apportionment to use-the Van Camp method, advocated by Husband, or the Pereira method, advanced by Wife.


The court did not improvidently exercise its discretion in directing that the marital assets, including the marital residence, be distributed evenly between the plaintiff and the defendant, in consideration, inter alia, of the income and property of each party at the time of the marriage and at the commencement of this action, the duration of the marriage and the age and health of both parties, the plaintiff’s waiver of maintenance, and the plaintiff’s contribution to the marital property both directly as a wage earner for a period of time and indirectly as a spouse, homemaker, and mother of three children (see, O’Brien v O’Brien, 66 NY2d 576; Majauskas v Majauskas, 61 NY2d 481). It was also not an improvident exercise of discretion to refuse to grant the defendant a credit for his alleged <mask> contributions on the ground that the defendant’s claims were not established by clear and convincing evidence (see, Waldman v Waldman, 196 AD2d 650; Cusimano v Cusimano, 149 AD2d 397; Lischynsky v Lischynsky, 120 AD2d 824; Bizzarro v Bizzarro, 106 AD2d 690).


"The Court: Okay, let me ask you some questions, and I'm going to tell you in a moment why I think it might be significant. In your mind, did you see bonus different than stock options? Ms. Cleary says she sees them as different concepts. "[Tonya]: Yes, definitely. "The Court: Why 'definitely'? Why is that different? *224"[Tonya]: Because a bonus is something you get every year, you have to cash them out. Stock option is something you got every year. "The Court: But at the time you entered into this agreement, 35 percent of any bonuses, you were thinking the year-end cash bonus? "[Tonya]: Yes. "The Court: And you were not thinking of stock options, exercising stock options? "[Tonya]: I asked about the stock options. I don't-I was-only thought that I could get the ones that were awarded during the marriage, that was my understanding. "The Court: All right. I want to be clear on this then. 35 percent of gross bonuses that you agreed to, in your mind, you felt that was 35 percent of the year-end cash bonus as opposed to 35 percent of the stock options; is that correct? "[Tonya]: Well, I knew there was a difference, but as I tried-we had used cash from stock options to live the last seven years. "The Court: Well, that wasn't my question. I'm trying to go into your state of *920mind at the time you signed this agreement, when you agreed to 7500 per month, plus 35 percent of gross bonuses, did you think the gross bonuses were limited to the year-end cash payment? "[Tonya]: Yes. "The Court: Okay. All right. "[Tonya]: I was not aware I could get the other." Judge Pollack issued a written decision on the RFO in February 2012. He found that Tonya was aware Donald had accepted a new position and a relocation package at the time of the agreement, such that any related payments Donald received would have been included in the MSA as arrears. Similarly, he concluded that any amounts due to Tonya related to stock options Donald received between separation and August 15, 2009, would have been included in the MSA as arrearages, as the MSA divided the options received before the date of separation. Based on her testimony at trial, the court found that Tonya understood the term "bonus" in the MSA to refer specifically to the year-end cash bonus Donald typically received, and not the *225stock options. Thus, by terms of the parties' own agreement, stock options received after entry of the MSA were Donald's <mask> and were not bonus income.


“Property acquired before marriage is not a product of the marital partnership and does not constitute marital property. However, wedding gifts are held to be marital or joint property, despite the source, unless the gift was something that could be used only by one spouse or was specifically earmarked as exclusively intended for one spouse [citations omitted]. Thus, it may be that at least certain types of property, acquired before the marriage but in contemplation thereof, may be ‘marital’ and not <mask>.


A trial was held over two days in July and August 2015. In October 2015, the circuit court entered its letter opinion deciding the case. After the court ruled that the pleadings would be amended to conform to the proof, the court granted Evelyn a divorce and distributed certain real property to Jim and Evelyn as his and her <mask>. The court ordered all marital property, real and personal, with the exception of a marital mineral interest, sold and the proceeds divided equally. The court found that any earnings and retirement benefits Evelyn had earned from her employment with the United States Postal Service (USPS) were marital property and awarded Jim half of those benefits, as well as any retirement benefits Evelyn had drawn during the pendency of the divorce. The court awarded Evelyn and Jim a judgment against Greg for $97,500 based on an oral agreement to buy five unspecified acres and a house from Jim and Evelyn. Evelyn and Jim were each awarded one-half of that amount. The court further entered judgment against Greg in favor of Evelyn and Jim for money used to pay a truck loan, with Evelyn and Jim each awarded approximately $11,500. The court further found that Evelyn, Jim, and Greg were tenants in common of a reservation of the mineral interests in which the surface interest was conveyed to the daughter, Dena. The court also found that Evelyn, Jim, and Greg were tenants in common of a reservation of the mineral interests in which the surface interest was conveyed to Evelyn and Greg as joint tenants with right of survivorship. Other tracts were found to be marital property, with Evelyn and Jim reduced to tenants in common, and the court ordered the property sold. On Jim's counterclaim seeking to set aside certain conveyances on the ground that Evelyn exercised undue influence over him, the court found that Jim failed to show that Evelyn had occupied a position of dominance over him and refused to set aside the conveyances.


The, first act bearing upon the question is that of chapter 90, Laws of 1860, the first section of which provides that the property, both real and personal, which any married woman now owns as her sole and separate estate, that which comes to her by descent, devise, bequest, gift or grant, that which she acquires by her trade, busi*270ness, labor or service carried on or performed on her sole and separate account, etc., shall, notwithstanding her marriage, be and remain her sole and <mask>, and may be used, collected and invested by her in her own name, etc.


