Avera v. Avera

Decision Date05 May 1997
Docket NumberNo. S97A0558,S97A0558
Citation485 S.E.2d 731,268 Ga. 4
Parties, 97 FCDR 1507 AVERA v. AVERA.
CourtGeorgia Supreme Court

Roy J. Boyd, Jr., Killian & Boyd, P.C., Brunswick, for Sandra Wise Avera.

Grayson P. Lane, Lane & Crowe, Brunswick, for J. Wray Avera.

BENHAM, Chief Justice.

Appellant Sandra Avera and appellee J. Wray Avera, II were married in July 1984, and have two minor children. Wife filed a complaint for divorce in June 1993, and listed the home in which the family resided as her property. Husband filed an answer and counterclaim for divorce in which he contested Wife's sole ownership of the home. It is undisputed that title to the home is in Wife's name and that it was transferred to her in 1990 by a third party, an irrevocable trust established by Husband in 1967, with himself as the trustee of the trust. 1 Wife filed a motion for partial summary judgment asserting that the home was not subject to equitable division as marital property because it was her sole property. The trial court denied Wife's motion on the ground that the conveyance of the home to Wife was the result of the joint effort of the spouses to further the financial security of their family. This court granted Wife's application for interlocutory discretionary review of the trial court's order.

1. "[O]nly the real and personal property and assets acquired by the parties during marriage is subject to equitable property division. [Cit.]" Moore v. Moore, 249 Ga. 27(2), 287 S.E.2d 185 (1982). However, property acquired during the marriage by one spouse by gift, inheritance, bequest or devise remains the separate property of the recipient spouse, and is not subject to equitable division. Bailey v. Bailey, 250 Ga. 15, 295 S.E.2d 304 (1982). If, however, the property is acquired by one spouse as the result of an interspousal gift of marital property, the property retains its status as marital property. McArthur v. McArthur, 256 Ga. 762, 763, 353 S.E.2d 486 (1987). Should the separate property of one spouse appreciate in value during the marriage solely as a result of market forces, the appreciation is not a marital asset subject to equitable division; however, if the separate property's appreciation in value during the marriage is the result of efforts of either or both spouses, the appreciation becomes a marital asset subject to equitable division. Bass v. Bass, 264 Ga. 506, 507, 448 S.E.2d 366 (1994). The issues for determination in the case at bar are identification of the transferor of the property to Wife, the nature of that transfer and, if the property is Wife's separate property, the source of the appreciation in value, if any, of the property since its acquisition by Wife.

2. The warranty deed which conveyed the property to Wife identified the grantor as the trustee of the J. Wray Avera II Trust. The validity of the trust was upheld by this court in Avera v. Avera, 253 Ga. 16, 315 S.E.2d 883 (1984). In the trustee's unsuccessful attempt to have the deed to Wife set aside, the conveyance of the property by the trust to Wife was ruled a transaction authorized by the trust, and that decision was affirmed by this court without opinion. Avera, Trustee, v. Avera, 266 Ga. XXV, 469 S.E.2d 33 (1996). 2 That legal title to the property was held by the trustee (OCGA § 53-12-2 (11)) who happened to be Husband does not diminish the fact that Wife received the property from the trust and not from Husband.

3. The trial court recognized that the transferred property was not the property of Husband, but found the transfer from the trust to Wife was marital property because Husband and Wife agreed it was in their family's best interest to have the trust convey the property to Wife, and both spouses participated in the conveyance: Husband executed the deed of conveyance on behalf of the trust and Wife accepted delivery thereof. We disagree with the trial court's analysis.

The trustee, as was found by the trial court in the action to set aside the deed, executed the deed of conveyance in performance of duties authorized by the trust: in his discretion, he withdrew property from the principal of the trust because beneficiaries of the trust, the grantor and his wife, were in need. See Avera, Trustee, v. Avera, 266 Ga. XXV, 469 S.E.2d 33. In effect, the trial court in the action at bar ruled that the transfer to Wife from the trust was an interspousal transfer from Husband to Wife because Husband was the trustee of the trust. In so doing, the trial court overlooked the valid separate status of the trust. See Avera v. Avera, supra, 253 Ga. 16, 315 S.E.2d 883. We reiterate what has been held before with regard to this trust and this transaction: the trust is a valid entity separate from Husband and the transfer of trust corpus to Wife was a conveyance authorized by the terms of the trust.

4. As stated earlier, property inherited by or given to, bequested to, or devised to one spouse during a marriage by a third party is the separate property of that spouse and is not subject to equitable division. Bailey v. Bailey, supra, 250 Ga. 15, 295 S.E.2d 304. Wife did not receive the property by means of inheritance, bequest, or devise. The issue then, is whether the valid distribution of trust corpus to Wife constitutes a "gift" from a third party. If so, the property is the separate property of Wife.

A valid gift must meet the requirements of OCGA § 44-5-80: the donor must intend to give the gift; the donee must accept the gift; and the gift must be delivered, or some act which the law recognizes as a substitute for delivery must be done. When real property is the subject of the gift, delivery of a valid deed is an acceptable substitute for delivery of the property itself. McLemore v. Wilborn, 259 Ga. 451, 383 S.E.2d 892 (1989). It is clear that the donor/trust had the intent to make a gift of the property since it irrevocably transferred a present, immediate interest....

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9 cases
  • Lops v. Lops
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • May 7, 1998
    ...This language indicates that the father did not have to comply with Georgia's interlocutory review procedures.20 Cf. Avera v. Avera, 268 Ga. 4, 4, 485 S.E.2d 731, 732 (1997) (reviewing on appeal the trial court's order in a divorce action and stating, "This court granted Wife's application ......
  • Armour v. Holcombe, S10F0946.
    • United States
    • Georgia Supreme Court
    • October 18, 2010
    ...ofefforts of either or both spouses, the appreciation becomes a marital asset subject to equitable division. [Cit.]Avera v. Avera, 268 Ga. 4, 485 S.E.2d 731 (1997). Although Wife asserts that the real estate appreciated in value due in part to her efforts during the time that it was owned b......
  • Coe v. Coe
    • United States
    • Georgia Supreme Court
    • October 5, 2009
    ...gift of marital property, the property retains its status as marital property. (Citation and punctuation omitted.) Avera v. Avera, 268 Ga. 4(1), 485 S.E.2d 731 (1997); McArthur v. McArthur, 256 Ga. 762, 763-764, 353 S.E.2d 486 (1987). It follows that a spouse can make a gift of non-marital ......
  • Flory v. Flory
    • United States
    • Georgia Supreme Court
    • February 22, 2016
    ...resulting from the efforts of either or both spouses becomes a marital asset subject to equitable division. See Avera v. Avera, 268 Ga. 4(1), 485 S.E.2d 731 (1997). Likewise, under the "source of funds rule," a spouse contributing non-marital assets towards the acquisition of property is en......
  • Request a trial to view additional results
1 books & journal articles
  • Domestic Relations - Barry B. Mcgough and Gregory R. Miller
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 50-1, September 1998
    • Invalid date
    ...Ga. App. at 653, 494 S.E.2d at 559. 94. Id. (citing Allen v. Baker, 188 Ga. 696, 4 S.E.2d 642 (1939)). 95. O.C.G.A. Sec. 19-7-2 (1991). 96. 268 Ga. 4, 485 s.e.2d 731 (1997). 97. Id. at 6, 485 s.e.2d at 733. 98. Id. at 4, 485 s.e.2d at 732. 99. Id.; see also McArthur v. McArthur, 256 Ga. 762......

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