Kerley v. Kerley

Nevada Supreme Court

Kerley v. Kerley

910 P.2d 279, 112 Nev. 36, 1996 Nev. LEXIS 10

CourtNevada Supreme Court

DecidedJanuary 31, 1996

DocketNo. 23220; No. 23506

StatusPublished

Cited by1 cases

This text of 910 P.2d 279 (Kerley v. Kerley) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kerley v. Kerley, 910 P.2d 279, 112 Nev. 36, 1996 Nev. LEXIS 10 (Neb. 1996).

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Opinion

OPINION ON REHEARING

Per Curiam:

In Kerley v. Kerley, 111 Nev. 462, 893 P.2d 358 (1995), we reversed and remanded to the district court the issue of apportionment of the real property located at 1045 Verde Way. Thomas Kerley now petitions this court for rehearing.

[37]*37In our prior opinion in this matter, we held that the formula set out in Malmquist v. Malmquist, 106 Nev. 231, 792 P.2d 372 (1990), did not apply to the apportionment of the Verde Way property. Part of the reason for our holding was our reliance on the district court’s legal conclusion that the real property deeds executed between Thomas and Nancy conveying title to the Verde Way property created a presumption of community property, and that the Verde Way property was community property. The district court’s legal conclusion was erroneous, and we overlooked this error in our prior opinion. Specifically, the error of law stated in our prior opinion is included in the following quotation:

In 1982, Thomas conveyed the Verde Way property to himself and Nancy as joint tenants (1982 Deed). In the spring of 1983, Thomas and Nancy executed a quitclaim deed to the Verde Way property vesting title in Thomas’s name only (1983 Deed). . . .

. . . The district court concluded that because the 1982 Deed and the 1983 Deed were obtained and acquired during the marriage, Verde Way therefore would be presumed to be held as community property per NRS 123.220. This presumption, the district court added, could be overcome by clear and convincing evidence, but the court concluded that Thomas had failed to overcome the presumption.

Kerley v. Kerley, 111 Nev. 462, 464, 893 P.2d 358, 359 (1995).

We have consistently held that a spouse to spouse conveyance of title to real property creates a presumption of gift that can only be overcome by clear and convincing evidence. Graham v. Graham, 104 Nev. 473, 760 P.2d 772 (1988); Todkill v. Todkill, 88 Nev. 231, 495 P.2d 629 (1972); Peardon v. Peardon, 65 Nev. 717, 201 P.2d 309 (1948); Petition of Fuller, 63 Nev. 26, 159 P.2d 579 (1945). Moreover, property acquired by gift during marriage is separate property pursuant to NRS 123.130, and therefore is not community property pursuant to NRS 123.220. Therefore, the 1983 quitclaim deed vesting title in Thomas’s name only is presumed to be a gift of Nancy’s interest unless clear and convincing evidence establishes otherwise.

Accordingly, we grant rehearing, and we remand to the district court the issue concerning the Verde Way property for further proceedings consistent with this opinion.¹

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OPINION ON REHEARING

Per Curiam:

In Kerley v. Kerley, 111 Nev. 462, 893 P.2d 358 (1995), we reversed and remanded to the district court the issue of apportionment of the real property located at 1045 Verde Way. Thomas Kerley now petitions this court for rehearing.

[37]*37In our prior opinion in this matter, we held that the formula set out in Malmquist v. Malmquist, 106 Nev. 231, 792 P.2d 372 (1990), did not apply to the apportionment of the Verde Way property. Part of the reason for our holding was our reliance on the district court’s legal conclusion that the real property deeds executed between Thomas and Nancy conveying title to the Verde Way property created a presumption of community property, and that the Verde Way property was community property. The district court’s legal conclusion was erroneous, and we overlooked this error in our prior opinion. Specifically, the error of law stated in our prior opinion is included in the following quotation:

In 1982, Thomas conveyed the Verde Way property to himself and Nancy as joint tenants (1982 Deed). In the spring of 1983, Thomas and Nancy executed a quitclaim deed to the Verde Way property vesting title in Thomas’s name only (1983 Deed). . . .

. . . The district court concluded that because the 1982 Deed and the 1983 Deed were obtained and acquired during the marriage, Verde Way therefore would be presumed to be held as community property per NRS 123.220. This presumption, the district court added, could be overcome by clear and convincing evidence, but the court concluded that Thomas had failed to overcome the presumption.

Kerley v. Kerley, 111 Nev. 462, 464, 893 P.2d 358, 359 (1995).

We have consistently held that a spouse to spouse conveyance of title to real property creates a presumption of gift that can only be overcome by clear and convincing evidence. Graham v. Graham, 104 Nev. 473, 760 P.2d 772 (1988); Todkill v. Todkill, 88 Nev. 231, 495 P.2d 629 (1972); Peardon v. Peardon, 65 Nev. 717, 201 P.2d 309 (1948); Petition of Fuller, 63 Nev. 26, 159 P.2d 579 (1945). Moreover, property acquired by gift during marriage is separate property pursuant to NRS 123.130, and therefore is not community property pursuant to NRS 123.220. Therefore, the 1983 quitclaim deed vesting title in Thomas’s name only is presumed to be a gift of Nancy’s interest unless clear and convincing evidence establishes otherwise.

Accordingly, we grant rehearing, and we remand to the district court the issue concerning the Verde Way property for further proceedings consistent with this opinion.¹

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Bluebook (online)

910 P.2d 279, 112 Nev. 36, 1996 Nev. LEXIS 10, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kerley-v-kerley-nev-1996.

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