Brock v. Brock, S04F2054.
Decision Date | 21 February 2005 |
Docket Number | No. S04F2054.,S04F2054. |
Citation | 610 S.E.2d 29,279 Ga. 119 |
Parties | BROCK v. BROCK. |
Court | Georgia Supreme Court |
OPINION TEXT STARTS HERE
Clifton M. Patty, Jr., Ringgold, for Appellant.
E. Crawford McDonald, McDonald Kinnamon & Thames, Dalton, for Appellee.
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) ( ). 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) ( ); Scales v. Scales, 235 Ga. 509, 220 S.E.2d 267 (1975) ( ). 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....
To continue reading
Request your trial-
Rollins v. Smith
...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
...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
...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
-
§ 6.02 Property Acquired by Gift
...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?
...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.......