Todkill v. Todkill

• Decision Date: 07 April 1972
• Docket Number: No. 6446,6446
• Citation: 88 Nev. 231,495 P.2d 629
• Parties: Gladys TODKILL, Appellant, v. Burton A. TODKILL, Respondent.
• Court: Nevada Supreme Court

Page 629

495 P.2d 629

88 Nev. 231

Gladys TODKILL, Appellant, v. Burton A. TODKILL, Respondent.

No. 6446.

Supreme Court of Nevada.

April 7, 1972.

Rehearing Denied May 3, 1972.

Morton Galane, and Miriam Shearing, Las Vegas, for appellant.

Edwin A. Adamson, and Charles W. Deaner, Las Vegas, for respondent.

OPINION

BATJER, Justice:

On October 8, 1970, the district court entered a decree of divorce granting Burton A. Todkill, the respondent, a divorce, finding all property in dispute to be the sole and separate property of respondent, concluding as a matter of law that there was no community property belonging to the parties and awarding Gladys Todkill, the appellant, alimony and attorney fees.

Both parties appear to be satisfied with the termination of the marital relationship, and neither the divorce, the alimony nor attorney fees are an issue in this appeal which is taken only from that portion of the decree designating certain assets to be the separate property of respondent and awarding all of that property to him.

Respondent has been a resident of Nevada since 1948. He and appellant were married in this state in July of 1961. At the time of the marriage appellant was working as a receptionist in a doctor's office in Las Vegas, Nevada, and respondent was managing his automobile agency (Todkill Lincoln-Mercury) in the same city. After the marriage, appellant continued working for only about two months and respondent continued to manage his automobile agency until it was sold in October, 1966. Respondent worked full time at the agency and received approximately $3,000 per month, plus a bonus of an undertermined amount at the end of each year. It is undisputed that in 1944 he inherited $750,000 in stock from his father's estate and that the automobile agency was sold in 1966 for ($5.00) dollars, plus the assumption by the purchaser of nearly a million dollars in liabilities.

In June of 1962, respondent purchased a lot at 7082 Mira Vista, Sierra Vista Ranchos, Clark County, Nevada for $10,000. He testified that this money came from the sale of stock which he inherited from his father. He took title to this property solely in his name. A loan of $42,400 was obtained in July of 1962 for the purpose of constructing a house on the property. This loan was secured by a deed of trust of the property signed by both respondent and appellant. Respondent testified that he borrowed an additional $42,000, secured by his inherited stock, to complete the construction of the home. The house and lot were transferred by deed from respondent to appellant on October 27, 1965. Respondent claims he initiated the transfer to protect the property from creditors, as his business was failing at the time. Appellant denied that there was any conversation regarding 'safekeeping' from creditors and testified that the house and lot were a birthday present. (Her birthday is October 28). After the transfer, respondent continued to pay the taxes and to make all payments on the promissory note secured by the trust deed. Prior to October 1966, these payments were made from the bank account where he deposited his salary and bonuses. The district court found that the home property had been transferred to appellant to avoid its seizure by respondent's creditors, and that appellant had orally agreed to hold it in trust for respondent and to reconvey it at his request. The district court then went on to find this property to be the sole and separate property of respondent.

In 1962, respondent, with two other persons, formed C.B.C. Inc., for the purpose of purchasing, improving and selling parcels of real estate. The corporation purchased a parcel of land on Paradise Road in Clark County. Respondent testified that he used proceeds from the sale of his inherited stock, plus a bank loan secured by more of the same stock, to purchase his interest in the corporation. Appellant testified that she was not sure where respondent obtained the funds to make this purchase. Stubs in the C.B.C. Inc., stock record book show that a one-sixth interest in the corporation was issued to respondent on November 29, 1965, and a one-sixth interest was, on the same date, issued to appellant. Respondent testified that he could not recall why his wife had been given a one-sixth interest. He did testify, however, that he recalled turning the certificates over to her for the purpose of safekeeping. On January 12, 1966, the stock certificate issued to respondent was transferred by him to appellant. Appellant testified that the transfer was made because respondent wanted her to 'have some security,' but respondent stated he could not recall why the transfer was made.