The contention on the part of the plaintiff is that she pledged !her inchoate right of dower as surety for her husband, and is to be treated as such, and that the defendant by taking the property charged primarily with the payment of the mortgage debt is not entitled to a position which will enable him to assert any right to her prejudice in that respect. And in view of that relation it is 'also insisted that if the plaintiff consents, it is her right unless the mortgage is unqualifiedly paid by the defendant Prick, and the lien of it discharged, to take decree to that effect and sell subject to her inchoate right of dower. This inchoate right cannot be impaired without her consent effectually given, and against any attempted invasion of it the same protection will be afforded as to the vested right of dower of a widow. (Mills v. Van Voorhies, 20 N. Y., 412; Garlick v. Strong, 3 Paige, 440 ; Youngs v. Carter, 10 Hun, 194, 198 ; Witthaus v. Schack, 24 Hun, 328 ; Babcock v. Babcock, 53 How. 97; Simar v.Canaday, 53 N. Y., 298.) And for that purpose the wife may have a right of action. But it is but a mere chose in action and is not an interest that she can dispose of by assignment or any sort of transfer; she may release it in such manner that by means of estoppel she is barred of claim of-dower when she becomes a widow. (Malloney v. Horan, 49 N. Y., 112, 118; Marvin v. Smith, 46 id., 571.) It is not an estate, nor is it an existing interest except as founded in possibility of becoming such. It cannot be treated as the <mask> of the wife, but it is her right to preserve and protect the possibility of its becoming such. (2 Bish. Mar. Women, § 42; Watson v. Church, 3 Hun, 80 ; In re N. Y. C. and H. R. R. R. Co., 90 N. Y., 345.) She did not, by the mortgage- executed by her, convey any interest or estate in the premises, but merely *127released and barred to the extent of the incumbrance produced by it, the right to assert or claim dower in the event that she survives her husband, so long as the mortgage remained an effectual extinguishment of it. And her right in that respect would be confined to the equity of redemption, and her remedy in equity to redeem. (Van Duyne v. Thayre, 14 Wend., 233 ; Mills v. Van Voorhies, 20 N. Y., 412.)


First, defendant cannot now avoid his stipulations at trial in regard to the Sun Life and Cantella accounts by taking a contrary position in summation. The stipulation had the effect of making unnecessary any further proof of those accounts’ character as <mask>, and therefore to permit defendant to now make an argument that they are, in reality, marital property would deny plaintiff due process.


Each of the four investment accounts at issue was opened during the marriage and the statements for these accounts all note husband and wife were joint tenants. Although wife and wife's forensic accountant testified about the source of the funds for these accounts, no written document was introduced to show the parties intended the investment accounts to be wife's <mask>. Instead, the testimonial and documentary evidence showed the source of the funds for these four investment accounts likely came from wife's separate property. By contrast, husband "alluded to but did not establish through testimony or documentation that the *290source of these funds were from community funds."


In no part of the proceedings in probate is there more temptation to fraud or more opportunity to successfully employ it than in proceedings to set aside to the widow property to which she claims to be entitled, either because it was a homestead of the decedent selected by him in his lifetime, or ought to be selected as her homestead, because he had never made any selection. There are several cases denying relief from orders setting aside a homestead on the ground that the fraud complained of was not extrinsic, and that the court hence could not proceed without the re-examination of issues already tried and determined: Fealey v. Fealey, 104 Cal. 355, 43 Am. St. Rep. 111, 38 Pac. 49; Wickersham v. Comerford, 104 Cal. 494, 38 Pac. 101; Hanley v. Hanley, 114 Cal. 690, 46 Pac. 736. The case last cited is an extreme one, and, if carried to its logical *270result, should prevent relief being granted in nearly, if not in all, eases where fraud is practiced in probate proceedings. The action was brought to set aside a decree in the administration of the estate of Patrick Hanley, deceased, by which certain property was set aside to his widow as a homestead; and the complaint, among other things, alleged that the premises were the <mask> of the deceased, that his widow willfully, falsely, and fraudulently represented to the court, and testified, that they were community property; and also falsely represented to it that a certain declaration of homestead had been filed on the premises while she and her deceased husband were actually residing thereon; and it was further contended that the complainants had no notice of the proceeding to set aside the homestead. A demurrer to the complaint was sustained, on the ground that the proceeding, being in rem, all parties interested were bound by it without personal notice, and that the fraud alleged was not extrinsic or collateral to the matter which was tried and determined by the court. As the question was presented upon demurrer, there was no suggestion that the widow testified as she did through any mistake; on the contrary, the demurrer necessarily admitted that she acted willfully, fraudulently, and falsely. Proceedings of this character are ordinarily ex parte, and we do not think that the rule to which we refer should be applied to them where such is the case. As those who are adversely interested are not present in court and usually have no actual knowledge of the proceeding, it ought to be regarded as a fraud, entitling them to relief when one, taking advantage of their absence, willfully misrepresents facts to the court, though the facts so represented involve the merits and go to the very foundation of the proceedings. The ease of Sohler v. Sohler, 135 Cal. 323, 87 Am. St. Rep. 98, 67 Pac. 282, though it does not profess to overrule any of the decisions referred to, seems to be necessarily in conflict with them, unless it can be said that the principles applicable to decrees of distribution differ from those applicable to orders setting apart homesteads. In the ease last cited relief was obtained from a decree of distribution, on the ground that a widow conspired with her son, who was not the son of the decedent, to procure for him a share of the latter’s property as one of his children, filed a petition naming him as such, and obtained a decree in accordance therewith. The court proceeded, however, partly upon the ground that the widow, being the executrix of the decedent, was the trustee of all the heirs and of other parties in interest, was the mother and natural guardian of such heirs, and was obligated to protect their legal rights and see that the legal claims to the estate were properly presented to the probate court.


The remaining issues are equitable distribution of the marital assets, child support, maintenance and counsel fees. The court will address the question of equitable distribution first. It is a three-part process; initially the court will categorize the parties’ assets as either marital property or <mask> (Domestic Relations Law § 23 [B] [1] [c], [d]). This is followed by the next step of evaluation. Once the process is completed, the question of the actual distribution of the assets can be accomplished.


Here, Husband's belated argument that only his military pension was used for mortgage payments is unavailing. The trial court was not required to credit Husband's self-serving testimony asserting that he only used his military pension to reduce the mortgage. See Schubert v. Schubert, 366 S.W.3d 55, 72 (Mo. App. E.D. 2012) (explaining that the trial court is free to disbelieve a party's testimony); Hart v. Hart, 210 S.W.3d 480, 487 (Mo. App. W.D. 2007) (same). Throughout the entirety of the marriage, Husband intentionally deposited his income into his Bank of America checking account. The account commingled separate and marital property.4 From that account. Husband regularly paid for both marital and non-marital expenses, including the Residence's mortgage. The case before us is not that of a single payment made on the <mask> from an account with commingled funds. Cf. Moore, 189 S.W.3d at 637-38. Nor does the evidence show that Husband's commingling of his incomes was incidental or inadvertent. Cf. id. Husband did not maintain separate accounting for the military pension or any records designating the military pension for specific expenses. Husband cannot account for the expenditures he credited to his military pension besides the purported mortgage payments. The record before us simply lacks sufficient evidence documenting and tracing Husband's incoming funds to payments on specific expenses.5


