KERLEY VS. KERLEY (DIVORCE PROPERTY & ALIMONY)

Statutes cited

Key holdings

Practitioner summary

Per Curiam (Opinion on Rehearing). The court granted rehearing of its prior decision in Kerley v. Kerley, 111 Nev. 462, 893 P.2d 358 (1995), which had remanded the apportionment of the Verde Way real property. The prior opinion relied in part on the district court's erroneous legal conclusion - which the court acknowledged it had overlooked - that the 1982 joint-tenancy deed and 1983 quitclaim deed, both executed during the marriage, created a presumption of community property under NRS 123.220 that Thomas had failed to rebut. Correcting that error, the court reaffirmed the settled rule that an interspousal conveyance of title to real property creates a presumption of gift rebuttable only by clear and convincing evidence, citing Graham v. Graham, 104 Nev. 473, 760 P.2d 772 (1988); Todkill v. Todkill, 88 Nev. 231, 495 P.2d 629 (1972); Peardon v. Peardon, 65 Nev. 717, 201 P.2d 309 (1948); and Petition of Fuller, 63 Nev. 26, 159 P.2d 579 (1945). Because property acquired by gift during marriage is separate property under NRS 123.130 and thus not community property under NRS 123.220, the 1983 quitclaim deed vesting title in Thomas alone is presumed a gift of Nancy's interest unless clear and convincing evidence establishes otherwise. The court granted rehearing and remanded the Verde Way issue for further proceedings consistent with the corrected legal standard; petitioner's remaining contentions were found without merit.

In plain language

This is a rehearing of the Court's earlier decision in the same divorce, which had dealt with how to divide a house on Verde Way in Gardnerville. In the first decision, the Court relied on the trial court's conclusion that the house was community property. On rehearing, Thomas Kerley pointed out that the trial court's legal reasoning was wrong, and the Supreme Court agreed it had overlooked that error. The key facts: Thomas owned the house before the marriage. In 1982 he deeded it to himself and his wife Nancy as joint tenants; then in 1983 the couple signed a quitclaim deed putting the title back in Thomas's name alone. The trial court had said that because these deeds happened during the marriage, the house was presumed to be community property. The Supreme Court corrected this. When one spouse deeds real property to the other, Nevada law presumes a gift, and that presumption can be overcome only by clear and convincing evidence. Property acquired by gift during a marriage is separate property, not community property. So the 1983 quitclaim deed putting the house in Thomas's name only is presumed to be a gift of Nancy's interest to Thomas - making it his separate property - unless clear and convincing evidence shows otherwise. Because the earlier opinion had rested partly on the mistaken community-property premise, the Court granted rehearing and sent the Verde Way issue back to the district court to reconsider under the correct rule.