The sole asset of C.B.C. Inc., consisting of the Paradise Road property, was sold in June of 1969 for $800,000. Although appellant held in her name a certificate evidencing a one-third interest, respondent personally received $302,779.74 from the sale. This represented a return of his invested capital plus his share of the profit. The district court awarded the proceeds to respondent and held that the transfer was merely to avoid creditors and that there was an oral agreement to reconvey.

Respondent purchased property at 2000 Las Vegas Boulevard South in 1950. It was at this location that he operated his automobile agency. On November 9, 1962, after his marriage to appellant, he purchased a parcel of property near the agency referred to as the Commerce Street property. Title to this property was taken in the name of Todkill Lincoln-Mercury, Inc. Respondent owned all of the stock in that corporation. The purchase of the Commerce Street property was financed by encumbering that property and the Las Vegas Boulevard South (agency) property with a deed of trust. The payments toward reducing that encumbrance were made by Todkill Lincoln-Mercury, Inc., from 1962 until the agency was sold in 1966.

In May of 1968, the parties discussed the purchase of a lot adjoining the 7082 Mira Vista property. Respondent admitted that he was short on cash and testified that he told appellant she would have to get the $750 for the down payment. Appellant did consummate the transaction, and she put the property in her name. Respondent alleged that appellant used his money to make the purchase, but appellant claimed that she made all payments and paid all taxes with her own money which respondent had given her 'for security.' The district court found this lot to be the sole and separate property of respondent.

Appellant contends that the district court erred in finding no community property belonging to the parties, but instead finding all property purchased by the parties during the marriage to be the sole and separate property of respondent and holding that the property conveyed by respondent to appellant during marriage was held by her in trust for him.

It is undisputed that the home property at 7082 Mira Vista, the C.B.C. Inc., stock, the Sierra Vista lot adjoining the home property and the Commerce Street property were acquired during the marriage. Properties acquired during marriage are presumed to be community property, ¹ and the presumption can only be overcome by clear and certain proof. Carlson v. McCall, 70 Nev. 437, 271 P.2d 1002 (1954); Lake v. Bender, 18 Nev. 361, 7 P. 74 (1884).

In adjudicating marital rights we have previously held that if there is substantial evidence to support the lower court's findings we will not reverse that determination upon appeal. Shane v. Shane, 84 Nev. 20, 435 P.2d 753 (1968); Zahringer v. Zahringer, 76 Nev. 21, 348 P.2d 161 (1960); Ormachea v. Ormachea, 67 Nev. 273, 217 P.2d 355 (1950). Likewise, when adjudicating marital property rights, if there is clear and convincing evidence to support a lower court's finding that property purchased during marriage is separate property we will not reverse that determination on appeal. Kelly v. Kelly, 86 Nev. 301, 468 P.2d 359 (1970).

Here we will not disturb the district court's determination that property acquired by the Todkills during marriage, regardless of how title was held, was the husband's separate property. The district court correctly found that under NRS 123.130 those assets were the separate property of respondent. Whether or not the evidence was clear and convincing and sufficient to overcome the presumption that the property acquired during marriage was community property was a question for the district court. The evidence offered by the respondent, together with the reasonable inferences to be drawn therefrom, can be deemed clear and convincing. On the other hand, appellant failed to offer clear and convincing proof that the purchases were made with community funds or credit or acquired by the respondent's community toil or talent. Kelly v. Kelly, supra; Barrett v. Franke, 46 Nev. 170, 208 P. 435 (1922).

Shortly after the marriage appellant terminated her employment and thereafter made no contribution of wages or property to the community. At the time of the marriage she owned some separate property but it is in no way involved in this case. The only community property generated and received by the parties during the marriage was respondent's salary of $3,000 per month, together with undertermined bonuses from Todkill Lincoln-Mercury, Inc., which business enterprise respondent had purchased prior to the marriage with money from his father's estate. The salary and bonuses were received by respondent until the agency was sold in October, 1966. There is substantial evidence that the salary and bonuses were used to defray family living expenses and clear and convincing evidence to show that any of the salary and bonuses were used to purchase the disputed property is absent. Kelly v. Kelly, supra.

However, it is undisputed that during the marriage respondent transferred his one-sixth interest in the C.B.C. Inc., stock and all of his interest in the property at 7082 Mira Vista to appellant. The district court found that...