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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Rausch v. Devine (12/05/2003) sp-5759

Rausch v. Devine (12/05/2003) sp-5759

     Notice:  This opinion is subject to correction before
     publication in the Pacific Reporter.  Readers are
     requested to bring errors to the attention of the Clerk
     of the Appellate Courts, 303 K Street, Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

MARK C. RAUSCH,                         )
                              )    Supreme Court No. S-10660
                                      Appellant,            )
                              )    Superior Court No.
     v.                       )    3AN-00-4879 CI
                              )
MICHELLE DEVINE,                        )    O P I N I O N
                              )
                                      Appellee.             )
                              [No. 5759 - December 5, 2003]
________________________________)

          Appeal from the Superior Court of the State
          of Alaska, Third Judicial District,
          Anchorage, Eric T. Sanders, Judge.

          Appearances:  Allison E. Mendel and Sherry
          Clark, Mendel & Associates, Anchorage, for
          Appellant.  John R. Strachan, Law Office of
          John R. Strachan, Anchorage, and James D.
          Babb, Jr., Law Office of James D. Babb, Jr.,
          Anchorage, for Appellee.

          Before:  Fabe, Chief Justice, Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.

          CARPENETI, Justice.

I.   INTRODUCTION

          Mark Rausch appeals the trial court's decision that he

validly delivered two quitclaim deeds to Michelle Devine and the

court's refusal to impose resulting or constructive trusts on the

properties in his favor.  Because Rausch failed to rebut a

presumption of valid delivery by clear and convincing evidence,

and because resulting or constructive trusts are inappropriate in

cases of gratuitous transfers, we affirm the superior court's

decision.

II.  FACTS AND PROCEEDINGS

     A.   Facts

          Mark Rausch and Michelle Devine met in Iowa in 1988 and

began a romantic relationship in 1989.  They discussed marriage

and in early 1990 went to Belize for a marriage ceremony that the

parties agree was not legally effective, although afterwards they

did on occasion hold themselves out as married.  They lived on

Rausch's farm in Iowa from February to March 1990, and then moved

to Rausch's house in Anchorage.  Their daughter Sydney was born

in April 1991.  They lived together until 2000.  They used a

fairly traditional living arrangement in which Devine cared for

Sydney and the house, held some minor jobs, and took care of all

household paperwork and bills.  Rausch covered almost all of

their living expenses by occasionally working as a lawyer and

hunting guide, by recovering lost airplanes, by trading his

labor, and by using $140,000 in cash savings that he kept hidden

on his properties in Iowa and Alaska.

          The parties agree that on May 7, 1990 Rausch drafted

and signed an unconditional quitclaim deed in favor of Devine for

his farm in South English, Iowa, and took it to a lawyer friend

to have it acknowledged.  The parties stipulate that Rausch was

an attorney and was competent to draft the deed so as to include

any terms he wished.  They also agree that at the very least

Rausch showed Devine the Iowa deed after she became pregnant with

Sydney, and that Devine recorded the deed in May 1991 while

visiting Iowa with Sydney after the birth.  On January 13, 1993

Rausch asked different lawyer friends to draft and acknowledge

another quitclaim deed to Devine, this time for the Anchorage

property, and this deed was recorded by Rausch's friend in

February 1993.  Thereafter, Devine continued to act primarily as

a homemaker and Rausch continued to pay for the mortgage and

direct the upkeep on both properties.  He also began the

construction of a house on the Iowa property in 1997.

          At some point in early 1993, Devine moved out of

Rausch's bedroom and their intimate relationship ceased, but in

most practical respects their relationship stayed the same,

apparently because Devine hoped the relationship would improve

and Rausch wanted access to Sydney.  On a few occasions the

parties discussed the possibility that Rausch would buy back the

deeds so that Devine could buy a different house in Anchorage,

but this never materialized.  The parties separated in early 2000

when Devine filed her complaint in the case below.

     B.   Proceedings

          In February 2000 Devine filed suit in superior court in

Anchorage asking for an order that Rausch vacate the house in

Anchorage, an order distributing their property other than the

Iowa and Anchorage lands, sole legal custody of Sydney, and child

support.  In June 2000, Rausch counterclaimed to quiet title to

the Iowa and Anchorage lands, or in the alternative for the

imposition of a resulting or constructive trust on the lands,

breach of contract, and joint legal custody.  Trial was

bifurcated by Superior Court Judge Eric T. Sanders between

property and child custody/support issues,  and trial on the

property issue was held on March 12-13 and April 4, 2001.  At

trial, Devine contended that Rausch had given her both properties

and paid for their mortgages as a gift because he was generous

and because he wanted to assuage her concerns that their

unmarried status left her in a financially precarious position.