We have no doubt that she is liable. By chapter 90 of the Laws of 1860, as amended by chapter 172 of the Laws of 1862, the powers conferred upon married women, and the obligations which they are authorized to incur, have been enlarged. They may acquire property by purchase as well as by devise, bequest, gift or descent; and they may, while married, sue and be sued in all matters having relation to the same, in the same manner as if they were sole. A lease for one year is a contract for the possession of the demised premises during that term for a stipulated price called rent. The lessee is, in legal effect, a purchaser of the term. Clearly the legis*214lature did ' not intend to confer the right to purchase, without imposing the correlative obligation of paying for the thing purchased. The authorities on the subject are decisive against the defendant. (Prevot v. Lawrence, 51 N. Y., 219; Frecking v. Rolland, 53 id., 422; Westervelt v. Ackley, 62 id., 505 ; Herrington v. Robertson, 71 id., 280; Cashman v. Henry, 15 id., 103, 115.) The case of Eustaphieve v. Ketchum (6 Hun, 621) is not conflicting because it was put upon the ground, that a lease to husband and wife jointly of a dwelling for their family was not a contract which had reference to the <mask> of the wife, but that the wife became merely a surety for her husband.


Finally, the petition for divorce alleged that Cohen had committed fraud on the estate and asked the trial court to "reconstitute the community estate to its full value prior to [Cohen's] depletion of the community estate[.]" Bar also alleged that he owned "certain separate property" and requested the trial court "to confirm that <mask> as [his] separate property and estate."


But this argument lacks evidentiary support. DeeDee has pointed to no evidence demonstrating Joe's separate funds and the community were in competition for unique investment opportunities. The investment accounts contained primarily publicly traded stocks and bonds, available to all investors. (Joe also invested in real estate, but DeeDee does not cite to evidence in the record demonstrating the real estate was a particularly unique and advantageous opportunity). A married person is free to invest his or her <mask>. (§ 770, subd. (b);


■ The complaint alleges that for ten years before the commence- ' ment of the action plaintiff had been a married woman, the wife of John Morenus; that in and before the month of May, 1875, she ’was the owner of a valuable horse, which was her sole and <mask>; that in May, 1875, the defendant Crawford resided in •the village of Berkshire, Tioga county, in this State, and the 'defendant Hoag resided in the village of Richford, in said county; that each kept a hotel at his place of residence, and sold intoxi- • eating liquors;, that on the 15th day of May, 1875, “the said ' defendants wrongfully conspiring and intending to injure said •plaintiff, at their places of residence aforesaid, gave and' sold : intoxicating liquors to the' said John Morenus, the plaintiff’s said -husband, * * * which he drank, and from the effects of the :said intoxicating' liquors so sold and given to the plaintiff’s said husband, as' aforesaid, by' said' defendants, he became and was •intoxicated; and while so intoxicated, caused by drinking the ■•intoxicating liquors sold and given-to him by the said defendants, •and by reason of the said intoxication, he killed plaintiff’s said •horse, which was of the valué of one hundred and fifty dollars.”


The JHO further erred in concluding that the photograph collection acquired during the marriage constituted defendant’s <mask>. All property acquired during a marriage constitutes marital property subject to equitable distribution (Domestic Relations Law § 236 [B] [1] [c]). We conclude, therefore, that the photograph collection constitutes marital property. Inasmuch as the collection includes photographs of defendant’s own family and other photographs that defendant generated, however, we further modify the judgment by awarding the photograph collection to him as part of the equitable distribution of the marital property. Additionally, we modify the judgment by granting plaintiff the right to obtain, at her own expense, duplicate copies of photographs from the photograph collection, excluding those photographs of defendant’s own family.


The court, therefore, concludes the legislative intent to be that all property regardless of its source, in which a spouse acquires an interest during the marriage, except that which is deemed <mask> (Domestic Relations Law, § 236, part B, subd 1, par d; subd 5, par b) is marital property and shall be eligible for equitable distribution in the event of divorce.


IV. Matching Distribution Carol’s final argument is that the trial court erred in failing to rule on her claim that Paul breached the December 2015 order requiring him to make matching distributions to her for any draws he took from ABX. Paul responds that Carol waived this issue by failing to request findings on this issue, and, in any event, relinquished any claim when she stipulated, and the court ordered, that ABX was Paul’s <mask>. A. Additional Facts The December 2015 order provided, in part, as follows: “Other than the base salary stated in the existing child support order, Husband will not make any payment out of ABX or loan or distribution or pay any divorce expense or increase over current levels, whether business, entertainment, or credit card expense or do anything of any nature that the mind of mankind can conceive to take more than his base pay out of ABX, however labeled, unless he gives an identical amount to Wife or obtains a prior court order: The intent is if Husband were to take any distributions from ABX, other than his existing base salary as of June, 2015, Wife would get a comparable distribution unless the distribution is by agreement of the parties or by court order.” The October 2018 order required Paul to pay Carol $875,000 and in exchange Carol “relinquishe[d] any claim of entitlement, whether community, separate or otherwise, to the business known as ABX Engineering, including all accounts receivable & payable, cash, inventory, & intangible value . . . .” In response to the proposed SOD, Carol objected that the trial court did not address her claim that Paul failed to comply with the December 2015 order that he pay her an amount equal to what he received from ABX. Carol listed numerous distributions Paul made between 2015 and 2018, the sum of which was in excess of $670,000.


(1) The financial resources of the party seeking maintenance, including marital property apportioned to [her], and [her] ability to meet [her] needs independently; (2) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment; (3) The comparative earning capacity of each spouse; (4) The standard of living established during the marriage; (5) The obligations and assets, including the marital property apportioned to [her] and the <mask> of each party; (6) The duration of the marriage; (7) The age and physical and emotional condition of the spouse seeking maintenance; (8) The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance; (9) The conduct of the parties during the marriage; and (10) Any other relevant factors. Id. (quoting Section 452.335.2). The trial court must award an amount of maintenance it deems just after carefully considering the Section 452.335.2 factors. Arndt v. Arndt, 519 S.W.3d 890, 900 (Mo. App. E.D. 2017). The trial court should apply *784the above factors so as to balance the reasonable needs of the maintenance-requesting spouse against the ability of the paying spouse to provide. Sheerin, 475 S.W.3d at 707. "Again, the trial court has considerable discretion in determining the amount of the maintenance award." Valentine v. Valentine, 400 S.W.3d 14, 22 (Mo. App. E.D. 2013).


