Estate of Dimond

2008 SD 131, 759 N.W.2d 534, 2008 S.D. LEXIS 171, 2008 WL 5413745

Opinion

KONENKAMP, Justice.

[¶ 1.] Although never decided in South Dakota, many jurisdictions hold that, as a general rule, an unexplained transfer of money or property from a parent to a child creates a rebuttable presumption that the transfer was intended as a gift. In this case, nine months after a mother gave her son $25,000, he died. Declaring that the money was a loan, she sought reimbursement from her son’s estate as an unsecured creditor. In a hearing to resolve the mother’s claim, the circuit court applied the presumption of a gift and ruled that it could be rebutted only by clear and convincing evidence. We adopt the presumption, but conclude that the court erred in setting too high a standard for rebuttal. We reverse and remand.

I.

[¶ 2.] Scott Dimond perished in an auto accident on March 6, 2006. He left three children and assets worth $129,753.42 to cover $245,000.64 in unsecured debts. His mother, Twila Edwards, and the children’s mother, Julie Dimond, petitioned the circuit court for settlement of his estate. Under the proposed settlement, Twila and Sandhill Oil Company, among other creditors, would receive a percentage of their claims. Twila claimed to have loaned her son $25,000 for “fat cattle” and listed herself as an unsecured creditor. With accrued interest at 8%, her claim totaled $27,000.

[¶ 3.] Sandhill objected to the proposed settlement. It asked that Twila’s claim be disallowed for her failure to provide substantiation for the debt. At the hearing, Twila, her ex-husband, Mark, and Scott Dimond’s daughter, Ashley, testified in support of Twila’s claim. In denying the claim, the court ruled that Twila failed to rebut the presumption of a gift by clear and convincing evidence. Twila appeals asserting that the court erred when it (1) held that there was a rebuttable presumption that a gift was intended, (2) found that the transaction between Dimond and Twila was unexplained, and (3) failed to rule on her promissory estoppel claim. 1

II.

[¶ 4.] Twila argues that the circuit court erred when it held that the money she gave her son was presumptively a gift. The circuit court espoused the view, widely held in other jurisdictions, that in these circumstances a gift is presumed. Although we have never addressed the question, a considerable number of courts hold that an unexplained transfer of property from a parent to a child raises a rebuttable presumption, or inference, that a gift was intended. 2 See Charles C. Marvel, Unex plained, Gratuitous Transfer of Property from One Relative to Another as Raising Presumption of Gift, 94 ALR3d 608 (1979) (updated 2008). Like many presumptions, this one exists to “correct the imbalance resulting from one party’s superior access to the proof’ and to overcome “the difficulties inherent in proving that the more probable event in fact occurred.” Edward W. Cleary, McCormick on Evidence § 343, 806-807 (2ded 1972).

[¶ 5.] We adopt the majority view that transfers of property or money from parent to child are presumptively gifts. Consequently, as the party seeking repayment of a loan against the estate, Twila had the burden of going forward with evidence sufficient to overcome the presumption, as well as the ultimate burden of proving the validity of the loan. See Matter of Howard, 315 S.C. 434 S.E.2d 254, 258 n. 7 (1993) (citing In re Estate of Krueger, 235 Neb. 518, 455 N.W.2d 809 (1990)). Evidence offered at the hearing showed that Twila voluntarily gave her son $25,000 by personal check without notation on the check or other documentation. The check was processed at Twila’s bank on June 30, 2005. Stamped on the back of the check was the following: “PAY TO THE ORDER OF WELLS FARGO BANK, NA WHITE RIVER, SD FOR DEPOSIT ONLY SCOTT DIMOND DBA DIMOND OIL....”

III.