Rausch contended that he had never intended to transfer title to

the properties to Devine.  Instead, he testified that he executed

the deed to the Iowa property only intending for her to take

title if he died and that he executed the deed to the Anchorage

property only as reassurance that he would not evict her from the

house until Sydney's majority.

          Judge Sanders ruled that the recording of the deeds

created a presumption of valid delivery that was rebuttable by

clear and convincing evidence.  He noted that Rausch's continued

payments for the properties were persuasive evidence against

delivery, but nonetheless ruled that the presumption had not been

overcome because Rausch was not a credible witness, Rausch's

explanation for why he executed the quitclaim deeds did not

correspond with what Rausch as a lawyer would understand the

purpose of a quitclaim deed to be, Rausch's financial habits were

generally "unconventional," and Rausch had taken no action for

six years upon allegedly learning that Devine was the title

holder to both properties.  Judge Sanders rejected the resulting

trust argument for two reasons: first, because the Restatement

(Second) of Trusts section 4401 states that resulting trusts are

inferred when a payor furnishes a purchase price on behalf of a

third party, which had not been the case here, and second,

because comments to the Restatement section 441 also provide that

no inference of a trust arises when a transfer appears to be

intended as a gift.  Judge Sanders also rejected the constructive

trust theory, noting that a constructive trust is imposed only

where the title holder has acquired the property through unjust,

unconscionable, or unlawful means and would therefore be unjustly

enriched by keeping it.2  He found that while the gift

"undoubtedly" enriched Devine, she had performed most of the

services of a spouse during the ten years of  their relationship

and he implied that this did not constitute unjust,

unconscionable, or unlawful behavior that unfairly tended to

deprive Rausch of his property.  Finally, Judge Sanders rejected

Rausch's express contract theory but awarded Rausch the house

that he had built on the Iowa property.  Rausch appeals.

III. STANDARD OF REVIEW

          The choice of the proper standard of law for resolving

property disputes is a question of law that we review de novo.3

The application of law to the facts of the case is reviewed de

novo.4  We adopt the rule of law that is most persuasive in light

of precedent, reason, and policy.5  The factual findings of the

trial court are reviewed for clear error, a standard that is met

if, after a thorough review of the record, we come to a definite

and firm conviction that a mistake has been made.6  The trial

court's findings regarding the credibility of witnesses and

weighing of the evidence may be reversed only if clearly

erroneous.7  In reviewing the trial court's factual findings, we

view the evidence in the light most favorable to the party

prevailing in the trial court.8  We may affirm the trial court's

result on any basis supported by the record.9

IV.  DISCUSSION

          Rausch contends that both pieces of property should be

returned to him in full under three theories: (1) that both deeds

were invalid for lack of proper delivery, because he never gave

Devine the deeds or intended that the quitclaim deeds should

transfer title; (2) that a resulting trust should be imposed

because the transactions give rise to the inference that Rausch

did not intend to benefit Devine; and (3) that a constructive

trust should be imposed because Devine will be unjustly enriched

if she is allowed to retain properties for which Rausch paid.10

All of these theories depend on acceptance of Rausch's version of

the facts and rejection of Devine's.  Evaluation of the

credibility of witnesses is a matter for the trial court, and

upon review the prevailing party is entitled to have the record

viewed in the light most favorable to her.  Under these

principles, we affirm the factual and legal rulings of the trial

court.

     A.   Rausch Did Not Present Clear and Convincing Evidence
          Rebutting the Presumption that the Iowa and Alaska
          Deeds Were Validly Delivered.
          
          The heart of Rausch's case is the contention that the

recorded deeds to the Iowa and Alaska properties were invalid

because they were never properly delivered to Devine.11  We reject

that contention.

1.                       Both Iowa and Alaska law require
               delivery of a validly executed deed, and in both
               states the presumption of valid delivery that
               arises upon recording can be rebutted by the party
               disputing delivery through clear and convincing
               evidence.
               
          An action to invalidate a deed is an equitable one and

can therefore be brought in any court with equity power,12 but the

law of the situs of the property is applied to the validity of

the deed itself.13  In this case there are deeds concerning land

in Iowa and in Alaska, and the laws applicable to each are very

similar.

          In Iowa, a deed duly executed and acknowledged is self-

proving as to its execution and delivery when produced by the

grantee.14  "Every conveyance of real estate passes all the

interest of the grantor therein, unless a contrary intent can be

reasonably inferred from the terms used."15  The proper transfer

of title under a deed must include an actual or symbolic delivery

of the deed accompanied by the intention of the grantor to

transfer title without any reservation of control.16  "The intent

of the grantor is controlling in the matter of delivery and is to

be determined by the grantor's acts or words or both."17  A duly

executed and recorded deed ordinarily raises a rebuttable

presumption of delivery with present intent of passing title and

possession, although the recording of the deed does not

necessarily constitute delivery if the facts and circumstances

indicate that the grantor's intention was otherwise.18  The burden

of proving the absence of delivery is on the party alleging the

absence of delivery, and the evidence must be clear,

satisfactory, and convincing.19  When a deed absolute on its face

is delivered to the grantee with the intention that it become

effective only upon the grantor's death, the delivery is wholly

ineffective, but if the grantor delivers the deed to a third-

party agent without reserving the right to recall it, then title

passes immediately to the grantee while reserving a life estate

to the grantor.20  The grantor's continued possession and control

of the property strongly suggest the absence of delivery,

especially where the grantee does not take possession in any way.21

          These principles of Iowa law are generally consonant

with the American law of delivery of deeds,22 and Alaska case law

has implied that delivery of a deed is part of its valid

execution, relying on  Powell on Real Property.23  Although there

appears to be no Alaska case specifically holding that the

recording of a deed gives rise to a presumption of valid delivery

that is rebuttable by clear and convincing evidence, Chief

Justice Rabinowitz has noted that this is hornbook law,24 and we

have previously held that the "clear and convincing" standard is

often applicable to factual questions surrounding land actions.25

We now adopt the rule that a recorded deed gives rise to a

presumption of valid delivery that may be rebutted by the party

challenging delivery by clear and convincing evidence.

2.                       Judge Sanders applied the proper
               standards of law, and his factual findings, viewed
               in the light most favorable to the prevailing
               party, are not clearly erroneous.
               
          Rausch contends that in finding that he had not shown

by clear and convincing evidence that he had not intended to

transfer the deeds to Devine, the trial court clearly erred in

its factual findings and credibility determination.  Rausch also

contends that the trial court made errors of law by relying on

irrelevant facts and by failing to conclude expressly that Rausch

intended to make a present transfer.  We disagree.

          Rausch's strongest argument, both in case law and in

supporting documentary evidence, is that the trial court should

have inferred that Rausch did not intend to transfer title to the

properties based on his actions as the owner of the properties,

including providing the funds for the mortgage and taxes, taking

care of the upkeep, dealing with renters on the Iowa property,

and building a new house on the Iowa property.  Rausch cites

Crowder v. Crowder26 and Staats v. Staats27 for the proposition

that subsequent ownership acts are strong evidence that there was

no intent to transfer title, and Giefer v. Swenton28 for the

proposition that the presumption of delivery is not as strong

when the deed is not recorded by the grantor.  But all of these

cases are rich in factual detail supporting the lack of intent to

transfer, whereas Rausch's case, as will be discussed below, is

not.  Indeed, in Crowder the transferee testified that the

purpose of the deed was to insulate the property from a possible

tort settlement, not to transfer title as a gift.29  In Staats,

the deed was recorded years after it was drafted, the surviving

transferor testified that the deed had been drafted out of

concern for the possible failure of a bank, the trial court found

that the recording transferee's contradicting testimony was not

credible, and the transferee had never taken possession of the

property except as a tenant.30  Likewise, in Giefer, the court

found that there was a valid delivery even where the transferees

had never taken possession of the property because the drafter of

the deeds had testified that the transferor had deeded his

property to his children during his life only in order to avoid

the expense and trouble for his children of submitting the land

and his will to probate at his death.31  On the contrary, in this

case, the only testimony that Rausch did not intend a transfer

came from Rausch himself, the trial court found that Rausch's

credibility was poor, and both parties had possession of the land

consistent with their shared household and established pattern of

dividing household duties.  Although exercising the incidents of

ownership does cast doubt on whether a party has in fact intended

to transfer title in a deed, the credibility determinations and

facts in this case do not provide clear and convincing evidence

overcoming a presumption of delivery.

