directing the district court on remand to presume that the payoff of the outstanding mortgage on the parties’ jointly-titled home by the wife’s mother was a gift to the marriage, and thus marital property, absent clear and convincing evidence to the contrary
How later courts described this case
- directing the district court on remand to presume that the payoff of the outstanding mortgage on the parties’ jointly-titled home by the wife’s mother was a gift to the marriage, and thus marital property, absent clear and convincing evidence to the contrary
- holding that the parties must present relevant evidence to the court and their failure to do so does not provide grounds for reversal
- recognizing that property placed in joint ownership during the marriage is presumed to be marital property
- recognizing that a valuation will be upheld “unless clearly erroneous”
Written by the judges who cited it.
The opinion
Judge TAUBMAN
specially concurs.
1387 I agree with the majority's analysis and conclusion, but I write separately to suggest that the marital presumption should be that a third-party donor intended a gift to the marriage, and that such a gift is presumed marital absent a preponderance of evidence to the contrary.
138 As the majority notes, in In re Marriage of Balanson, 25 P.3d 28, 37 (Colo.2001), the supreme court held that when a spouse places separate property in joint ownership during the marriage, a presumption that the donor spouse intended a gift to the marriage arises, and such gifted property is presumed marital absent clear and convincing evidence to the contrary. In reaching this conclusion, the Balanson court relied on In re Marriage of Bartolo, 971 P.2d 699, 700 (Colo.App.1998) in which a division of this court held that the trial court properly concluded that the marital presumption established in section 14-10-118(8), C.R.S.2012, had been overcome by clear and convincing evidence. That statutory presumption states that "all property acquired by either spouse subsequent to the marriage and prior to a decree of legal separation is presumed to be marital property, regardless of whether title is held individually or by the spouses in some form of co[-Jownership such as joint tenancy." § 14-10-1188). However, neither the Balanson nor the Bartolo court explained the derivation of the clear and convincing standard applied to overcome the marital presumption.
139 The Balanson court also discussed In re Marriage of Stumpf, 932 P.2d 845, 848 (Colo.App.1996), and In re Marriage of Moncrief, 36 Colo.App. 140 , 141, 535 P.2d 1137, 1138 (1975), regarding the marital presumption. However, neither the Stumpf nor the Moncrief division discussed the clear and convincing standard to overcome the marital presumption.
{40 The Moncrief division cited In re Marriage of Altman, 35 Colo.App. 183, 185 , 530 P.2d 1012, 1013 (1974), for the proposition that under the Uniform Dissolution of Marriage Act, when one spouse causes title to be placed jointly with the other spouse, a gift is presumed and the burden to show otherwise is upon the donor. In Altman, the division relied on Botkin v. Pyle, 91 Colo. 221, 232 , 14 P.2d 187, 191 (1932), abrogated by Page v. Clark, 197 Colo. 306, 317-20 , 592 P.2d 792, 799-801 (1979), a case involving, among other things, the criteria for establishing a resulting trust, which is a trust that the court presumes to arise out of the transactions of parties, "as if one man pays the purchase[ Imoney for an estate, and the deed is taken in the name of another." Id. (quoting 1 Perry on Trusts and Trustees 17 (Tth ed.)).
{41 The Botkin court held that "[where ... the husband acquires and pays for real property, and causes his wife's name to be inserted in the deed as one of the grantees therein, there is a presumption that he intended it as a gift or advancement, and the burden of showing otherwise is upon him who asserts it." Id. at 234, 14 P.2d at 191 . The supreme court noted that to establish a resulting trust, the evidence "must be clear, strong, unequivocal, [and] unmistakable, and must establish the fact of the payment by the alleged beneficiary beyond a doubt." Id. at 233 , 14 P.2d at 191 (quoting 8 Pomeroy's Equity Jurisprudence 2857 (4th ed. 1918)); *1042 see Cortez Land & Sec. Co. v. Stabler, 84 Colo. 64, 65 , 268 P. 526, 526 (1928) ("Where one purchases and pays for real property, causing title to be conveyed to another without consideration, a trust results in favor of him who paid for the property. Where, however, the grantee is his wife, there is a presumption that he intended it as a gift or an advancement; and in that case, one seeking to establish a resulting trust must show, by strong and convincing evidence, that he did not intend it as a gift or an advancement.").
142 Although Botkin and Cortes Land & Securities did not expressly apply a clear and convincing burden of proof, they applied the equivalent. In Borer v. Lewis, 91 P.3d 375, 379 (Colo.2004), the supreme court held that, when considering a motion to set aside a default judgment, the standard of clear, strong, and satisfactory proof was equivalent to a clear and convincing burden of proof standard. Similarly in Page, 197 Colo. at 317 n. 3, 592 P.2d at 799 n. 3, the supreme court noted that the burden of proof in actions in equity had been cited as "clear, strong, satisfactory, and convineing" (citing and abrogating Tourtelotte v. Brown, 4 Colo.App. 377 , 36 P. 73 (1894)), and similar formulations, all of which were tantamount to a clear and convincing standard.
483 Thus, the marital presumption as it had been applied in Balanson and earlier cases implicitly relied on the above-cited resulting and constructive trust cases which set forth a standard of proof equivalent to clear and convincing evidence necessary to overcome the marital presumption.
144 After Balanson was decided, in 2002 the legislature amended section 14-10-1183 by adding subsection (7) which provided that gifts from one spouse to another, except gifts of nonbusiness tangible personal property, whether in trust or not, shall be presumed to be marital property and not separate property. The statute provided expressly for the first time that this presumption "may be rebutted by clear and convincing evidence." § 14-10-118(7)(a), C.R.S8.2012.
[ 45 Because this statutory amendment applies only to certain gifts from one spouse to another, it does not apply to the circumstances presented here. Indeed, section 14-10-113(7)(b), C.R.S.2012, further provides that for purposes of section 14-10-1183(1) to (4) only,
"property" and "an asset of a spouse" shall not include any interest a party may have as an heir at law of a living person or any interest under any donative third[-]party instrument which is amendable or revocable, including but not limited to third-party wills, revocable trusts, life insurance, and retirement benefit instruments, nor shall any such interests be considered as an economic cireumstance or other factor.
Accordingly, the General Assembly did not intend that a third party's gifts to a spouse should be presumed to be marital property, subject to refutation by a clear and convincing standard of proof. In the absence of such language, I would suggest that section 13-25-127(1), C.R.S.2012, applies here, and thus, the marital presumption to be applied in this case should be subject to refutation by a preponderance of the evidence, rather than by clear and convincing evidence. See Page, 197 Colo. at 317-19 , 592 P.2d at 799-801 (applying section 18-25-127(1) preponderance of the evidence standard to imposition of constructive trust, abrogating Botkin and other cases applying clear and convincing burden of proof).