22.610 Resulting Trust

22.610 Resulting Trust The plaintiff/defendant has claimed and is claiming an entitlement to certain property, not as an award of alimony, but rather because of an alleged resulting trust set up by the parties. The defendant/plaintiff has denied and is denying that any such resulting trust in the property was ever established and that defendant/plaintiff holds title to the property and owns the property by right. This claim presents an (another) issue for you to determine, and I will now instruct you on the law pertaining to resulting trusts. As I have instructed you, the plaintiff/defendant (both parties) is (are) seeking an award of alimony from the other party. Alimony may or may not be awarded based upon the evidence presented as to entitlement, need, and ability to pay; it may be denied for adultery/desertion/misconduct. In determining whether a resulting trust as to certain property was set up by these parties, you are not to concern yourselves with the elements of entitlement to alimony, financial need, or the ability to pay. (Nor should you concern yourselves with any evidence as to adultery/desertion/misconduct that may have caused the separation of the parties.) Rather, you are to consider the following: When a party purchases property (in whole or in part) to be placed in a spouse's name, and there is a delivery and acceptance of the title to the property, then it is presumed under the law to be a gift. That presumption may be rebutted if it is shown that a resulting trust was established. In order to show that a resulting trust was established, the party claiming that the trust was established must prove by clear and convincing evidence that the property was purchased with the party's own funds and for the party's own benefit, but the title to such property (in whole or in part) was placed in the spouse as a matter of convenience or as an agreement for some other purpose and that the spouse was holding title to the property merely as trustee for the benefit of the first party. The presumption of a gift may be rebutted by evidence showing that the party who made the purchase thereafter exercised ownership over the property in such a manner as was inconsistent with ownership by the spouse. In determining this issue, you may consider evidence of any acts by the spouse holding title whereby that spouse appeared to recognize that actual ownership was in the other spouse. If you find that the plaintiff's/defendant's own funds were used to purchase (specify property in dispute) and that the plaintiff/defendant put the title to all or part of it in the name of the spouse, and if you further find that, at the time plaintiff/defendant did so, the parties recognized and agreed that the spouse holding the title was doing so as the trustee for the spouse who purchased the property, then you should find that a resulting trust was created and you should award the title to the property back to the defendant/plaintiff. If you find that there was not such recognition and agreement between the parties, then the plaintiff's/defendant's placement of the title in the name of the spouse would be considered a gift of (a ___________ interest in) the property, and you should not find a resulting trust but should leave the title as it now is. O.C.G.A. §53-12-1 et seq.; 53-12-91 Hargrett v. Hargrett, 242 Ga. 725, 727 (1978); overruled on other grounds. (If alimony or child support is also in issue, include the following.) After you have decided this issue and which party will have the actual ownership of the _______ property, then the property should be considered by you as being in that party's estate upon your consideration of the issue(s) of alimony and/or child support. You should decide this issue on the alleged resulting trust before considering the issue(s) of alimony and/or child support. (See 02.040 Clear and Convincing Evidence. Clarke v. Cotton, 263 Ga. 861 (1994).)