Gregory Brock Husband brought this divorce action against Elizabeth Brock Wife. After a bench trial, the trial court entered a final judgment and divorce decree awarding them joint legal custody of their three minor children with Husband to be the primary physical custodian. Wife filed an application for discretionary appeal challenging on various grounds the trial court’s property division and custody award. We granted her application pursuant to this Court’s pilot project. See Wright v. Wright , 277 Ga. 133 587 SE2d 600 2003. 1. Throughout the marriage, the parties lived in a home purchased by Husband prior to the marriage. In April 2000, Husband executed and recorded a warranty deed transferring ownership in the home to Wife in consideration for her “love and affection.” At the final hearing, Husband claimed and the trial court agreed that Wife held the property in an implied resulting trust for Husband because he conveyed the property to Wife for the purpose of protecting it from potential future creditors. We disagree.
An implied trust is “a trust in which the settlor’s intention to create the trust is implied from the circumstances, and which meets the requirements of Code Sections 53-12-90 through 53-12-93.” OCGA § 53-12-2 3. An implied resulting trust may arise where: 1 an express trust is created but fails for any reason; 2 a trust is fully performed without exhausting all of the trust property; or 3 a purchase money resulting trust is established. OCGA § 53-12-91. In this case, Husband presented no evidence that an express trust was created or that a trust was fully performed without exhausting all of the trust property. Thus, to prove his claim that the conveyance of the marital home to Wife gave rise to a resulting trust, Husband must overcome the presumption under Georgia law that the conveyance was a gift. See OCGA § 53-12-92 c gift presumed if payor of consideration and transferee are husband and wife. To rebut the presumption, Husband was required to prove by clear and convincing evidence, inter alia, that a resulting trust was contemplated by both parties by way of an understanding or agreement. See Ford v. Ford , 243 Ga. 763 1 256 SE2d 446 1979 testimony that husband placed house in wife’s name to protect property from prospective creditors but intended to maintain joint interest therein insufficient to overcome presumption in absence of understanding or agreement with wife; Scales v. Scales , 235 Ga. 509 220 SE2d 267 1975 evidence husband conveyed property to wife to protect it from potential creditors insufficient to rebut presumption of gift. The record in this case is devoid of any evidence of mutual intent to create a trust and Husband offered no evidence of a mutual understanding or agreement at the time the conveyance was made. Accordingly, the trial court erred in finding that Wife held the property in trust for Husband and awarding the marital home to Husband.