          According to Rausch, the trial court's conclusion that

the presumption of delivery was not rebutted was based on factual

findings, especially credibility determinations, that were

clearly erroneous.32  He argues that the trial court should have

given more weight to his testimony that he wanted Devine to take

the Iowa property only if he died before their daughter turned

eighteen, and that he deeded the Anchorage property to Devine

merely as a gesture of goodwill after their relationship soured.

But we agree with the superior court that Rausch's stated

intentions are belied by his decisions to draft unqualified

quitclaim deeds.  Rausch was a licensed attorney who had

experience in marital property law.  Drafting an unqualified Iowa

deed with an expectation that the deed would become effective

only upon Rausch's death would have been an ineffective transfer

whether he kept the deed in his own possession or transferred it

to Devine, and therefore would not have reached the result Rausch

claims he intended.33  Moreover, any conditions on the Alaska deed

are oral and unproved, so that the Alaska transfer would also

have been ineffective to reach the results Rausch claimed he

intended.34  Not only would these deeds have been legally

ineffective to reach the results that Rausch claims he intended,

but they were also facially unrelated to those results.  Devine

argues, with some justice, that Rausch's case amounts to the

proposition that ten years after the fact only Rausch's "secret,"

unstated intentions regarding the property are relevant.  Indeed,

Rausch testified that he and Devine never discussed his

intentions regarding the Anchorage property because "she knew why

I did it. . . . I wanted to ameliorate [her] concern."

          We also agree with the superior court that Rausch did

not present clear and convincing evidence to support his

testimony that he did not intend to deliver the deeds; rather,

his supporting evidence was contradictory and incomplete,

especially when viewed in the light most favorable to Devine, the

prevailing party.  The trial court noted that while Rausch

insisted repeatedly in his testimony that he would never give

away his property, nevertheless he did not call any of the lawyer

friends who authorized or recorded the deeds for him to

corroborate his assertion that the deeds were not meant to

transfer title.  Moreover, Rausch did not bolster these

assertions by explaining what steps he took, if any, to retain

control over either of the deeds.  Rather, regarding the Iowa

deed, he says only that he "showed" the Iowa deed to Devine and

that she later stole it from him, without explaining what he did

with the deed after showing it to her, where he kept it, or how

he excepted this particular piece of paper from his usual

practice of depending on Devine to supervise all the paperwork

relating to their household.  Iowa case law provides that the

grantor's intent regarding delivery is to be deduced from the

grantor's "acts or words or both,"35 probably as a safeguard

against the "secret intent" problem.  In this case Rausch's only

relevant acts and words were those of ownership in paying the

mortgage, etc., and as the trial court correctly noted, these

acts are not inconsistent with the possibility that he intended

that title to the land be transferred to Devine because she

lacked the ability to buy her own land.  Rausch's subsequent acts

of ownership do not clearly and convincingly show that Rausch

drafted, signed, and asked a friend to notarize the unconditional

Iowa quitclaim deed intending something other than a present

transfer of title to Devine, someone with whom he expected to be

living for a long time.

          There is a similar lack of supporting evidence as to

Rausch's intentions regarding the Anchorage deed.  Again, Rausch

claims that he used his Iowa quitclaim deed as a model and took

it to lawyers with whom he had practiced to have the deed

acknowledged, but did not testify that he explicitly instructed

them not to record the deed and to return it to his sole control.

He testified instead that he could not remember whether he

instructed his attorney to return the deed to himself or Devine,

and apparently never looked for the return of the deed or thought

about it again until 1994 when refinancing his mortgage.  Yet

Rausch claims to be surprised that the Anchorage deed was

recorded, and his attorney suggested that his lawyer friends must

have "mistakenly" recorded the deed on his behalf.  These facts -

that Rausch apparently placed no significance on his lack of

control of the deed, that it was recorded by his own agent, and

that he chose the form of the deed himself - all tend to raise

the inference that Rausch in fact intended the deed to do exactly

what it said it did: give title to the property to Devine.

          Regarding credibility, in the absence of any testimony

from Rausch explaining how he attempted to keep control of either

deed, the trial court was left only with the nakedly conflicting

testimony of the two parties, making the whole case turn to a

substantial extent on the credibility determination.  Credibility

determinations are the function of the trial court, not this

court.36  The trial court observed that while Rausch claims he

never authorized the recording of either deed, Rausch waited

until six years after he claims to have learned of the recording

of the deeds to attempt to rectify Devine's alleged theft of the

Iowa deed from him and his own attorney's purported mistake in

recording the Alaska deed.  The superior court also noted that

Rausch's testimony about his financial habits was not credible,

that Rausch had deliberately misled others about his assets in

the past in order to avoid what he saw as unfair child support

obligations, and that Devine had provided a plausible narrative

regarding why Rausch had given her the properties.  Devine

testified that Rausch had promised her the Anchorage house at the

time they agreed to marry and that she had repeatedly asked him

to formalize their union.  In this connection, it is important to

note that there were inferences from Rausch's own testimony to

support the trial court's finding that Devine was credible:

