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New Court of Appeals Decision: Property Omitted From Decree

Court of Appeals


Poveto v. Poveto, 2022 OK CIV APP 7, ___ P.3d ___

            Four months prior to their marriage in November 2000, the husband purchased a house with funds supplied by Wife. Soon thereafter, he conveyed his individual interest to himself and the wife as joint tenants with rights of survivorship. Over the course of fourteen years, the house was transferred back and forth between  husband and wife as joint tenants, and the wife as the sole owner. 

            The husband alleged that the quit claim deeds were prepared in anticipation of his death so that the wife could file them to avoid the necessity of filing a death certificate and an affidavit of surviving joint tenant in the event of his death.  Wife alleged that the husband’s conveyances were designed to avoid creditors. The trial court found that the deeds were fraudulent and that most of the deeds were not delivered.  The latter point was contrary to the evidence at trial.

            The appellate panel first noticed that property division and retention of individually owned assets are typically addressed in the divorce decree, however, “assets acquired during coverture which are omitted from the court’s division of spousal property in the decree are owned by the party in whose name title was vested before the divorce.” Chapman v. Chapman, 1984 OK 89, 692 P.2d 1369.

            The wife claimed that the husband’s petition for partition is a collateral attack on the order from the divorce court. At least one case defines ‘collateral attack’ as an ‘objection’ incidentally made to a former proceeding during a later one.” Matter of Akers’ Estate, 1975 OK CIV APP 29, 541 P.2d 284, The husband implies it is not a collateral attack because it is unclear whether the property was removed from the marital estate and was intentionally omitted from the divorce decree.

            The trial court found that the initial deed transferring the house from the husband to the husband and wife as joint tenants was the only operable deed due to fraud and lack of delivery of the other deeds. The clear weight of the evidence supports the trial court’s finding that the deeds were prepared for fraudulent purposes. Attempting to defraud creditors does not overcome the presumption of donative intent between the parties to the instrument. Metcalf v. Metcalf, 2020 OK 20, 465 P.3d 1187, The trial court’s order determining that the deeds were void because they were prepared to defraud creditors is, the panel found, contrary to law. The fraudulent deeds do not prevent the transfer from occurring between the husband and the wife.

            Regardless of whether the husband prepared the deeds for testamentary purposes, which is not supported by the evidence, or to avoid creditors, the property still transferred to the wife as a gift. A conveyance for estate planning purposes may serve as a gift from one spouse to the other. Bartlett v. Bartlett, 2006 OK CIV APP 112, 144 P.3d 173. And, therefore, the husband’s preparation and execution of the deeds for fraudulent purposes does not preclude the transfer of the property to the wife.

            As to the husband’s argument concerning lack of deliver, the panel noted that “[t]he real test of delivery is this: Did the grantor by his acts or words, or both, intend to divest himself of title? If so, the deed is delivered.” Gifts of real property require donative intent. Larman v. Larman, 1999 OK 83, 991 P.2d 536, “Absent donative intent, the original ownership regime of the property remains intact.” King v. King, 2009 OK CIV APP 49, 212 P.3d 1232.  Importantly, “the acts of the grantor relevant to his intention in the matter are not limited solely to what took place on the day of the execution of the instruments.” Following the execution of the 2011 deed placing the house in the wife’s name, she exclusively paid the mortgage and taxes on the house. The circumstances and evidence suggest that the husband intended to divest himself of title to the house.

            The panel found that the clear weight of the evidence indicated that the wife owned the house following the 2004 deed. However, even if she did not have exclusive title in 2004, she did by 2011 when the husband delivered the final quit claim deed transferring his interest to her. The husband intended to convey the house to the wife either for fraudulent reasons or estate planning purposes, but either way, he had donative intent and the property passed title from joint tenancy to Wife’s individual ownership.

            The case was remanded to enter judgment for the wife in the partition action.

Pete D. Louden

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