Plaintiff objects, contending that both EA & D and M. Studios are his <mask>. Although he does not dispute that EA & D was established during the marriage, he claims its formation was nothing more than a change in the name of the business from M. Studios, which was created prior to the marriage. Plaintiff asserts that defendant did not play a role in either business during the marriage. He claims that she has no training or knowledge of ecclesiastical art, design or restoration which would qualify her to have done the work she claims she performed for the businesses. Plaintiff states that the dinners defendant claims she made for clients of the business were purely social occasions with friends. He denies having any business related dinners at his home and asserts that the parties have not entertained anyone at their home for the past three to four years, except for a priest who was never a client.


*270The decisions which insist upon the continuation of the common-law rule in spite of the enactment of the Married Women’s Acts, can only be understood in the light of the legal principles which rest, at the foundation of that rule. One of the bases of the rule was: undoubtedly the fact that at common law a wife could not hold property separate from her husband. However, were this the only factor to be considered, the enactment of the Married Women’s Acts enabling <mask> holdings and resulting in the ability of a wife to sue her husband for conversion (Whitney v. Whitney, 49 Barb. 319; Howland v. Howland, 20 Hun, 472), would dispel all reason for the rule.


Wife also points out the evidence supported the trial court's finding she was able to trace the source of the investment accounts to the sale of her <mask> residence. As we note above, tracing of assets from separate property sources does not overcome the joint title presumption. (Marriage of Weaver, supra, 224 Cal.App.3d at p. 486, 273 Cal.Rptr. 696.) To overcome the presumption, documentary evidence of intent to preserve the separate property nature of the investment accounts was necessary.


The judgment rendered by the justice is erroneous as to the defendant Isaac Swayzee, and must be reversed. When the action relates to the <mask> of the wife, the husband ought not to be joined, (Brownson v. Gifford, 8 How. Pr. R., 395), and where the husband cannot be joined with the wife as provided by section 114 of the Code, she shall prosecute or defend by next-friend. (§ 114). There is some conflict in the authorities on this question, but it is clear that the judgment in cases relating to the wife’s separate estate where the husband is joined cannot be against him in personam.


Commencing with 1840, the Legislature has from time to time enacted laws which lifted the disabilities imposed upon a married woman by the common law. Some of these statutory enactments granted her the right to insure the life of her husband for her own benefit; to hold property for her sole and separate use as though single; to sue and be sued in actions relating to her sole and <mask>. By chapter 669 of the Laws of 1937, now section 57 of the Domestic Relations Law, the Legislature permitted suits between spouses for torts, which actions had theretofore been barred at common law. (See McKinney's Cons. Laws of N. Y., Vol. 14, p. 2.) However, all these emancipatory statutory measures related solely to the creation and enlargement of specified civil rights and liabilities. They did not create criminal responsibility where none such existed at common law. (Porter v. Dunn, 131 N. Y. 314.)


By Efforts of Either or Both Spouses.—The fruits of the industry of husband and wife fall into the community. Indeed, it is the basic principle of the community system that whatever is acquired through the efforts of the husband and wife shall be their common property. All *45property acquired during marriage by the efforts of the wife alone or of the husband alone, or by their joint efforts, is community and not <mask>, unless it has come by gift, devise, bequest or succession, or unless it has sprung from the rents, profits, or increase of the separate property of* one of the spouses: Fennell v. Drinkhouse, 131 Cal. 447, 82 Am. St. Rep. 361, 63 Pac. 734; Otto v. Long, 144 Cal. 144, 77 Pac. 885; Succession of Manning, 107 La. 456, 31 South. 862; Picotte v. Cooley, 10 Mo. 312; White v. Lynch, 26 Tex. 195; Edwards v. Brown, 68 Tex. 329, 4 S. W. 380, 5 S. W. 87; Abbott v. Wetherby, 6 Wash. 507, 36 Am. St. Rep. 176, 33 Pac. 1070. Said the supreme court of Nevada in Lake v. Lake, 18 Nev. 361, 4 Pac. 711, 7 Pac. 774: “We are satisfied it is not necessary to prove that property is, in fact, the product of the joint efforts of the husband and wife in order that it may be declared community estate. If it is acquired after marriage by the efforts of the husband alone, but not by gift, devise or descent, or by exchange of his individual property, or from the rents, issues or profits of his separate estate, it belongs to the community. Such property is common, although the wife neither lifts a finger nor advances an idea in aid of her husband. She may be a burden and a detriment in every way, or she may absent herself from the scene of his labors, know nothing of his business, and do nothing for him; still it is common. On the other hand, property acquired by either spouse in any one of the ways mentioned in the statute—that is to say, by gift, devise or descent, or by exchange of individual property, or coming from the rents, issues or profits of separate property—belongs to him or her, as the ease may be, and the other has no more right to share it than a total stranger.”


Matthew retained attorney Clifford Chernick to represent Claudia in the negotiation and execution of the premarital agreement. Matthew did not believe he needed an attorney himself and never sought the advice of an attorney regarding the agreement. On February 29, 2008, Mathew emailed a copy of the draft premarital agreement to Chernick's office. On March 3, 2008, Matthew emailed a revised draft of the agreement to Chernick's office, which contained the same provisions regarding 538 Palomar Drive as the original *486draft. Chernick reviewed the drafts and made some notes regarding questions he had. *918Attorney Chernick met with Claudia and Matthew in person on March 4, 2008. Chernick advised Matthew he should seek independent legal counsel, but Matthew told Chernick he was able to represent himself. Chernick spoke to Claudia outside Matthew's presence to make sure she understood the agreement. He also discussed some of the provisions of the draft agreement with Matthew, including (1) what was meant by "divorce" (separation, filing for dissolution, final judgment of dissolution) in the provision giving Claudia a percentage interest in 538 Palomar Drive if they divorced before seven years of marriage; and (2) whether Matthew intended to waive his right to reimbursement of his <mask> interest in 538 Palomar Drive pursuant to Family Code section 2640 if that property was transmuted to community property after seven years, as provided in the agreement.2


Having determined that the pension is not subject to equitable distribution as marital property, we must now determine whether it may be considered in determining maintenance. The law clearly requires the court to consider "income and property” of the parties together with their needs in determining an appropriate level of maintenance. As noted previously, this was a long-term marriage and both parties are over 70 years old. As noted previously, the defendant’s veterans’ pension is his <mask> for purposes of the equitable distribution portion of the statute. The maintenance portion of the statute, however, requires the court to consider the "income and property” possessed by the parties without any express or implied exclusion of separate property in determining a maintenance award.