although typically couching the issue in terms of fear for his

death in a hunting or flying accident, Rausch also acknowledged

that he knew that Devine's unmarried status and lack of resources

made Devine feel financially and legally insecure, and that he

drafted both deeds to meet her concerns.  In addition, Rausch had

a history of extravagant gifts, including land: he had given at

least one piece of land to one of his children in the past, and

he had given Devine a Rolex at the time of their putative

marriage ceremony as well as a Mercedes earlier.  The relevance

of the credibility determinations is clear, and the credibility

determination is a matter for the superior court.

          Rausch also contends that the superior court made two

errors of law.  First, Rausch contends that the trial court's

credibility determinations were based in part on facts which were

"not related" to the issue of delivery of the deeds and therefore

were not relevant.  Because Rausch's primary evidence of his lack

of intent to deliver the deeds was his own testimony about his

intentions, the trial court had no choice but to discuss less

relevant material in explaining its assessment of Rausch's

overall credibility, which it properly did.  Yet the trial court

substantiated its opinion regarding the delivery of the deeds

entirely with facts relating directly to the delivery of the

deeds.  We hold that there was no error in the trial court's

application of the law to the facts.

          Second, Rausch contends that the trial court committed

legal error by failing to conclude expressly that Rausch intended

a present transfer.  However, under the rebuttable presumption of

delivery raised by the recording of each of the deeds, delivery

was already presumed.  It was not the court's duty to find that

the deeds had been delivered; it was instead Rausch's duty to

present clear and convincing evidence that they had not been

delivered.  There was no error of law on this point.  Upon a

review of the record viewed in the light most favorable to the

prevailing party, it cannot be said that the trial court

obviously made a mistake in finding that Rausch had not submitted

evidence of a quantity or quality that would rebut the

presumption of a valid delivery of either deed under the "clear

and convincing" standard.

          B.   Because the Transfer of the Properties Did Not

          Give Rise to an Inference that Rausch Did Not Intend

          Devine To Benefit, No Resulting Trust Was Required.

          Rausch also contends that the trial court erred in

refusing to impose a resulting trust on the properties.  The

existence and extent of equitable interests in land are governed

by the law of the situs of the land.37  Iowa follows the

Restatement (Second) of Trusts and defines a resulting trust as

being imposed " `for the purpose of carrying out what it appears

from the circumstances under which a disposition of property is

made would probably have been the intention of the person making

the disposition.' "38  We have examined a resulting trust only

once, in Sugg v. Morris,39 but did not define it there.  However,

the Restatement (Second) of Trusts has helped guide our

definition of trusts in the past.40

          Rausch also relied upon the Restatement (Second) of

Trusts in the trial court.  The Restatement explains that a

resulting trust arises where circumstances raise an inference

that the payor does not intend that the grantee should have the

beneficial interest in the property, the inference is not

rebutted, and the beneficial interest is not disposed of.41  The

Introductory Note to the chapter on resulting trusts explains

that such an inference may arise in three situations: (1) where

an express private or charitable trust fails in whole or in part;

(2) where a private or charitable trust is fully performed but

some of the trust estate has not yet been exhausted; or (3)

"[w]here property is purchased and the purchase price is paid by

one person and at his direction the vendor transfers the property

to another person."42  Section 405 of the Second Restatement

provides that "[w]here the owner of property transfers it without

declaring any trust, the transferee does not hold the property

upon a resulting trust although the transfer is gratuitous."

