TODKILL VS. TODKILL (DIVORCE PROPERTY & ALIMONY)

Statutes cited

Key holdings

Practitioner summary

The appeal challenged only that portion of the divorce decree characterizing certain assets as the husband's separate property and awarding them to him; the divorce, alimony, and attorney's fees were not at issue. Community property presumption: Property acquired during marriage is presumed community property, and the presumption can be overcome only by clear and certain proof. Carlson v. McCall, 70 Nev. 437, 271 P.2d 1002 (1954). The court will not reverse a finding that property purchased during marriage is separate property if supported by clear and convincing evidence. Kelly v. Kelly, 86 Nev. 301, 468 P.2d 359 (1970). The court affirmed the determination, under NRS 123.130, that assets traceable to the husband's inherited stock were his separate property; the wife failed to offer clear and convincing proof that the purchases were made with community funds, credit, or community toil or talent. Interspousal transfers / gift presumption: When a husband transfers title to his separate property into his wife's name, he is presumed to intend a gift, even if his original intent was to defraud creditors; the presumption is rebuttable only by clear and convincing evidence, the husband bears the burden of proof, and if the evidence is conflicting the presumption remains. Peardon v. Peardon, 65 Nev. 717, 201 P.2d 309 (1948); see Weeks v. Weeks, 72 Nev. 268, 302 P.2d 750 (1956). The court also reaffirmed that a constructive trust cannot be established by a mere preponderance but requires evidence that is clear, definite, unequivocal, and satisfactory. Moore v. DeBernardi, 47 Nev. 33, 220 P. 544 (1923). Application: The husband's evidence that transfers of the home and his one-sixth C.B.C. Inc. interest were in trust to avoid creditors was met by the wife's testimony that the home was a birthday gift and the stock was for her security; that conflict left the husband's proof insufficient to rebut the gift presumption. The court reversed the trust holding, directed confirmation of the home as the wife's separate property, and ordered the husband to pay her $151,389.87 plus interest (one-half of the C.B.C. Inc. sale proceeds), while confirming the adjacent Sierra Vista lot to the husband.

In plain language

Burton Todkill got a divorce from Gladys Todkill. Neither the divorce itself, the alimony, nor the attorney fees were disputed on appeal. The fight was over property. Burton had inherited $750,000 in stock from his father, and he claimed that essentially all the property acquired during the marriage - a home on Mira Vista, an interest in a real-estate corporation (C.B.C. Inc.), and other lots - was really his separate property bought with his inherited money. The trial court agreed and awarded all of it to Burton, finding no community property existed and that property he had put in Gladys's name was held 'in trust' for him to avoid his creditors. The Nevada Supreme Court agreed with part of this but reversed part. It first confirmed the general rule: property acquired during marriage is presumed to be community property, and that presumption can only be overcome by clear and certain proof. The court upheld the trial judge's finding that the assets were traceable to Burton's inherited stock and were his separate property, because that finding was supported by clear and convincing evidence and Gladys did not prove community funds or the couple's labor bought them. But the court reversed the finding that two specific items - the Mira Vista home and Burton's one-sixth interest in C.B.C. stock, both of which Burton had transferred into Gladys's name during the marriage - were held in trust for him. The law presumes that when a husband puts his separate property into his wife's name, he intends a gift to her, even if his motive was to shield it from creditors. That gift presumption can only be overcome by clear and convincing evidence, and if the evidence conflicts, the presumption wins. Here Burton said the transfers were for safekeeping in trust, but Gladys testified the home was a birthday present and the stock was given to her for security. That conflict meant Burton's proof was not clear and convincing enough to rebut the gift presumption. The court sent the case back with instructions to confirm the home as Gladys's separate property and to give her half of the C.B.C. sale proceeds ($151,389.87 plus interest), while confirming the adjacent lot to Burton.