[¶ 6.] In its ruling, the circuit court, relying on appellate decisions from Illinois and Washington, declared that the “presumption [of a gift] can only be overcome by clear and convincing evidence.” See In re Marriage of Wanstreet, 364 Ill. App.3d 729, 301 Ill.Dec. 706, 847 N.E.2d 716, 721 (2006); In re Estate of Miller, 134 Wash.App. 885, 143 P.3d 315 (2006). Under this standard, courts require proof that is certain, definite, reliable, and convincing, leaving no doubt on the intention of the parties. Estate of Miller, 143 P.3d at 320 (citation omitted); Daly v. Lanucha, 14 N.J.Super. 225, 81 A.2d 826, 828 (1951) (citations omitted). While we have said that “when a claim of a gift is not asserted until after the death of the alleged donor, the evidence must be clear and convincing of every element requisite to constitute a gift,” such rule will not apply to the presumption here. See In re Estate of Fiksdal, 388 N.W.2d 133, 135 (S.D.1986) (emphasis added) (citation omitted). Twila seeks not to prove a gift, but to overcome the presumption of one.

[¶ 7.] South Dakota’s rule on presumptions in civil cases provides:

In all civil actions and proceedings, unless otherwise provided for by statute or by chapters 19-9 to 19-18, inclusive, 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. When substantial, credible evidence has been introduced to rebut the presumption, it shall disappear from the action or proceeding, and the jury shall not be instructed thereon.

SDCL 19-11-1 (Rule 301). A subject of strong criticism, the “substantial, credible evidence” language in the last sentence was appended by South Dakota to what was essentially the federal version of Rule 301. 3 According to Professor Larson, this undefined phrase “injects added uncertainty into the interpretation of the rule.” John W. Larson, South Dakota Evidence § 301.1 (1991).

[¶ 8.] We demurred on venturing a definition of “substantial, credible evidence” in Bell v. East River Electric Power Cooperative, Inc., 535 N.W.2d 750, 755 (S.D.1995). We did, however, accept Professor Larson’s view that such language “‘was intended to give a presumption greater strength by requiring much more to defeat it than a mere “tapping on the window.” ’ ” Id. (quoting John W. Larson, South Dakota Evidence § 301.1 (1991)); see also Hinds v. John Hancock Mut. Life Ins. Co., 155 Me. 349, 155 A.2d 721, 730 (1959) (quoting Hildebrand v. Chicago, B. & Q.R.R., 45 Wyo. 175, 17 P.2d 651 (1933)). Indeed, the words “substantial, credible evidence” in SDCL 19-11-1 (Rule 301) were ostensibly added to meet the criticism of the federal rule that a scintilla of evidence — enough merely to burst a bubble — is all that is required to overcome a presumption. 4 From that perspective, the added language makes sense. 5

[¶ 9.] Still, going forward with “substantial, credible evidence” should not ordinarily be equated with meeting any particular burden of proof. 6 Otherwise, the burden of producing evidence shifts to become the burden of persuasion, contradicting the explicit provisions of the rule. 7 A presumption “does not shift ... the burden of proof in the sense of the risk of nonpersuasion[.]” See SDCL 19-11-1 (Rule 301). Reading this statute as a whole, therefore, we deduce that the substantial, credible evidence requirement means that a presumption may be rebutted or met with such evidence as a trier of fact would find sufficient to base a decision on the issue, if no contrary evidence was submitted. 8 But mere assertions, implausible contentions, and frivolous avowals will not avail to defeat a presumption. What may suffice as substantial, credible evidence will, of course, vary depending on the nature of the presumption. A presumption implementing vital public policy, like the presumption of legitimacy, for instance, would require weighty evidence to surmount it. SDCL 25-4-48; SDCL 25-8-57. Conversely, a presumption established primarily as á procedural device may require some lesser quantum of substantial, credible evidence for rebuttal.

[¶ 10.] Here, in the face of the presumption of a gift, Twila bore the burden of going forward with substantial, credible evidence — that is, evidence that if uncon-tradicted would be sufficient to sustain a finding of the nonexistence of the presumed fact. If rebutted, the presumption would vanish and the case would proceed without regard to the presumption. Twila was not required to go forward with clear and convincing evidence, as the trial court erroneously held.

IV.