Comment a to that section explains that "[w]here a transfer of

property is made without consideration, the inference is that the

transferor intends to make a gift to the transferee, not that he

intends that the transferee should hold the property for the

benefit of the transferor."  Section 440 explains that where a

transfer is made to one person and the purchase price is paid by

another, an inference of a resulting trust arises; but section

441 explains that the inference does not apply if the payor

manifests an intent that no such trust should arise.  Comment a

to section 441 explains that this is the case where the payor

shows an intent to make a gift, and comment b lists factors that

may tend to show whether or not a gift was intended.43

          Rausch alleges various errors by the trial court.  He

first contends that the trial court misunderstands the creation

of a resulting trust, because the trial court only cited portions

of the Restatement in its opinion that state that a resulting

trust may arise where the payor directs the vendor that title

shall be taken by the transferee.  Rausch argues that other

situations exist in which an inference will arise that the payor

did not intend to give the transferee the beneficial interest,

for instance where conditions impose a fiduciary duty on the

grantor or a third person.  Rausch also argues that a resulting

trust is appropriately imposed where this will bring into effect

what the grantor would have chosen had he thought carefully about

the matter.  Rausch's statements of law are valid44 and are

mirrored in the relevant Iowa case law.45  However, the trial

court's emphasis on third-party transfers appears to reflect only

the fact that the first two classic situations raising an

inference of a resulting trust, where there is an attempt at an

express trust or where the purposes of a trust have been fully

performed, could not possibly have been applicable in this case.

Moreover, the substantive basis for the trial court's ruling was

its factual finding that the transfers were gratuitous, as shown

by the court's citation to Restatement section 405.  Comment a to

section 405 states that gratuitous transfers of previously-held

property are subject to the inference that a gift was intended,

not the inference that the payor himself expected to benefit from

the conveyance (which is defined as a resulting trust by

Restatement section 404).  Therefore, the trial court was correct

in ruling that the circumstances at hand gave rise to an

inference of a gift, not a resulting trust. There was no error of

law on this point.

          Next, Rausch alleges that the trial court erred in

stating that "no resulting trust would arise unless Mark could

prove by clear and convincing evidence that he did not intend to

gift the properties to Michelle."  Rausch claims that it was

error to presume a gift and error to require the gift to be

rebutted through clear and convincing evidence.  He claims

instead that circumstances raise an inference that he did not

intend for Devine to have the beneficial interest in the

property.  But the inference of a gift arises as a matter of law

according to Restatement section 405 and as a matter of fact

flowing from the trial court's credibility determination.

          Finally, Rausch attacks the trial court's factual

findings supporting the inference of a gift, which were patterned

on Restatement section 441 comment b, on the ground that Rausch

continued to make mortgage payments on the properties long after

the original gift.  The equity owned by Rausch in each property

at the time the deeds were executed is already presumed to be a

gift according to section 405, which refers to property already

held by the benefactor.  Therefore, the only remaining issue is

whether the subsequent mortgage payments are subject to

Restatement sections 440 and 441.  Section 440 provides that a

resulting trust arises where one party pays a purchase price but

the land is transferred to another.  Section 441 provides that

"[a] resulting trust does not arise where a transfer of property

is made to one person and the purchase price is paid by another,

if the person by whom the purchase price is paid manifests an

intention that no resulting trust should arise."  We do not

consider each mortgage payment to constitute an individual

transfer of property to Devine; rather, each mortgage payment

simply expresses Rausch's completion of his contractual

obligations under the mortgage.  Therefore we doubt that there is

any transfer of property here in the sense that would create a

resulting trust under Restatement section 440 at all. We affirm

on the ground that section 405 applied to both the initial

transfer and the later mortgage payments.

C.             Because Devine Was Not Unjustly Enriched by the
          Transfer of the Properties, No Constructive Trust Was
          Required.
          
          Rausch contends that the trial court erred in refusing

to impose a constructive trust on the properties.  The existence

and extent of equitable interests in land are governed by the law

of the situs of the land.46  Iowa follows the definition of the

Restatement (Second) of Trusts, which states that a constructive

trust expresses a right to restitution based on unjust

enrichment.47  The Restatement of Restitution states that "one who

makes a gift or voluntarily pays money which he knows he does not

owe confers a benefit; in neither case is he entitled to

restitution."48  In the absence of a document evidencing the

intention to create a trust, Iowa will impose a constructive

trust only where (1) there is fraud, duress, or undue influence;

(2) the transferee and transferor were in a confidential

relationship; or (3) the transfer was made by the transferor in

anticipation of death.49  Likewise, in Alaska a constructive trust

is appropriate to prevent unjust enrichment, defined as the

retention of property through "unjust, unconscionable, or

unlawful means."50

          The trial court responded to the constructive trust

cause of action by pointing out that during Rausch and Devine's

ten-year relationship, Rausch had benefitted greatly from

Devine's services, and concluding that her retention of both

properties could not be characterized as unjust or

unconscionable.  Rausch attacks the trial court's

characterization of the facts as unsupported by detailed

evidence, and argues that there is no legal support for the

contention that Rausch deserved to be compensated for her

domestic services.  Devine argues that the transfer was a gift

and was fair.  As to the Iowa deed, although Rausch did allege

that Devine essentially stole the deed in order to record it,

which could be a basis for a finding of fraudulent unjust

enrichment, the trial court did not give credence to this

allegation, and there is no other applicable basis in Iowa law on

which to impose a constructive trust.  Regarding the Anchorage

deed, Rausch does not allege that Devine obtained the title to

that property through any "unjust, unconscionable, or unlawful

means."51  Rather, the argument is only that it is unfair that

Devine should hold title to something that Rausch paid for.

