HAROLD TRAVIS v. PEGGY TRAVIS
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RENDERED: June 18, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1997-CA-001478-MR
NO. 1997-CA-001528-MR
HAROLD TRAVIS
APPELLANT/CROSS-APPELLEE
APPEAL AND CROSS-APPEAL
FROM MCCRACKEN CIRCUIT COURT
HONORABLE JAMES R. DANIELS, JUDGE
CIVIL ACTION NO. 95-CI-001000
v.
PEGGY TRAVIS
APPELLEE/CROSS-APPELLANT
OPINION
AFFIRMING
** ** ** ** ** ** **
BEFORE:
BUCKINGHAM, EMBERTON and HUDDLESTON, Judges.
HUDDLESTON, Judge.
Harold Travis appeals and Peggy Travis cross-
appeals from a final decree that resolved issues concerning the
value and ownership of certain real property owned by the parties
when their marriage was dissolved.
Harold and Peggy were married on June 28, 1989.
Harold
is a real estate investor and is also employed at Westvaco in plant
maintenance.
Peggy is employed as a deputy clerk in the McCracken
County Clerk's office.
Before
Harold
and
Peggy
married,
Harold
contributed
$24,250.00 toward the purchase of a lot located at 145 Forest View
Cove Drive in Paducah upon which was built the parties' marital
residence.
Title was held by Harold and Peggy as joint tenants
with right of survivorship.
Soon after Harold and Peggy married,
title to a twelve-apartment complex located at 2336 Hovekamp Road
and a rental house at 5437 Stevin Drive were transferred to and
subsequently held by Harold and Peggy as joint tenants with right
of survivorship.
Harold and Peggy separated on November 10, 1995, and
their marriage was dissolved on January 14, 1997.
In a June 3,
1997, order, McCracken Circuit Court found that Harold had gifted
an undivided one-half interest in the marital residence property at
145 Forest View Cove Drive to Peggy, but that the transfer of the
property located at 2336 Hovekamp Road and 5437 Stevin Drive to
Peggy did not amount to a gift because Harold lacked donative
intent.
On appeal, Harold claims that the court erred in finding
that the transfer of property located at 145 Forest View Cove Drive
to Peggy had been intended as a gift.
Property acquired by a
spouse during the marriage is presumed to be marital.
Stat. (KRS) 403.190(3).
Ky. Rev.
However, property obtained by "gift,
bequest, devise, or descent" is excepted by KRS 403.190(2)(a). The
Supreme Court addressed this issue in Rakhman v. Zusstone, Ky., 957
S.W.2d 241 (1997), which, like this case, involved a dispute as to
whether the transfer of a residence amounted to a gift or whether
a resulting trust should be imposed.
The parties had cohabitated
for some thirteen years and had two children.
2
Rakhman asserted
that the house, which was titled in her name alone, was a gift to
her from Zusstone after the birth of their second child. Zusstone,
on the other hand, asserted that Rakhman merely held the property
in trust for his benefit.
To determine whether the house was a gift, the Supreme
Court looked at the relationship between Zusstone, the payor, and
Rakhman, the transferee. The Court said that if the transferee was
the natural object of the payor's bounty then it is inferred that
the payor intended to make a gift to the transferee.
Relying on
the Restatement (Second) of Trusts ยง442 cmt. a (1959), the court
said that:
It is rather a question of whether the transferee stands
in such a relationship to the payor that it is probable
that the payor intends to make a gift to the transferee.
It is inferred that he does intend to make a gift if the
transferee is by virtue of the relationship a natural
object of his bounty.
Id. at 244.
If the transferee is within the class of persons who
would be the natural object of the payor's bounty, there is a
rebuttable presumption of a gift.
The payor must overcome the
presumption by producing "the same quantum of evidence as is
required to overcome any other rebuttable presumption."
245.1
Id. at
Once the payor has overcome the presumption, the transferee
1
Ky. R. Evid. (KRE) 301 provides that:
In all civil actions and proceedings when not otherwise
(continued...)
3
bears the "risk of nonpersuasion."
Id.
"This burden can also be
described as the 'preponderance of the evidence' or 'more probably
true than not.'"
Id.
In the instant case, Peggy and Harold had
the necessary relationship--as husband and wife--for Peggy to be
considered the natural object of Harold's bounty.
The next consideration is the circumstances surrounding
the transfer of the property.
Peggy testified that Harold placed
the deed in joint names because of their impending marriage and
because they had "decided to build a house together." (The parties
later mortgaged the property to obtain funds to construct the
marital
residence.)
Peggy
also
testified
that
Harold
never
objected to the conveyance until after the marriage was dissolved
and that there was not an agreement that she would hold title in
trust for him.
Peggy's evidence is sufficient to invoke the
presumption that the transfer of the property was intended as a
gift.
Harold, on the other hand, testified that he did not
intend for Peggy to have half of the property.
He insists that its
transfer was simply a way for him to get "peace and quiet."
The
circuit court made the following pertinent findings regarding the
martial residence property:
(...continued)
provided for by statute or by these rules, a presumption
imposes on the party against whom it is directed the
burden of going forward with evidence to rebut or meet
the presumption, but does not shift to such party the
burden of proof in the sense of the risk of
nonpersuasion, which remains throughout the trial upon
the party on whom it was originally cast.