[¶ 11.] Although it is not entirely clear from our examination of the court’s findings, in addition to concluding that Twila failed to overcome the presumption of a gift by clear and convincing evidence, it appears the circuit court may also have applied the clear and convincing burden of proof to the evidence offered on the ultimate issue whether Twila loaned the money to her son. If the court indeed applied this standard, it was in error. We have held that a service contract hinging on parol evidence, sought to be enforced after the death of the other contracting party, must be proved by clear and convincing evidence. In re Malone’s Estate, 249 N.W.2d 757 (S.D.1977) (citing Mahan v. Mahan, 80 S.D. 211, 121 N.W.2d 367 (S.D.1963)) (additional citation omitted). Malone’s Estate, and its predecessor cases, dealt particularly with claims for payment after death for services rendered while the decedents were alive. In those cases, the claimant must prove entitlement to payment by clear and convincing evidence. The clear and convincing standard has also been imposed by other jurisdictions when a claimant requests reimbursement for services rendered. See In re Shirk’s Estate, 194 Kan. 424, 399 P.2d 850, 854-55 (1965); Keller v. Keller, 257 Md. 522, 263 A.2d 578, 580-81 (1970); Richards v. Pac. Nat’l Bank of Washington, 10 WashApp. 542, 519 P.2d 272, 274-75 (1974); see also Daly v. Blinstrubas, 2002 WL 31898259 (Conn.Super.Ct.2002) (unpublished). This high standard is imposed, as “claims of this nature must be closely scrutinized, being objects of suspicion, and must be established by greater quantum of proof than in ordinary actions.” Mahan, 80 S.D. at 215, 121 N.W.2d at 369.

[¶ 12.] Here, on the other hand, Twila was not seeking reimbursement for services she rendered. Rather, she contended that she loaned her son money. South Dakota has not directly addressed the question of the burden of proof in such cases. In other jurisdictions, courts have imposed the preponderance of the evidence burden for these claims. In re Freundlich’s Estate, 116 N.Y.S.2d 757, 759 (N.Y.Sur.Ct.1952); In re Matter of Estate of Hill, 492 N.W.2d 288, 293 (N.D.1992); Lappin v. Lucurell, 13 Wash.App. 277, 534 P.2d 1038, 1045 (1975). The preponderance burden is used despite the fact that the loan sought to be enforced is based on an oral agreement. See Estate of Hill, 492 N.W.2d at 293. Because a claim seeking reimbursement for services is more problematic than a claim for enforcement of a loan, the clear and convincing evidence standard should not be imposed in establishing the validity of a claimed loan. Twila should only be required to prove her claim by a preponderance of the evidence.

[¶ 13.] Sandhill Oil argues that even if the court erred in applying the gift presumption, the court still ruled that the claim should be denied for lack of evidence to establish its validity. In its findings of fact and conclusions of law, the circuit court noted that “[t]here is no credible evidence that [Dimond] made any agreement to repay moneys he received from [Twila], and there [is] no enforceable contract for the repayment of those moneys or interest.” Evidence on whether the check was intended as a loan was contradictory. On the one hand, Twila testified that she intended the money to be a loan and that her son understood that. One witness recalled her son speaking of a loan from his mother, but no date could be nailed down. On the other hand, Twila had also given her daughter $15,000, but the word “loan” was noted on the check. No such language was on her son’s check.

[¶ 14.] Certainly the trial court could reach the same conclusion on remand, but we think it should examine the evidence under the proper standards. We will not speculate on whether under the correct standards the court might reach a different conclusion.

[¶ 15.] Reversed and remanded.

[¶ 16.] GILBERTSON, Chief Justice, and SABERS, ZINTER, and MEIERHENRY, Justices, concur.

1 . The circuit court did not rule on Twila's promissory estoppel claim. She did not object to the court’s failure to rule or submit proposed findings and conclusions on this issue. Therefore, it is waived. State v. Sickler, 334 N.W.2d 677, 679 (S.D. 1983) (quoting Am. Fed. Sav. & Loan Ass’n v. Kass, 320 N.W.2d 800, 803 (S.D.1982)).

