Lerch v. Lerch

Decision Date24 January 2005
Docket NumberNo. S04F1963.,S04F1963.
Citation608 S.E.2d 223,278 Ga. 885
PartiesLERCH v. LERCH.
CourtGeorgia Supreme Court

OPINION TEXT STARTS HERE

Dwight T. Feemster, Duffy & Feemster, LLP, Savannah, for Appellant.

Karen Dove Barr, Barr, Warner & Pine, Savannah, for Appellee.

FLETCHER, Chief Justice.

Donald and Barbara Lerch were married in 1994, and divorced in 2004. The Superior Court of Chatham County awarded the marital home to Husband, and, in accordance with the couple's prenuptial agreement, awarded Wife $100,000. Wife appeals, contending that the trial court erred in its decision to award the home to Husband. Because the trial court failed to properly treat the entire home as marital property, we reverse and remand to the trial court for a new equitable division of property.

During the marriage, the couple lived in a home on Skidaway Island in Savannah, Georgia that Husband had purchased prior to the marriage. In 1999, Husband executed and recorded a gift deed transferring ownership in the home property to both parties as "tenants in common" with right of survivorship. The trial court determined that as a result of the gift, half of the home qualified as marital property and the other half remained the Husband's separate property. The court then awarded the entire home to Husband, giving the portion of the home qualifying as marital property to Husband as his portion of the equitable division of marital property.

1. Normally, a gift to one spouse becomes the separate property of the recipient spouse.1 When a gift is given to the marital couple, however, the property will become marital property absent evidence of a contrary intent by the donor.2 In this case, the Husband deeded the home to both his wife and himself, to be held as "tenants in common" with right of survivorship. In so doing, Husband manifested an intent to transform his own separate property into marital property.3 Because both Husband and Wife then owned an undivided one-half interest in the property,4 the entire home should have been treated as marital property. Accordingly, the trial court's decision to treat only one-half of the home as marital property must be reversed.

2. Husband contends, in the alternative, that Wife is precluded from making a claim for the marital home by virtue of the prenuptial agreement. In that agreement, Wife promised not to make any claims against Husband's property in the event of a divorce. Even if that agreement might have precluded Wife's claim before Husband executed the gift deed, however, it certainly did not preclude such a claim afterwards. Once Husband deeded the property to the marital couple, the property ceased to qualify...

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9 cases
  • Lanier v. Lanier
    • United States
    • Georgia Supreme Court
    • January 24, 2005
  • Mallard v. Mallard
    • United States
    • Georgia Supreme Court
    • June 1, 2015
    ...payment of the Debt a gift to the marital unit. See Miller v. Miller, 288 Ga. 274, 280(2), 705 S.E.2d 839 (2010) ; Lerch v. Lerch, 278 Ga. 885(1), 608 S.E.2d 223 (2005). Moreover, in circumstances involving conveyances of real property or the payment of certain funds between spouses, there ......
  • Calloway-Spencer v. Spencer
    • United States
    • Georgia Court of Appeals
    • June 23, 2020
    ...inherited funds transformed into marital property when husband gave wife ownership interest in the accounts); see Lerch v. Lerch , 278 Ga. 885, 886 (1), 608 S.E.2d 223 (2005) (husband transformed separate property into marital property by deeding home to his wife and himself as tenants in c......
  • Grissom v. Grissom
    • United States
    • Georgia Supreme Court
    • June 4, 2007
    ...so transferred "shall become the separate property" of the recipient. Wife relies upon this paragraph, along with Lerch v. Lerch, 278 Ga. 885, 608 S.E.2d 223 (2005), in support of her argument that Husband's conveyance to himself and Wife jointly of the Fiddlers Ridge property and the Ameri......
  • Request a trial to view additional results
3 books & journal articles
  • Domestic Relations - Barry B. Mcgough and Elinor H. Hitt
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 62-1, September 2010
    • Invalid date
    ...684 S.E.2d at 600. 134. Id. at 864, 684 S.E.2d at 600. 135. Id. at 863, 684 S.E.2d at 599. 136. Id. at 864, 684 S.E.2d at 600. 137. 278 Ga. 885, 608 S.E.2d 223 (2005). 2010] DOMESTIC RELATIONS 119 which transforms the separate property into marital property, subject to equitable division."1......
  • 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
    ...28. McArthur v. McArthur, 256 Ga. 762, 763, 353 S.E.2d 486, 487-88 (1987) (quoting Hemily v. Hemily, 403 A.2d 1139, 1143 (D.C. 1979)). 29. 278 Ga. 885, 885, 608 S.E.2d 223, 224 (2005). 30. Id. at 886, 608 S.E.2d at 224. 31. Payson v. Payson, 274 Ga. 231, 232, 552 S.E.2d 839, 841 (2001) (emp......
  • The Renewed Significance of Title in Dividing Marital Assets
    • United States
    • State Bar of Georgia Georgia Bar Journal No. 16-6, April 2011
    • Invalid date
    ...v. Bloomfield, 282 Ga. 108, 110, 646 S.E.2d 207, 211 (2007). [30]"> [30]">[31]"> Id. [31]"> [31]">[32]"> Id. [32]"> [32]">[33]"> 278 Ga. 885, 608 S.E.2d 223 (2005). [33]">[34]"> Id. at 885, 608 S.E.2d at 223. [34]"> [34]">[35]"> Id. [35]"> [35]">[36]"> Id. [36]"> [36]">[37]"> Id. [37]"> [37......

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