4
Harold contributed $24,250.00 of his non-marital funds
which was used to purchase the lot. (Peggy claims to have
contributed to the purchase price; however, she was
unable to trace any contribution towards the purchase
price).
deeded
Harold chose, however, to have this property
to
him
survivorship.
jointly
with
Peggy
with
right
This occurred before the marriage.
of
Peggy
claims that this constituted a gift to her of one-half of
the
value
considered
of
the
the
lot.
source
Once
of
the
again,
money
the
Court
has
with
which
the
proposed gift was purchased, the intent of the donor at
the time as to the intended use of the property, the
status of the marriage relationship at the time of the
transfer, and whether there was any valid agreement that
the transferred property was to be excluded from the
marital property.
The Court is persuaded and so finds
that Harold intended to make a gift to Peggy of one-half
of the value of the lot.
After the gift, the parties
jointly owned one-half of the lot.
The parties then
married and obtained a construction loan to build their
residence . . . .
In such matters we cannot substitute our judgment for that of the
trial court unless its findings are clearly erroneous, that is, are
unsupported by probative evidence.
Ky. R. Civ. Proc.(CR) 52.01;
Schott v. Citizens Fidelity Bank & Trust, Ky. App., 692 S.W.2d 810
(1985).
It is within the exclusive province of the trier of fact
5
to pass on the credibility of witnesses and to determine what
weight is to be given to the evidence presented at trial.
Ironton
Fire Brick Company v. Burchett, Ky., 288 S.W.2d 47 (1956).
With
these considerations in mind, we hold there is sufficient evidence
to support the trial court's finding that Harold intended to give
an undivided one-half interest in the marital residence property to
Peggy.
Peggy's cross-appeal concerns the circuit court's finding
that the two rental properties, held by Harold and Peggy as joint
tenants with joint right of survivorship, were not gifts.
Peggy
contends that the properties were presumed gifts since she was the
natural of Harold's bounty and that, as a matter of law, Harold
failed to present sufficient evidence to rebut the presumption. In
determining whether property is a gift, consideration is given to
the intent of the donor at the time as to the intended use of the
property.
O'Neill v. O'Neill, Ky. App.,600 S.W.2d 492 (1980).
Harold testified that he received the rental properties in a
previous divorce and never intended for these properties to become
a gift to Peggy.
He also testified, as before, that its transfer
was a way for him to get "peace and quiet."
While the evidence is
conflicting, there was sufficient evidence to support the circuit
court's finding that Harold never intended to give the rental
property to Peggy.
Clearly, the use of the property was a
pertinent factor.
Returning to the direct appeal, Harold argues that the
circuit court erred in determining the value of (1) a rental duplex
6
located at 2327 Hovekamp Road; (2) an investment lot located at
2334
Hovekamp
Road;
(3)
a
12-unit
apartment
complex
at
2336
Hovekamp Road; (4) an investment lot at 2346 Hovekamp Road; (5) a
single family residence rental property located at 5437 Stevin
Drive; (6) a single family residence at 615 Valley Street; and (7)
an investment lot at 916 Lake View Drive.
He contends that the
circuit court should have used the McCracken Property Valuation
Administrator's (PVA's) records instead of relying on the testimony
of Peggy's expert witness, Donnie Roberts, a real estate agent.
In Robinson v. Robinson, Ky. App., 569 S.W.2d 178 (1978),
this Court addressed the issue of whether PVA records, in the
absence of tetimony from the PVA or one of his deputies, may be
relied on to fix the value of property at issue:
The only other evidence given in this case was an exhibit
filed by the appellant purporting to list the assessed
value
of
this
property
Valuation Administrator.
according
to
the
Property
The PVA did not testify, did
not give any basis for such valuation, was not subject to
examination by the parties or the court, and was not
subject to cross-examination.
was without probative value.
Basically, his evidence
As stated in the case of
Commonwealth v. Rankin, [Ky. App., 346 S.W.2d 714, 717
(1978)], "[i]n determining the value of land . . .
assessed value, though not conclusive, can be considered
in connection with other evidence of value of property."
In this case there was no other evidence concerning the
7
value of the property.
The evidence offered by the
appellant will just simply not suffice, and it was
manifest error for the court to place a value on the
property without more.
If the attorneys practicing
domestic relations law do not give the court adequate
tools with which to work, they can hardly complain of
inequitable results.
Id. at 180 (original emphasis).
In the instant case, as in
Robinson, Harold did not introduce any evidence other than the PVA
records to establish the value of the properties.
His proof on
this issue lacked probative value.
As a general rule, a trial court's valuation in a divorce
action will not be disturbed unless it is clearly contrary to the
evidence. Underwood v. Underwood, Ky. App., 836 S.W.2d 439 (1992).
Donnie Roberts testified concerning the fair market value of the
property.
The determination of credibility and weight to be given
Robert's testimony was a peculiar function of the trier of fact.
Singer v. Singer, Ky., 440 S.W.2d 783 (1969).
The circuit court's
determination of market value based upon Robert's testimony was not
clearly erroneous.
The decree is affirmed.
All CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Tod D. Megibow
MEGIBOW & EDWARDS
Paducah, Kentucky
James A. Harris, Jr.
Paducah, Kentucky
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