Although the cases cited by the parties and found by the court do not specifically hold that one of the parties bears this burden of proof, a review of decisions from two departments of the Appellate Division supports the position that defendant at bar has that burden because he is the party seeking to have certain property, i.e., the increased value of the stock assets, determined to be his <mask>.


*316Husband did not object to the court's finding, in its October 2016 proposed statement of decision, that the property was partially Husband's <mask>. Rather, in his written objections, he argued only that the court failed to properly address his reimbursement request. In its proposed statement of decision, the trial court, as it did in the Judgment, stated its belief the parties agreed La Madrona was partly Husband's separate property. The court did not include a discussion of Husband's reimbursement request in the proposed statement of decision; the court ordered the property appraised and sold, with the proceeds distributed between Husband and the community in proportion to Husband's separate property ownership, which the court did not define. In objecting to the proposed decision, Husband asked the court to state the legal and factual basis for denying his requested contribution, but did not address the finding that the property was partly his separate property.


With respect to the distribution of the appreciated value of the husband’s <mask>, i.e., his stock and the DDI good will, the wife would be entitled under section 236 (part B, subd 1, par d, cl [3]) of the Domestic Relations Law to share in such appreciation but only to the extent that it was due to her “contributions or efforts.” In this regard, the court finds that the Legislature in providing for the distribution of the appreciated value of “separate property”, expressly omitted as a consideration “contributions and services * * * as a spouse, parent, wage earner and homemaker, *** to the career or career potential of the other party”, which is expressly provided as 1 of 10 factors in determining a maintenance award under section 236 (part B, subd 6, par a, cl [8]) of the Domestic Relations Law and as similarly provided as 1 of 10 factors in determining equitable distribution of “marital property” under section 236 (part B, subd 5, par d, cl [6]) of the Domestic Relations Law. It would appear therefore that the Legislature intended a construction of the meaning of a spouse’s “contribution or efforts” toward the appreciated value of “separate property” to exclude considerations of services as a spouse, parent, wage earner, homemaker or other spousal career advancement factors.


. The Third Department recently disavowed a portion of the Matwijczuk decision in Ceravolo v DeSantis (125 AD3d 113, 117 [3d Dept 2015]), stating that “[t]o the extent that Matwijczuk and Ciaffone can be read as holding that <mask> contributions made by a nontitled spouse toward the acquisition or improvement of premarital property can serve to transform such property into a marital asset, they should no longer be followed.” The portion of the decision that was disavowed is not at issue here.


Wife argues that Van Camp applies only when market forces cause the increase of a <mask> business's value during marriage. She therefore argues it is "irrelevant that 'others at DigiDesign' ... contributed to its growth during marriage." She relies heavily on Gotcher's testimony that DigiDesign was an "active" company. Gotcher confirmed the appreciation was active versus passive, as it was "due to activity and things that were going on within the company, new products , new hires , all of those things ...." (Italics added.) However, Gotcher's overall testimony and the testimony of the other witnesses at trial reveal it was the efforts of others in the company, rather than Husband's efforts or market forces, that led to the significant increase in the company's value after the date of marriage. Wife did not provide contradictory evidence or opinion at trial; Butera, her retained valuation expert, testified only to his valuation under the Pereira method, which he performed at Wife's attorney's request, explicitly stating he did not undertake a Van Camp analysis. He did not review the depositions of Husband, Gotcher, Lego, or Jeffrey in forming his opinions. He had limited information about Husband's job duties or DigiDesign's products and who was responsible for developing the products. He did not know whether Husband contributed to the increase in DigiDesign's sales during the marriage. And, Butera agreed Pro Tools was DigiDesign's most important product in terms of revenue at the time of the sale to Avid, although he did not know whose services were significant in developing the Pro Tools family of products.


It is uncontroverted that Lisa's inheritance was her <mask>. But Keith is correct that sometimes the nature of separate property may change to marital in the event commingling occurs. This result, however, occurs only when tracing the way nonmarital property and marital property have been commingled becomes so difficult as to be onerous. See Speer v. Speer , 18 Ark. App. 186, 191, 712 S.W.2d 659, 662 (1986). Here, there is no such difficulty. It is a well-settled rule that property acquired for a consideration paid in part out of community funds and in part out of separate funds of one of the spouses is in part community and in part separate property. McCormick v. McCormick , 2012 Ark. App. 318, at 6, 416 S.W.3d 770, 775. The two estates own such property by way of a sort of tenancy in common. Id. The mere pouring of nonmarital funds in and out of a joint checking account does not render them forever funds owned by the entirety. Jackson v. Jackson , 298 Ark. 60, 63-64, 765 S.W.2d 561, 562-63 (1989). We therefore affirm the trial court's ruling on this point.


For the purposes of determining income tax liability, the parties agree and hereby partition 100 percent of the income, gain, loss, and deductions attributable to a party from that party's individual labor, that party's individual efforts, or the property awarded in this agreement to that party, as his or her sole and <mask>, as if that party had been single and unmarried from January 1, 2016, through the date of divorce. The partition further assigns to a party any exemptions, exclusions, estimated tax payments, and withholdings made by that party or for his or her benefit from January 1, 2016, through the date of divorce, as if the same were that party's separate property. The parties agree and IT IS ORDERED AND DECREED that, for purposes of determining income tax liability, any property awarded to a party in this decree shall be deemed to be partitioned to that party and have been that party's separate property as of January 1, 2016, and thereafter. The parties further agree and IT IS ORDERED AND DECREED that any tax payments and any payments that are tax deductible are assigned to the party who made those payments. At the default hearing, Donna requested that she "be responsible for her taxes for 2016," and "[Michael] be responsible for his." On appeal, Michael correctly points out that, contrary to the recitals in the decree, the record does not show that, for tax liability purposes, he and Donna agreed to partition property that would otherwise be treated as community property "as his or her sole and separate property ... from January 1, 2016, through the date of divorce." See Marriage of O'Brien , 436 S.W.3d 78, 81 (Tex. App.-Houston [14th Dist.] 2014, no pet.) (recognizing that assets earned during marriage, even during pendency of divorce proceedings, are community property). Nor did Michael and Donna agree "that any tax payments and any payments that are tax deductible are assigned to the party who made those payments." In addition, no other evidence in the record supports the trial court's decision to characterize community party as separate property for purposes of 2016 tax liability.


