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Date: 02-22-2022
Case Style:
Case Number: 2022 OK CIV APP 7
Judge: Bay Mitchell
Court: Oklahoma Court of Civil Appeals, Division III
Plaintiff's Attorney: James Brannam
Defendant's Attorney: Keith James
Description: Idabel, Oklahoma family law attorneys represented the parties in a participation action.
1 Plaintiff/Appellee Burl Peveto (Husband) sued his former wife Defendant/Appellant Lori Peveto (Wife) seeking partition of the house they once owned in joint tenancy with rights of survivorship. While married, the ownership of the house alternated between joint tenancy and Wife as the sole owner. In the divorce, the decree of dissolution failed to specifically address the house. The issue is whether Wife owns the house in her individual capacity or whether the house is owned by Wife and Husband as joint tenants. In the partition proceeding below, the court in its final order found that the original deed from Husband to Husband and Wife as joint tenants was the only operable deed as the others were either prepared to defraud creditors and therefore void or they were never delivered. The trial court remanded the matter to the divorce court to dispose of the marital asset. We find that the court's order is contrary to the clear weight of the evidence and is not in harmony with the law.
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¶12 The trial court determined that the only operable deed was the first deed placing the house in joint tenancy, finding specifically that several of the other deeds were not delivered.3 The issue of delivery is pertinent to the effectiveness of the 2007 deed and the 2011 deed which were filed years after they were executed. The trial court found that the deeds were not delivered. This finding is contrary the clear weight of the evidence and is contrary to law.
¶13 "The rule is that where there is a dispute as to whether a deed has been delivered, the question is one of fact to be determined from the facts and circumstances peculiar to each case." Yarbrough v. Bellamy, 1946 OK 241, ¶8, 172 P.2d 801, 803. "[T]he delivery of a deed may be established by circumstantial evidence." Johnson v. Craig, 1913 OK 142, ¶10, 130 P. 581, 583. "The law does not prescribe any particular form of words or actions as necessary to consummate a delivery." Id. at ¶12. Considering the circumstances and based on Husband's pattern and practice of filing each of the preceding deeds shortly after their execution, there is no reason to assume he did not intend for the 2007 deed and 2011 deed to be delivered and immediately go into effect upon execution.
¶14 The burden is on the grantor to show by clear and convincing evidence that the deed was not actually delivered. Abrams v. Neal, 1936 OK 622, ¶17, 61 P.2d 1103, 1105. Possession of a deed by a grantee is prima facie evidence of its delivery. Id. "The rule is that, when a grantee is in possession of a deed, the presumption is that it was delivered at the date of the execution." Shaffer v. Smith, 1916 OK 441, ¶2, 156 P. 1188, 1188. The grantor has the burden to overcome the presumption of delivery. Id. at ¶15. An interested party cannot overcome the presumption of delivery with testimony alone. Johnson, 1913 OK 142, ¶11, 130 P. at 583. Here, the 2011 deed returning title to Wife's name only was in Wife's possession, stored in her filing cabinet. Husband failed to offer evidence, beyond his own testimony, to rebut the presumption of delivery.
¶15 However, "[t]he real test of delivery is this: Did the grantor by his acts or words, or both, intend to divest himself of title? If so, the deed is delivered." Id. ¶6, 130 P. at 583. Gifts of real property require donative intent. Larman v. Larman, 1999 OK 83, ¶8, 991 P.2d 536, 540. "Absent donative intent, the original ownership regime of the property remains intact." King v. King, 2009 OK CIV APP 49, ¶13, 212 P.3d 1232, 1235. Importantly, "the acts of the grantor relevant to his intention in the matter are not limited solely to what took place on the day of the execution of the instruments." Johnson, 1913 OK 142, ¶5, 130 P. at 583. Following the execution of the 2011 deed placing the house in Wife's name only, Wife exclusively paid the mortgage and taxes on the house. The circumstances and evidence suggest that Husband intended to divest himself of title to the house.4
¶16 The delay in executing the 2011 deed and filing it in 2017 has no impact on the effectiveness of the deed. The presumption of delivery is not destroyed by a long period of time between execution and recordation. McKeever v. Parker, 1950 OK 344, ¶12, 226 P.2d 425, 428. Further, after a deed intended for estate planning purposes is delivered, whether it is discussed or filed has no effect over the validity of the instrument. Johnson, 1913 OK 142, ¶5, 130 P. at 583.
https://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=490510
Outcome: Reversed.
Plaintiff's Experts:
Defendant's Experts:
Comments: