Carden v. Carden

Decision Date11 October 1984
Docket NumberNo. 41299,41299
Citation253 Ga. 546,322 S.E.2d 226
PartiesCARDEN v. CARDEN.
CourtGeorgia Supreme Court

Amanda F. Williams, Brunswick, for Diane G. Carden.

Hopkins & Strickland, C. Deen Strickland, Michael D. DeVane, Waycross, for John H. Carden.

WELTNER, Justice.

The question in these divorce proceedings is whether the trial court should have granted the former wife's motion for judgment notwithstanding the verdict upon the ground that the former husband was estopped to claim a resulting trust in property which he conveyed to her during the existence of the marriage.

Carden sought to aid his son in establishing a business. He co-signed his son's note, the business failed, and the creditor demanded payment. Carden first attempted to assert that the creditor had agreed not to enforce the note against him in the event of default, but to look solely to the business inventory, although the obligation to pay was unqualified. 1 Failing in that, Carden transferred his real property to Mrs. Carden, thereby denuding himself of record title. Having done so, he then undertook to persuade his creditor, again, to accept the business inventory in satisfaction of the note, arguing that he had no assets from which any judgment could be satisfied, and that the creditor should, by virtue of his reduced financial circumstances, accept the business inventory.

The record is devoid of any suggestion that the transfer was effected for any other purpose. Indeed, the reason for the transfer is undisputed.

After this effort, the debt was paid in full by Carden, without suit having been filed.

Carden insisted that the transfer created a resulting trust in his favor, and the jury agreed with him. Mrs. Carden insisted that the transfer was fraudulent (being made with the sole purpose of hindering, or delaying, or defrauding Carden's creditor) and that Carden should not be permitted to claim a resulting trust.

1. It is settled that our decision in Stokes v. Stokes, 246 Ga. 765(3), 273 S.E.2d 169 (1980), did not supplant the law of resulting trusts, as established by the General Assembly. See the discussion in Harrell v. Harrell, 249 Ga. 170, 172, 290 S.E.2d 906 (1982)--that case standing for the proposition that the existence vel non of such a trust must turn upon whether or not there was, in fact, an understanding of such as between the parties, and that this may be established, as other probata, by circumstantial evidence. 249 Ga. at 172, 290 S.E.2d 906.

2. Whether or not any transfer is fraudulent is a question of fact, and, given the existence of a genuine issue of material fact, must be resolved by a jury. Goodman v. Lewis, 247 Ga. 605(2), 277 S.E.2d 908 (1981). There we observed: "The jury was also authorized to find that these conveyances were not made with the intent to delay or defraud creditors. Accordingly, the trial judge did not err in overruling the appellant's motion for directed verdict. 247 Ga. at 606. A similar factual issue appears in Talmadge v. Talmadge, 241 Ga. 609, 247 S.E.2d 61 (1978). "The evidence does not demand a verdict of illegal tax evasion as distinguished from legal tax avoidance by the husband.... Accordingly, it was not error for the trial court to submit the issue of 'unclean hands' to the jury for special verdict." 241 Ga. at 611, 247 S.E.2d 61.

These cases are to be distinguished, however, from the case before us because, in both cases, there existed a genuine issue of material fact as to the question of fraudulent intent.

Further, the fact that Carden paid the entire note to the creditor, without the necessity for suit, is of no value to him, as the critical inquiry is his intent at the time of transfer. OCGA § 18-2-22 provides: "The following acts by debtors shall be fraudulent in law against creditors and others and as to them shall be null and void ... (2) Every conveyance of real or personal estate, by writing or otherwise, and every bond, suit, judgment and execution, or contract of any description had or made with intention to delay or defraud creditors, where such intention is known to the taking party ...." Manifestly, intent cannot be judged fraudulent by examining whether it has succeeded in delaying or defrauding a creditor.

The record establishes clearly that, when Carden discovered that personal demand would be made upon him, he went to see his lawyer and discussed the situation with him, and that his lawyer thereafter prepared a deed for the conveyance of the property to the wife. "Was your wife aware of this particular situation? Yes, sir ... Did you discuss the situation that you may lose your property and house? Yes, sir ... And, sometime during that period of time, Mr. Thigpen prepared a deed, did he not? Yes, sir."

Carden's transfer comes plainly within the ambit of Whitley v. Whitley, 220 Ga. 471, 139 S.E.2d 381 (1964), Langan v. Langan, 224 Ga. 399, 162 S.E.2d 405 (1968), and Griggs v. Griggs, 242 Ga. 96, 249 S.E.2d 566 (1978).

In each of these cases, there was no issue of fact as to the intent and purpose of the transferor, and in each case that intent was fraudulent--either in avoidance of creditors or of taxation. In each case we refused to permit the question of...

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4 cases
  • Interfinancial Midtown, Inc. v. Choate Constr. Co.
    • United States
    • Georgia Court of Appeals
    • October 20, 2017
    ...on the eve of trial was no reason for the court to discontinue the fraudulent conveyance trial. Id. See also Carden v. Carden, 253 Ga. 546, 547 (2), 322 S.E.2d 226 (1984) ("fact that [debtor] paid the entire note to the creditor, without the necessity for suit, is of no value to him, as the......
  • Sparks v. Sparks
    • United States
    • Georgia Supreme Court
    • March 12, 1987
    ...a 66 and 2/3 percent interest. Nancy subsequently filed a motion for new trial, making a twofold argument based on Carden v. Carden, 253 Ga. 546, 322 S.E.2d 226 (1984). She first asserted that under Carden John was barred from claiming a resulting trust in the residence, and that title to t......
  • Roach v. Roach, A14A0281.
    • United States
    • Georgia Court of Appeals
    • June 11, 2014
    ...Appellant does not alter our conclusion, “as the critical inquiry is [Appellee's] intent at the time of transfer.” Carden v. Carden, 253 Ga. 546, 547(2), 322 S.E.2d 226 (1984) (trial court erred in denying wife's motion for judgment notwithstanding verdict on the issue of whether she held p......
  • Snell v. Snell, 45183
    • United States
    • Georgia Supreme Court
    • July 6, 1988
    ...a charge on the equitable doctrine of unclean hands. See Williams v. Williams, 255 Ga. 264, 336 S.E.2d 244 (1985); Carden v. Carden, 253 Ga. 546(2), 322 S.E.2d 226 (1984). The trial court, however, did not charge on the doctrine. Moreover, when the court asked for objections to the charge, ......

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