In the matrimonial litigation, the husband sought a ruling that the proceeds resulted from a sale of stock of his separate real estate business entity, and thus constituted his <mask> exempt from equitable distribution. As is readily discerned, this was a substantial “change of position” from that taken on the tax return. The tax returns declared the ordinary income character of the proceeds when received by the husband, which created an estoppel, according to the Court of Appeals, precluding husband’s separate property argument. (12 NY3d at 422.) Indeed, because the tax returns made an affirmative representation concerning the nature of the proceeds as Form 1099 ordinary income, the result would have been the same had the husband reported the transaction on a separate individual tax return. Thus, the election to file jointly was of no moment.


2. "Exhaustion tracing" is sometimes also called "Recapitulation," "Family expense," "Family living expense," or "Family income exhaustion" tracing. Whatever the name, it attempts to trace a payment or purchase from a commingled mass to <mask> funds by process of elimination; i.e ., by showing that-because all community property funds were exhausted at the time the purchase or payment at issue was made-separate property funds necessarily must have been used. ( See v. See , supra , 64 Cal.2d at p. 783, 51 Cal.Rptr. 888, 415 P.2d 776.) This approach presumes that available *915community property funds are used for family expenses before separate property funds are used for that purpose. (See, e.g. , Marriage of Frick , supra , 181 Cal.App.3d at p. 1018, fn. 11, 226 Cal.Rptr. 766.)


However, the instant proceeding may be distinguished from such principle due to the fact that the marital domicile is indisputably the petitioner’s property and is not considered to be a marital property. This fact is illustrated in the Nassau County Supreme Court’s judgment of divorce, where it is stated *1015that the marital residence is the “<mask> of the [husband].” This indicates that the marital residence could not become the subject of dispute after the dissolution of marriage. Thus, as stated in Lally v Fasano (23 Misc 3d 938 [Nassau Dist Ct 2009]), there is no reason to leave the decision regarding who has a superior property interest to the discretion of another court, which in this case, is the Supreme Court of Nassau County. The marriage between petitioner and respondent has been dissolved, and the issues stemming from the possession of the marital home are separate from the prior divorce proceedings. Furthermore, there is no evidence that respondent has availed herself of the option of extending the deadline set forth by the Supreme Court. Although the Supreme Court of Nassau County is appropriate to determine ownership of the marital domicile, the District Court has jurisdiction to determine possession. Hence, this court holds that the District Court of Nassau County is the appropriate forum to resolve the issues presented.


The court agrees with the position taken by the Washington court in Matter of Kittleson (21 Wash App 344) in which the court preferred not to take a hard and fast position as to what portion of the disability pay should be regarded as the <mask> of the primary recipient, on the one hand, or the community property of the spouses, on the other. Discussing some of the rationales that appeared in cases in other jurisdictions, including the rationale that a disability pension should be analogized to a personal injury recovery, the court stated generally that while the preferable course was to award to the retired spouse as part of his or her assets upon distribution, any compensation that arises from his or her disability, it was not required, that the court do so if the total distribution of assets would be unequitable. The court recognized that different circumstances may have led to the disability. The court stated (p 353): “Some disabilities are the result of long term exposure to injury, disease or impairment while employed during marriage, and some, as here, flow from injury, disease or impairment which did not result from employment but which will prevent the employee from engaging in the particular employment thereafter. An inflexible rule that required a disability pension to be classified as separate property would ignore the fact that some ‘disability’ pensions step into the place of a regular retirement pension and permit an earlier retirement and/or retirement with increased payments, others contain elements in the award attributable to an earned regular retirement pension along with elements which compensate for physical injury, and yet other awards are made for disability alone. We hold that to require an unwinding of *589such awards in all cases would add a complexity to the trial court’s task which is not warranted and which we find to be unwarranted in this case. Further, we hold that it would be unwise by our pronouncement of an absolute rule to preclude an award to the other spouse in the future from a ‘disability’ pension when the extreme situation arises that would find one spouse able to look to a more than adequate disability pension while the other would be left destitute.”


As the parties concede, the property in question had already been acquired by the defendant prior to the marriage. Therefore the property will likely be characterized by the court in the divorce action, as the "separate” property of the defendant. (Domestic Relations Law § 236 [B] [1] [d] [1].) Thus, the property itself will remain the defendant’s <mask> *1028(Domestic Relations Law § 236 [B] [5] [b]), titled solely in him. And any claim by the plaintiff to a share of this asset in the divorce action will be limited to its increase in value during the marriage and then only to the extent that such appreciation was due in part to her contributions or efforts. (Domestic Relations Law § 236 [B] [5] [c]; [1] [d] [3]; Price v Price, 69 NY2d 8.)


The prenuptial agreement provides at paragraph 4 (B) that: “Assets belonging to parties [sic] individually at time of signing agreement remain their <mask>. Assets accumulated thereafter shall be shared equally.” However, paragraph 4 in its entirety was declared null and void in the postnuptial agreement. The postnuptial agreement went on to provide at paragraph 2 that in the event of a divorce, “the parties agree to renounce their Joint Will, the specific bequests listed therein shall become the separate property of the party disposing of same and all of the remaining assets shall be appraised, sold or exchanged, and the proceeds divided equally.” Significantly, neither the prenuptial agreement, the postnuptial agreement, or the joint will make any reference to defendant’s pension.


According to Old Republic, Bell's divorce decree "awarded" Bell the Property. Old Republic pleaded that the Property was a community asset and that Bell fraudulently misrepresented to Chandrasekaran that the Property was unencumbered and her <mask>. Specifically, Old Republic pleaded that Bell failed to inform Chandrasekaran that the Property was encumbered by a federal lien by way of the restitution lien against Benson's assets, which, ostensibly, included "All community property ... incurred during [Bell and Benson's] marriage." Also according to Old Republic, Bell fraudulently signed a "Marital Status Affidavit," wherein Bell "swore that at the time she acquired the Property she was unmarried," in conjunction with the sale of the Property.


“Property acquired during the marriage is presumed to be marital property and the party seeking to overcome such presumption has the burden of proving that the property in dispute is separate property” (Steinberg v Steinberg, 59 AD3d 702, 704 [2009] [internal quotations marks omitted]). The defendant overcame the presumption that funds he deposited into the account of Clark Development, LLC (hereinafter CD, LLC), a company he formed during the marriage, were marital funds by presenting sufficient evidence that the source of the funds was <mask> (see Tsigler v Kasymova, 73 AD3d 1159, 1160 [2010]). Moreover, although appreciation of, or increase in the value of, separate property is considered separate property, “except to the extent that such appreciation is due in part to *669the contributions or efforts of the other spouse” (Domestic Relations Law § 236 [B] [1] [d] [3]), the plaintiff failed to carry her burden of establishing that CD, LLC, as the defendant’s separate property, appreciated in value during the parties’ marriage (see Patete v Rodriguez, 109 AD3d 595, 598 [2013]). Accordingly, the Supreme Court erred in directing that the plaintiff was to receive a distributive award relating to CD, LLC.


Mr. Reuben H. Lloyd was also consulted. Mr. Galpin never had any conversation with Mrs. Garcia in connection with the drafting of the codicil. Neither she nor Mrs. Gerrish was ever present at any of the interviews. Mrs. Scott always came alone. She gave the data and information obtained in drawing the will. At first, she • stated generally what she wanted to do; then when it came down to a division among the different parties in interest, she made a list of the names that she gave to witness and indicated what fractional interest each was to receive, and then from time to time she would keep changing these interests, substituting different fractions opposite different names. She was engaged in this way for two or three weeks. She Would come to his office, perhaps twenty times in all, and suggest changes in the will. The witness formed the opinion she was sane, and judged so from her manner and appearance and her conversation and mode of doing business. He had no reason to suspect her sanity. Witness had no other business with decedent for some short space prior to the time she commenced talking about the will. She began to consult him on that subject more than a month before the date of the execution of the codicil, October 22, 1897. During that period that was the only transaction between them as attorney and client. She said she desired to give Mr. Scott expressly what she had given him in the will which was drawn *351by the witness in 1891. She said that she was attached to his children and did not regard them as responsible for his shortcomings; that she was inclined to give them something which she had not done by the former will, and desired Mr. Galpin to so fix that Scott's share should be the same and that the amount to his children should be specified. She also said she was very apprehensive that the codicil would be broken and desired great pains taken.. She desired a will so drawn, if possible, that it could not be broken, and also she wanted great care taken that it should not be stolen, which she apprehended might happen. Decedent informed the witness that she was told that Mr. Estee and Mr. Ball would undertake to break this will. She was very anxious about the safety of the will and codicil and told the witness that she proposed to put it in her box in the Safe Deposit Building, and consulted him as to how she could do that and prevent some person obtaining access to the box and purloining the paper after her death. The codicil was drawn in duplicate, at his suggestion, to anticipate its possible loss. One copy was attached to the original will of 1891 and the other copy was retained by him for a while and kept in his safe and then Mrs. Scott took it away. She was a very suspicious woman. She said she would put that will where she thought it would be safe. . She did not disclose the place where she was going to put it. Subsequently it was returned to him and is now in his possession. The witness had no recollection of Mrs. Scott’s saying anything about community or <mask>, but she did say that a large part of her property was derived from her first husband, Salvin P. Collins, and she thought that it was but right that she should remember his relatives in the will.


The answer does not intimate that Caroline Switzer was the plaintiffs wife and had a <mask>, nor does it aver that the plaintiff transacted any business in the name of “ Caroline Switzer,” and that she was authorized by him to transact such business for him or to mortgage the property in question, either in his name or in her own.


And in Howorth v. Dewell (29 Beav., 18 [1860]), the devise was to the testator’s wife, with power to dispose of the same among his children or any of them for such interest, temporary or lasting, as she should see fitting. So in Brook v. Brook (3 Sm. & Griff., 280) copyholds.were devised to a married women as sole and <mask>, with power to appoint the same to her children and husband, in such way and proportions as she might think fit. So in Curtis v. Rippon (5 Mad. Ch., 434) the testator gave all his property to his wife, trusting that she would use it for the spiritual and temporal good of herself and children, remembering always the church and poor. So in Winch v. Brutton (14 Sim., 379) the testator recited that he was desirous of making suitable provision for iiis wife, as well as for his daughter and grandchild; but in order to mark his unbounded confidence in his wife, and his belief that she would be actuated by the most maternal regard towards his child, he gave her all his property for her own use and benefit and disposal absolutely, implicitly relying on her attachment to his daughter and granddaughter.


Walter Schackman, J. Plaintiff Susan Lipton and defendant Charles Lipton were engaged to be married in December 1983. As a symbol of the parties’ intentions and implied promises to marry, the defendant gave an engagement ring to the plaintiff at that time, and the parties were married in August 1984. In this action for divorce, the court must determine whether the engagement ring is marital or <mask> and thus whether it should be included in the property to be distributed pursuant to the Equitable Distribution Law.*


Other courts have refused to recognize a property interest in cases of this type. (See, e.g., Matter of Graham, 194 Col 429 [M.B.A. degree] lacks traditional property attributes; see, also, Mahoney v Mahoney, 182 NJ Super 598, revg 175 NJ Super 443 [M.B.A. degree] professional license is not <mask> for equitable distribution; also a wife is not entitled to reimbursement for contributions made to support husband in achieving his educational goals on termination of marriage; Wilcox v Wilcox, 173 Ind App 661 [Ph.D. degree] increased earning capacity is not property although enhanced by working spouse; Stern v Stern, 66 NJ 340 [law partnership] earning capacity enhanced and developed by other spouse, no entitlement for reimbursement on termination by other spouse.)


Before the marriage, couples may change the character of property acquired during marriage from community property to <mask> by means of a premarital agreement under the Uniform Premarital Agreement Act ( Fam. Code, § 1600 et seq., hereafter the UPAA).6 The UPAA provides that the parties to a premarital agreement may contract with respect to various issues, including: "[t]he rights and obligations of each of the parties in any of the property[7 ] of either or both of them whenever and wherever acquired or located" ( Fam. Code, § 1612, subd. (a)(1) ), and "[a]ny other matter, including their personal rights and obligations, not in violation of public policy or a *307statute imposing a criminal penalty" ( Fam. Code, § 1612, subd. (a)(7) ). The premarital agreement "becomes effective upon marriage." ( Fam. Code, § 1613.)


We are forced to disagree. The standard ITGD expresses an intent to transfer a property interest from one spouse to another: The constituent components of *176the word "interspousal"-literally between spouses-plus the words "transfer" and "grant," plus the usual statement about the grantee (or grantees) taking the property as either community or <mask>, are all clear indicators the document constitutes an express declaration of an agreement to change the marital character of the property. This document includes all those features. We therefore reverse the trial court, and remand for further proceedings as to whether the beneficially-interested spouse in this case dispelled any presumption of undue influence (see § 721, subd. (b) ) that might have arisen from the circumstances giving rise to this ITGD.