Whatever the merits of that argument, that Devine holds title to

property that Rausch paid for does not constitute unjust

enrichment.52  We interpret the trial court's reasoning on this

issue as a rejection of the implication that receiving property

for acting as a stay-at-home parent is unjust, unconscionable, or

unlawful, and affirm its ruling denying a constructive trust.

V.   CONCLUSION

          Because Rausch failed to rebut the presumption of
delivery of the deeds by clear and convincing evidence, because
gratuitous transfers do not raise an inference of intent to
benefit someone other than the transferee such that a resulting
trust is appropriate, and because a freely gratuitous transfer is
not unjust enrichment justifying the imposition of a constructive
trust, we AFFIRM the superior court in all respects.
_______________________________
1         Restatement (Second) of Trusts  440 (1959).
2    State Farm Auto. Ins. Co. v. Raymer, 977 P.2d 706, 712
(Alaska 1999); McKnight v. Rice, Hoppner, Brown & Brunner, 678
P.2d 1330, 1335 (Alaska 1984) (quoting George Gleason Bogert &
George Taylor Bogert, Trusts and Trustees  471, at 3 (rev. 2d
ed. 1978)).
3    D.M. v. D.A., 885 P.2d 94, 96 n.3 (Alaska 1994).
4    Wood v. Collins, 812 P.2d 951, 955 n.4 (Alaska 1991).
5    Id. at 956 n.5; Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska
1979).
6    Klosterman v. Hickel Inv. Co., 821 P.2d 118, 121-22 (Alaska
1991).
7    Parker v. N. Mixing Co., 756 P.2d 881, 892 n.25 (Alaska
1988); Alaska R. Civ. P. 52(a).
8    Klosterman, 821 P.2d at 122.
9    In re A.B., 791 P.2d 615, 621 n.9 (Alaska 1990).
10    At oral argument, Rausch also suggested that the trial court
should simply have divided the properties in accordance with the
intention of the parties under Tolan v. Kimball, 33 P.3d 1152,
1154 (Alaska 2001); D.M. v. D.A., 885 P.2d 94, 97 (Alaska 1994);
and Wood v. Collins, 812 P.2d 951, 956-57 (Alaska 1991).  While
these cases do govern property division between unmarried
domestic partners, we can find no reference to them in any trial
argument or in Rausch's appellate briefing.  Accordingly, we hold
that this argument has been waived.  D.H. Blattner & Sons, Inc.,
v. N.M. Rothschild & Sons, Ltd., 55 P.3d 37, 54 n.69 (Alaska
2002) (issues not raised in trial court are waived on appeal
except where plain error has occurred); Bishop v. Clark, 54 P.3d
804, 815 n.32 (Alaska 2002) (issues not adequately briefed on
appeal are waived).
11    While Devine devotes considerable attention to the issue
whether reformation was available, Rausch does not raise the
claim that the deeds should have been reformed.  Instead, he has
steadfastly maintained that "the court in this case was not
called upon to interpret a document.  The court was required to
determine whether the grantor intended the document to be
effective.  The meaning of the document itself, if it were
delivered, was never in dispute."  Accordingly, it is not
necessary for us to consider reformation.
12    George Chamberlin, Cause of Action to Invalidate Deed for
Failure of Delivery, 5 Shepard's Causes of Action (Second) 471,
539 (1994).
13    Estate of Lampert v. Estate of Lampert, 896 P.2d 214, 220
(Alaska 1995); Restatement (Second) of Conflict of Laws  223
(1971); Robert A. Leflar, American Conflicts Law  169 (3d ed.
1977).
14    Heavner v. Kading, 228 N.W. 313 (Iowa 1929).
15    Iowa Code Ann.  557.3 (West, WESTLAW through 2002 2d. Ex.
Sess.).
16    Orud v. Groth, 652 N.W.2d 447, 451 (Iowa 2002); Klosterboer
v. Engelkes, 125 N.W.2d 115, 117 (Iowa 1963).
17    Orud, 652 N.W.2d at 451; Klosterboer, 125 N.W.2d at 117.
18    Orud, 652 N.W.2d at 451; Avery v. Lillie, 148 N.W.2d 474,
477 (Iowa 1967).
