Cone v. Cone
| Decision Date | 07 May 1976 |
| Citation | 331 So.2d 656 |
| Parties | Helen B. CONE v. Jack B. CONE. SC 1595. |
| Court | Alabama Supreme Court |
Smith & Smith, Dothan, for appellant.
Samuel L. Adams, Dothan, for appellee.
Appellant, Mrs. Helen B. Cone, appeals from a declaratory judgment adjudging the ownership of certain property (title to which is held in Mrs. Cone's name) to be in her ex-husband, appellee Jack B. Cone.
Appellee, Jack B. Cone filed a declaratory judgment complaint against appellant Helen B. Cone on August 2, 1973, setting forth that he and Mrs. Cone were divorced on December 14, 1972, and that during their marriage they owned certain real and personal property and that portions of said property had been purchased with his funds and placed in his wife's name in trust. It is alleged that a resulting trust was established to provide protection from the husband's judgment creditors because of the speculative nature of his business ventures. The wife filed a motion to dismiss the complaint, which was denied. She then filed an answer and trial was set for November 27, 1973.
Over objection of Mrs. Cone, the trial court consolidated this declaratory judgment case No. 6037 with: the earlier divorce case No. 5853; a previously filed declaratory judgment case No. 5911 relating to certain Daleville property held in Mrs. Cone's name; and a previously filed detinue case No. 7782 relating to two trucks.
On July 16, 1974, the trial court entered a final judgment decreeing that, of the property held in Mrs. Cone's name, Mr. Cone was to receive the following items: one 1965 Chevrolet pickup truck; one 1955 or 1957 GMC dump truck; a parcel of land in Daleville, Alabama; and the benefits of a lease of the Daleville property. Mrs. Cone was awarded all real property in Houston County. Each was awarded their own personal property.
On this appeal, Mrs. Cone cites error in the consolidation of this declaratory judgment action with the earlier divorce action, the declaratory judgment suit, and the detinue suits. Mrs. Cone insists that the divorce decree of December 14, 1972, operates as a bar to these proceedings eight months later which adjudicated and granted Mr. Cone's prayer for relief in this declaratory judgment. She further claims that no resulting trust was created due to the legal presumption that a transfer of title from husband to wife is intended as a gift of the property. The record shows that the parties were in disagreement as to the source of the funds which were used to purchase the items at issue. Mrs. Cone asserts that she owned and paid for the property awarded to her husband and that, therefore, the award to her husband is in the nature of alimony. Mrs. Cone argues that Alabama law does not recognize alimony in favor of a husband. Furthermore, she argues, once a final divorce decree has been issued, a suit for alimony can no longer be maintained.
The next error contended for by Mrs. Cone arises from an alleged failure on the part of the court clerk to notify her of the decree dated July 16, 1974. Mrs. Cone relies on Rule 60(b) of the Alabama Rules of Civil Procedure for the proposition that she was entitled to be relieved from the decree due to her failure to receive notice of it. Rule 60(b) A.R.C.P. reads: '(T)he court may relieve a party . . . from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; . . . or (6) any other reason justifying relief from the operation of the judgment.'
On October 7, 1974, Mrs. Cone moved to set aside the judgment rendered in the cause under Rule 60. The motion was set down for a hearing on October 30, 1974. On November 25, 1974, the motion was denied. It is contended that this was error and that the evidence was insufficient to support a resulting trust. Finally, it is insisted that the trial court erred in rendering the award of the property to Mr. Cone.
Although Mrs. Cone has raised the several claims of error hereinabove set out, her strongest argument is that the trial court erred in awarding the property (title to which was in Mrs. Cone) to Mr. Cone on the basis of a resulting trust. This is the only error we need consider in view of the result we reach.
According to Alabama case law, '(a) resulting trust is a creature of equity, based on the presumption that he who furnishes the consideration for the purchase of lands intends the purchase for his own benefit.' Leonard v. Duncan, 245 Ala. 320, 322, 16 So.2d 879, 881 (1944). Resulting trusts have been recognized under three different situations (Comment, The Law of Trusts in Alabama, 25 Ala.L.Rev. 467, 470--71 (1973)), two of which are not relevant to this discussion since they involve express trusts. The third situation under which a resulting trust may arise occurs when 'property is purchased and the purchase price is paid by one person and at his direction the vendor transfers the property to another person . . .' Restatement (Second) of Trusts § 404, comment A (1959).
The facts of the instant case do not bring it under this third situation. The property here in question was not purchased with the funds of one party and title taken in the name of the second. On the contrary, here the property was purchased by Mr. Cone and title was taken in his name. It was not until several years subsequent to his purchase that Mr. Cone transferred title to Mrs. Cone. Thus, the elements of a resulting trust are not present.
Moreover, even where there are...
To continue reading
Request your trial
-
May v. A Parcel of Land
...guidance that the parties' real intent is "reflected in the conditions and circumstances attending the transaction." Cone v. Cone, 331 So.2d 656, 658 (Ala.1976) (citation Fortunately, the questions of whether a taxpayer had the "real intent" to gift property to his spouse and, alternatively......
-
Van Hoof v. Van Hoof
...applies alike to realty and personalty."); Mandelcorn v. Mandelcorn, 228 Ala. 590, 593, 154 So. 909, 911 (1934). 15. In Cone v. Cone, 331 So.2d 656 (Ala. 1976), this Court held that the facts before it did not present a resulting-trust situation. Nevertheless, it analyzed the facts under th......
-
Campbell v. Campbell
...a gift. Although it is the law generally that a conveyance of real property from the husband to the wife is presumed a gift, Cone v. Cone, Ala., 331 So.2d 656 (1976) Citing Bogert, Trusts & Trustees § 459 (2d ed. 1964); Roubicek v. Roubicek, 246 Ala. 442, 21 So.2d 244 (1945), this presumpti......
-
Abston v. Estate of Abston
...a creditor, which, the estate says, is unconscionable conduct that will bar the enforcement of a resulting trust. Citing Cone v. Cone, 331 So.2d 656 (Ala.1976), the estate maintains that "`a court of equity will never imply or enforce a trust, springing out of transaction, in which the part......