As we noted above, a spouse who uses <mask> funds after the date of separation to pay community debts is entitled to reimbursement out of the community property at dissolution absent circumstances that would make reimbursement inappropriate. (Epstein, supra, 24 Cal.3d at pp. 84-85, 154 Cal.Rptr. 413, 592 P.2d 1165.) Here, the trial court found that "the Property taxes in the amount of $19,335.64 and homeowners insurance premiums in the amount of $8,948.68 are the sole responsibility of" wife. However, the trial court awarded wife "one-half reimbursement for the maintenance and repair" of the marital residence for the period after separation during which wife had exclusive use of the property. The judgment states that "[t]he community shall reimburse [wife] the amount of $36,040.25 as per evidence presented at trial, for expenditures to repair and maintain the" marital residence.


It is incredible that the deceased assented to the handling of funds (which were undoubtedly his at least until deposited in the account) so that their expenditure for his benefit created a new debt equal to the amount so expended. He was the source of the funds. He could have directed his office to make the payments directly to the physicians and the hospitals. If the same funds had been handed to the wife with express instructions to pay the medical expenses there can be no doubt that no claim for reimbursement would arise in favor of the wife even if she had deposited the funds in her account and then checked them out. It is not sufficient here that the wife expected reimbursement, if in truth she did expect it. Even if the funds were derived from the <mask> of the wife, the circumstances here give rise to the presumption of a gift by her. (Matter of Hughes, 229 App. Div. 614, *750at p. 616.) So, too, unless there is clear proof that the recipient expected to pay there is no liability. (Robinson v. Munn, 238 N. Y. 40.) That there were paid by the wife charges which were the obligations of the husband gives rise to no claim in the circumstances here disclosed. (Hendricks v. Isaacs, 117 N. Y. 411, at p. 418; Matter of Hamilton, 70 App. Div. 73, at p. 76.) The claim of the administratrix is wholly disallowed. Submit decree settling the account accordingly.


Plaintiff also contends that Supreme Court erred in regard to its treatment of defendant’s profit sharing plan and one of two snowmobiles awarded to defendant. We agree. The record establishes that the funds were deposited in defendant’s profit sharing plan during the marriage and, therefore, should have been considered marital property, not defendant’s <mask> (see, Majauskas v Majauskas, 61 NY2d 481, 485-486).


The wife’s attorney also asked the defendant to produce any records regarding the credit card charges on the wife’s credit card, so the wife could determine which charges were incurred for marital expenses during the marriage. The wife lists more than $36,000 in credit card accounts in her statement of net worth and she claims that she cannot identify the purchases and charges against these accounts. Wife’s counsel also asked the husband to provide several items of personal property that the wife claimed were either <mask> or marital property that she wanted distributed to her. The husband asserted that he wanted to retrieve personal property in the wife’s possession, and that he would come to Rochester and pick up the property he claimed. The court ordered that the property exchange would occur no later than August 24, 2012, and that the husband needed to give his wife 48 hours notice of when he would make the exchange.


Similarly, the joint checking account is likewise marital. It shall be awarded exclusively to the plaintiff. In so concluding the court observes that the defendant’s portfolio doubled during this brief marriage. The plaintiff has not sought any claim to that portion of the increase in the defendant’s <mask> occurring during this marriage (see, Price v Price, 69 NY2d 8 [1986]). During this same period of time that defendant’s net worth increased by $100,000, the plaintiff’s net worth decreased by $30,000 as a direct result of her largesse bestowed on the defendant. The great bulk of the funds in that account were derived from the plaintiff and the defendant’s contribution to the sum on deposit was de minimis.


The point is, however, that Minnie Grey Checkman did not lose any of her rights by such marriage. Section 3 of the Indian Law imposes the marriage and divorce laws of the State upon the Indian Nations. (Matter of Patterson v. Council of Seneca Nation, 245 N. Y. 433, 445.) The married Indian woman thus retains the same right to enjoy her <mask> as a white woman under section 51 of the Domestic Relations Law.


The argument used by the defendants is briefly that the right of a married woman to deal with her sepa/rate property, to carry on business, etc., on her sole and separate account, and to have her earnings therein as her sole and <mask>, prevents her from being a partner with her husband; because parnership implies joint property. But if a married woman borrows money on her own personal obligation, stating that she has a business in which she is interested, and if she puts that money into a business carried on in fact by herself and her husband, does that disposition of the money afford any reason why she should not pay her debts ? “ The law does not dictate what she shall do with the money when it becomes her own.” “It is none the less her separate property because she * * % consumes it for the benefit of others as well as herself.” (Tiemeyer v. Turnquist, ut supra.)


“The community shall be reimbursed $304,107[10] from [Crouch] for the sale of 1425 Bay Laurel, Menlo Park, CA. The court finds this property sold three months after separation, and accepts [Lane’s] rendition of the undistributed funds. The court denies [Crouch’s] <mask> claim for reimbursement with regard to 1425 Bay Laurel.” “The community [interest] of the portion of the post-sale construction contract to DCCH for 1425 Bay Laurel was supported by sufficient evidence as (a) [Crouch] was 49 percent vested in the 1425 Bay Laurel partnership, (b) [Crouch] unilaterally controlled the $500,000 payment to DCCH as payment for construction as opposed to a portion of the purchase price of the home, (c) DCCH invoicing lagged behind actual work done, and (d) [Crouch] was compensated for post- separation work on 1425 Bay Laurel by his draws from DCCH and payment of his personal expenses by DCCH.” Crouch argues that the family court erred in treating all profit from the project as a community asset, “without allocating to [him] any portion at all for his post-separation efforts from July 2013 until sometime after December 2014 in creating that profit.” His position is straightforward: “From and after separation in July 2013, [he] was entitled to receive his separate property interest from working on that property.” Crouch fails to establish error.


If <mask> was converted to joint title, the reason for the conversion does not affect the burden of proof of requirement in section 2581 of a writing to show intent to retain the separate property nature of the asset. (In re Marriage of Neal (1984) 153 Cal.App.3d 117, 124, fn. 12, 200 Cal.Rptr. 341 (Neal ), disapproved on other grounds in In re Marriage of Buol (1985) 39 Cal.3d 751, 758, fn. 8, 218 Cal.Rptr. 31, 705 P.2d 354 ; In re Marriage of Fabian (1986) 41 Cal.3d 440, 451, fn. 13, 224 Cal.Rptr. 333, 715 P.2d 253.)