Lewis v. Lewis

739 P.2d 974, 106 N.M. 105
CourtNew Mexico Court of Appeals
DecidedMay 21, 1987
Docket8466
StatusPublished
Cited by21 cases

This text of 739 P.2d 974 (Lewis v. Lewis) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lewis v. Lewis, 739 P.2d 974, 106 N.M. 105 (N.M. Ct. App. 1987).

Opinion

OPINION

SUSAN M. CONWAY, District Judge.

The parties in this case were divorced in a bifurcated decree May 18, 1983, after 38 years of marriage. Property division, debt division and an alimony award were made by a judgment entered October 30, 1984. An amended judgment was entered March 18, 1985. Husband appealed and wife cross-appealed.

Husband contends on appeal that the trial court erred in its: 1) failure to consider the impact of income taxes in the awarding of husband’s pension and profit sharing plans; 2) failure to consider the impact of income taxes and overhead in valuing husband’s accounts receivable; 3) valuation of goodwill in husband’s medical practice (a corporation wholly owned by husband); 4) valuation of the stock of the medical corporation; 5) awarding to wife a vehicle which was part of the medical corporation’s assets while awarding all the stock to husband; 6) awarding wife post-divorce interim support; 7) failure to change the value of the “Jordan River Note” for a post-trial but prejudgment payoff which was higher than the stipulated value of the note; 8) unequal award of household goods; 9) abuse of discretion in awarding wife attorneys’ fees and costs.

Wife challenges the trial court’s: 1) award of all post-divorce income and appreciation of the pension and profit-sharing plans to husband; 2) characterization of the residence as community property; 3) termination of interim support; 4) denial of future alimony; and 5) valuation of husband’s accounts receivable. Wife also requests attorneys’ fees on appeal.

FACTS

The parties were married in 1945. Husband is a surgeon with his own medical practice. Wife is not employed. There are no minor children. The property of the parties consists of four pension and profit sharing plans maintained by husband’s medical corporation for husband’s benefit, with a stipulated value on May 13, 1983 of $395,794.29; a residence with a stipulated value of $212,500, owned free and clear by the parties; husband’s medical corporation; a $79,000 money market account which was divided during the parties’ separation; miscellaneous investment assets, vehicles, household goods, furniture, art objects, jewelry and the like. The parties had no major debts other than attorneys’ fees. The net community estate, as found by the trial court, was in excess of $800,000.

DISCUSSION

I. Residence

Wife appeals the decision of the trial court that the parties’ residence was community property at the time of divorce. The trial court found that husband had deeded his community interest in the parties’ residence to wife in 1976, because of fear of possible future malpractice judgments against him. The trial court further found that the transfer was not in defraud of creditors and did not constitute a fraudulent conveyance. The trial court also found that husband lacked donative intent and the deed was insufficient to transfer his community interest in the residence. Wife challenges this finding. After reviewing the record, we find substantial evidence to support the trial court’s finding of no donative intent. When supported by substantial evidence, the trial court’s findings will not be overturned on appeal. Boone v. Boone, 90 N.M. 466, 565 P.2d 337 (1977).

It is undisputed that the residence was initially community property. The issue before the court was whether the community property was transmuted into separate property. The standard of proof is clear and convincing evidence. Nichols v. Nichols, 98 N.M. 322, 648 P.2d 780 (1982); Estate of Fletcher v. Jackson, 94 N.M. 572, 613 P.2d 714 (Ct.App.1980). A mere deed does not constitute complete transfer; there must also be delivery. Martinez v. Archuleta, 64 N.M. 196, 326 P.2d 1082 (1958). Moreover, the “grantor’s present intent must be to pass his complete title to the grantee and divest himself of all title;, otherwise the purported deed is not valid or effective.” Den-Gar Enterprises v. Romero, 94 N.M. 425, 428, 611 P.2d 1119, 1122 (Ct.App.1980), citing Williams v. Pacific Royalty Co., 247 F.2d 672 (10th Cir.1957). Whether the requisite intent was present was a question of fact. The court’s determination that there was no intent to give the property to wife was supported by substantial evidence.

Wife argues that husband’s purposes in making the deed were to commit tax fraud and to defraud creditors, and that the court should, as a matter of equity, refuse to relieve husband of the consequences of his improper actions. The trial court found that the purported transfer was not fraudulent. There were no creditors to defraud and husband’s purpose to reduce future taxes on his estate is legitimate tax planning. Cf. Gregory v. Helvering, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596 (1935). We hold that the trial court’s findings and conclusions that there was no fraud and that the community residence was not converted into wife’s separate property were supported by substantial evidence. Such findings and conclusions will not be disturbed on appeal.

II. Changes in Value of the Parties’ Property During Litigation

Several of the issues involved in this appeal result from the fact that the dates of divorce, trial, decision and judgment are each many months apart. On May 18, 1983, the trial court entered a partial decree of divorce dissolving the parties’ marriage and reserving jurisdiction to rule on all remaining issues (property division, alimony and attorneys’ fees). The trial was held December 27-29, 1983, and final argument on February 1, 1984. The trial court filed its findings and conclusions on June 29, 1984, and entered judgment on October 30, 1984. Hearings on post-judgment motions were heard November 20, 1984, and a hearing on wife’s attorneys’ fees was held January 15 and 21, 1985. On March 18, 1985, the trial court entered supplemental findings and conclusions and its amended judgment.

A. Changes in Pension and Profit Sharing Plans

The trial court, as part of the equalization of the community property disposition, awarded $284,931.24 of the four pension and profit sharing plans (Plans) to Husband and $100,863.05 to Wife. 1 In its original judgment, the trial court correctly awarded one-half of all post-divorce accumulations to each party. It found that “[t]he community interest of the parties in [the Plans] * * * became a tenancy in common interest with the entry of the Partial Decree.” See Jones v. Tate, 68 N.M. 258, 360 P.2d 920 (1961), and In re Miller’s Estate, 44 N.M. 214, 100 P.2d 908 (1940). See also Hickson v. Herrmann, 77 N.M. 683, 427 P.2d 36 (1967), and NMSA 1978, § 40-4-20 (Repl.Pamp.1986).

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Bluebook (online)
739 P.2d 974, 106 N.M. 105, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lewis-v-lewis-nmctapp-1987.