2 . Ware v. Ware, 161 P.3d 1188, 1192-93 (Alaska 2007); First Nat'l Bank of Fort Collins v. Honstein, 144 Colo. 176, 355 P.2d 535, 536 (1960); Webb v. Blake, 31 Ga.App. 101, 119 S.E. 447, 448 (1923); Almeida v. Almeida, 4 Haw.App. 513, 669 P.2d 174, 178-79 (1983); Nordlund v. Nordlund, 116 Ill.App.3d 223, 72 Ill.Dec. 86, 452 N.E.2d 18, 21 (1983); Barth v. Severson, 191 Iowa 770, 183 N.W. 617, 623-24 (Iowa 1921); Stiff’s Ex’r v. Stiff, 217 Ky. 716, 290 S.W. 718, 719 (1927); Stahn v. Stahn, 192 Minn. 278, 256 N.W. 137, 137-38 (1934); Sunflower Farms, Inc. v. McLean, 238 Miss. 168, 117 So.2d 808, 813 (1960); Fischer v. Wilhelm, 140 Neb. 448, 300 N.W. 350, 351 (1941); Bankers’ Trust Co. v. Bank of Rockville Ctr. Trust Co., 114 N.J. Eq. 391, 168 A. 733, 737 (1933); Durward v. Nelson, 481 N.W.2d 586, 588 (N.D.1992); Brightbill v. Boeshore, 385 Pa. 69, 122 A.2d 38, 42 (1956); Romano v. Romano, 99 R.I. 33, 205 A.2d 583, 586 (1964); Hayne Fed. Credit Union v. Bailey, 327 S.C. 242, 489 S.E.2d 472, 475-76 (1997); In re Estate of LaValle, 218 S.W.3d 834, 836 (Tex.Ct.App.2007); In re Estate of Miller, 134 Wash.App. 885, 143 P.3d 315, 320 (2006); In re Estate of Rohde, 8 Wis.2d 50, 98 N.W.2d 440, 441 (1959); Kelsey v. Anderson, 421 P.2d 163, 164 (Wyo.1966); see also In re Hall, 5 B.R. 120, 122 (Bankr.M.D.Tenn.1980).

3 . Known as the vanishing or “bursting bubble” rule, it was adopted in Federal Rule of Evidence 301, which provides:

In all civil actions and proceedings not otherwise provided for by Act of Congress 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 . One of the major opponents of the "bursting bubble” theory of presumptions, Professor Morgan, noted in a law review article that “it is a little short of ridiculous to allow so valuable a presumption to be destroyed by the introduction of evidence without actual persuasive effect.” E. Morgan, Instructing the Jury Upon Presumptions and Burden of Proof, 47 HarvLRev 59, 82 (1933), as cited in 9 Wigmore, Evidence § 2493c, at 315 n. 3 (Chadbourn rev 1981).

5 . This language may also have been intended to salvage, at least in part, the law before the adoption of SDCL 19-11-1 (Rule 301), as recited in King v. Johnson Bros. Construction Co.,

Courts have differed in stating the quality and quantity of evidence required to remove a legal presumption. Frequently they say the evidence must be substantial. Sometimes it is termed as 'credible’, or 'positive', or 'satisfactory' evidence. See Annot. 5 A.L.R.3d, § 6, pp. 55, 56. South Dakota in the Peters [v. Lohr, 24 S.D. 605, 124 N.W. 853, 855 (1910)] case said prima facie evidence is necessary, but the Lunde [v. Dwyer, 74 S.D. 559, 56 N.W.2d 772 (1953) ] case makes it evident that there must be enough evidence to serve as 'the basis for a logical inference contrary to the presumption.

83 S.D. 69, 77, 155 N.W.2d 183, 187 (1967).

6 . Some South Dakota statutes, however, specifically require proof by clear and convincing evidence to. overcome a presumption. See, e.g., SDCL 12-4-36 .(presumption certain electors not qualified); SDCL 60-4-12 (presumption of good faith disclosure of employment information).

7 . Not to be confused with prima facie evidence, a presumption disappears once it is rebutted, whereas prima facie evidence will not disappear when it is contradicted, but remains to be given such weight as the trier of fact determines.

8 . Florida, apparently the only other state to include the term "credible” in its presumption statute, uses a similar standard. Berwick v. Prudential Prop. & Cas. Ins. Co., 436 So.2d 239, 240 (Fla.Ct.App.1983); see also Hlad v. State, 565 So.2d 762, 776-77 (Fla.Ct.App. 1990) (Cowart, J., dissenting). Florida's statute requires the "the trier of fact to assume the existence of the presumed fact, unless credible evidence sufficient to sustain a finding of the nonexistence of the presumed fact is introduced!)]” FSA 90.302(1).