Brock v. Brock, S04F2054.

Decision Date21 February 2005
Docket NumberNo. S04F2054.,S04F2054.
Citation610 S.E.2d 29,279 Ga. 119
PartiesBROCK v. BROCK.
CourtGeorgia Supreme Court

OPINION TEXT STARTS HERE

Clifton M. Patty, Jr., Ringgold, for Appellant.

E. Crawford McDonald, McDonald Kinnamon & Thames, Dalton, for Appellee.

HUNSTEIN, Justice.

Gregory Brock (Husband) brought this divorce action against Elizabeth Brock (Wife). After a bench trial, the trial court entered a final judgment and divorce decree awarding them joint legal custody of their three minor children with Husband to be the primary physical custodian. Wife filed an application for discretionary appeal challenging on various grounds the trial court's property division and custody award. We granted her application pursuant to this Court's pilot project. See Wright v. Wright, 277 Ga. 133, 587 S.E.2d 600 (2003).

1. Throughout the marriage, the parties lived in a home purchased by Husband prior to the marriage. In April 2000, Husband executed and recorded a warranty deed transferring ownership in the home to Wife in consideration for her "love and affection." At the final hearing, Husband claimed and the trial court agreed that Wife held the property in an implied resulting trust for Husband because he conveyed the property to Wife for the purpose of protecting it from potential future creditors. We disagree.

An implied trust is "a trust in which the settlor's intention to create the trust is implied from the circumstances, and which meets the requirements of Code Sections 53-12-90 through 53-12-93." OCGA § 53-12-2(3). An implied resulting trust may arise where: (1) an express trust is created but fails for any reason; (2) a trust is fully performed without exhausting all of the trust property; or (3) a purchase money resulting trust is established. OCGA § 53-12-91. In this case, Husband presented no evidence that an express trust was created or that a trust was fully performed without exhausting all of the trust property. Thus, to prove his claim that the conveyance of the marital home to Wife gave rise to a resulting trust, Husband must overcome the presumption under Georgia law that the conveyance was a gift. See OCGA § 53-12-92(c) (gift presumed if payor of consideration and transferee are husband and wife). To rebut the presumption, Husband was required to prove by clear and convincing evidence, inter alia, that a resulting trust was contemplated by both parties by way of an understanding or agreement. See Ford v. Ford, 243 Ga. 763(1), 256 S.E.2d 446 (1979) (testimony that husband placed house in wife's name to protect property from prospective creditors but intended to maintain joint interest therein insufficient to overcome presumption in absence of understanding or agreement with wife); Scales v. Scales, 235 Ga. 509, 220 S.E.2d 267 (1975) (evidence husband conveyed property to wife to protect it from potential creditors insufficient to rebut presumption of gift). The record in this case is devoid of any evidence of mutual intent to create a trust and Husband offered no evidence of a mutual understanding or agreement at the time the conveyance was made. Accordingly, the trial court erred in finding that Wife held the property in trust for Husband and awarding the marital home to Husband. 2. Wife also challenges the trial court's classification of a $400,000 payment from Husband's employer to Husband as a gift, thus excludable from the marital estate. During the marriage, Husband was employed by Quality Finishings, Inc., the sole shareholder and president of which was Husband's father, Charles Brock. In tax year 2000, Quality Finishings paid Husband, in addition to his regular salary, a $400,000 payment which the corporation classified on its tax return as compensation and deducted as a business expense. At trial, Husband's father testified that despite having paid the $400,000 through the corporation and taking a $400,000 deduction on the corporate tax return, the payment was intended as a gift from father to son. Relying solely on Mr. Brock's testimony, the trial court held that the $400,000 was a gift.

To constitute a valid gift under OCGA § 44-5-80, the donor must intend to give the gift, the donee must accept the gift, and the gift must be delivered. Avera v. Avera, 268 Ga. 4(4), 485 S.E.2d 731(1997). The burden is on the person claiming the gift to prove all essential elements. Whitworth v....

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13 cases
  • Rollins v. Smith
    • United States
    • Georgia Court of Appeals
    • October 30, 2019
    ...discretion of the trial court to award attorney fees to a party in a divorce action. See OCGA § 19-6-2 (a) (1) ; Brock v. Brock , 279 Ga. 119, 121 (4), 610 S.E.2d 29 (2005) (finding no abuse of the trial court’s discretion in not awarding attorney fees to wife in divorce action). Rollins th......
  • Mallard v. Mallard
    • United States
    • Georgia Supreme Court
    • June 1, 2015
    ...payment is a gift and has the status of marital property. Coe v. Coe, 285 Ga. 863, 864–865(1), 684 S.E.2d 598 (2009) ; Brock v. Brock, 279 Ga. 119, 610 S.E.2d 29 (2005). Consequently, even if the superior court wholly discounted Husband's uncontroverted testimony, which was against Husband'......
  • Roberts v. Smith
    • United States
    • Georgia Court of Appeals
    • June 20, 2017
    ...but such presumption shall be rebuttable by clear and convincing evidence." OCGA § 53-12-131 (c) ; see also Brock v. Brock , 279 Ga. 119, 120 (1), 610 S.E.2d 29 (2005) (discussing gift presumption). Applying this principle here, the appellants contend that the estate is not entitled to the ......
  • Smith v. State
    • United States
    • Georgia Supreme Court
    • February 21, 2005
  • Request a trial to view additional results
2 books & journal articles
  • § 6.02 Property Acquired by Gift
    • United States
    • Full Court Press Divorce, Separation and the Distribution of Property Title CHAPTER 6 Types of Property That Frequently Are Designated Separate Property by Statute
    • Invalid date
    ...Mayhew v. Mayhew, 205 W.Va. 490, 519 S.E.2d 188 (1999).[29] Brown v. Brown, 348 N.J. Super. 466, 792 A.2d 463 (2002).[30] Brock v. Brock 279 Ga. 119, 610 S.E.2d 29 (2005).[31] See Richardson v. Richardson, 280 Ark. 498, 659 S.W.2d 510 (1983). See also: Iowa: In re Marriage of Vrban, 359 N.W......
  • Are We Witnessing the Erosion of Georgia's Separate Property Distinction?
    • United States
    • State Bar of Georgia Georgia Bar Journal No. 13-1, August 2007
    • Invalid date
    ...S.E.2d at 593. 37. Id. at 462, 339 S.E.2d at 593. 38. Baker v. Baker, 280 Ga. 299, 300, 627 S.E.2d 26, 27-28 (2006). 39. Brock v. Brock, 279 Ga. 119, 120, 610 S.E.2d 29, 31 (2005). 40. See O.C.G.A. 53-12-92. 41. See Brock, 279 Ga. at 120-21, 610 S.E.2d at 31. 42. Stanley v. Stanley, 281 Ga.......

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