19    Avery, 148 N.W.2d at 477; Klosterboer, 125 N.W.2d at 117.
20    Avery, 148 N.W.2d at 477-78.
21    Id. at 478.
22    See Richard R. Powell et al., Powell on Real Property
81A.04[2] (Matthew Bender Real Property Law CD-ROM, rel. 101,
Dec. 2002); 23 Am. Jur. 2d Deeds  102-48 (2002).
23    Bennis v. Alexander, 574 P.2d 450, 451-52 (Alaska 1978).
24    In a dissenting opinion in Lown v. Nichols Plumbing &
Heating, Inc., 634 P.2d 554, 557 & n.2 (Alaska 1981) (citing 6A
Richard Powell, The Law of Real Property  891, at 81-95 (Rohan
rev. ed. 1980)), Chief Justice Rabinowitz assumed that delivery
law applied and noted that this court had done so in Bennis, 574
P.2d 450.  This assumption did not conflict with the rationale of
the majority opinion in Lown.
25    See Spenard Action Comm. v. Lot 3, Block 1, Evergreen
Subdivision, 902 P.2d 766, 775 (Alaska 1995) (statutory nuisance
abatement case, citing D.M. v. D.A., 885 P.2d 94 (Alaska 1994)
(reformation of deed) and Miscovich v. Tryck, 875 P.2d 1293
(Alaska 1994) (abandonment of mining claim)).  But see Fernandes
v. Portwine, 56 P.3d 1, 5 (Alaska 2002) (clear and convincing
standard does not apply to general tort nuisance).
26    798 S.W.2d 425, 427 (Ark. 1990).
27    84 P.2d 842, 843 (Kan. 1938).
28    928 P.2d 906, 909 (Kan. App. 1997).
29    Crowder, 798 S.W.2d at 426-28.
30    Staats, 84 P.2d at 842-44.
31    Giefer, 928 P.2d at 908-10.
32    In his reply brief, Rausch argues for the first time that no
presumption of delivery should have arisen at all because the
recording was not performed by the grantor.  Issues raised for
the first time in the reply brief are deemed waived.  Childs v.
Tulin, 799 P.2d 1338, 1340 n.5 (Alaska 1990).  However, we also
note that Rausch's argument is incorrect:  Neither the Iowa cases
nor the treatises make an absolute distinction between recording
by the grantor and the grantee.  See, e.g., Orud v. Groth, 652
N.W.2d 447, 451 (Iowa 2002) ("A duly executed and recorded deed
ordinarily raises a rebuttable presumption of delivery with the
present intent of passing immediate title and the right of
possession."); Powell, supra note 2 at  81A.04[2][a][iv] ("Upon
a demonstration that the deed has been recorded by the grantor or
grantee, or by their agents, a rebuttable presumption of delivery
arises." (emphasis added)); Am. Jur. 2d Deeds, supra note 22 at
141 ("The recording of a regularly executed and acknowledged deed
by either the grantor or the grantee raises a rebuttable
presumption of delivery . . . ." (emphasis added) (footnotes
omitted)).
33    If Rausch retained the Iowa deed intending for it to become
effective only at his death, and never surrendered the deed to
Devine, as Rausch alleges, then it was ineffective as a transfer
for lack of delivery under Iowa law.  Klosterboer v. Engelkes,
125 N.W.2d 115, 117 (Iowa 1963).  If Rausch had indeed
surrendered the Iowa deed to Devine but still intended for it to
become effective only upon his death, then the deed again would
have been ineffective for lack of delivery.  Avery v. Lillie, 148
N.W.2d 474, 477 (Iowa 1967).  Rausch could have achieved his
allegedly desired result by, inter alia, drafting a will, by
depositing the quitclaim deed to a third party without reserving
the right to recall it, by reserving a life estate for himself in
the deed, or by transferring the property to himself and Devine
as joint tenants with right of survivorship.
34    Under Bennis v. Alexander, 574 P.2d 450, 452 (Alaska 1978),
unproved oral conditions on a deed are ineffective, and the
resulting property transfer is both effective and unencumbered.
Rausch could have achieved his allegedly desired result of
guaranteeing Devine housing until Sydney's majority by, inter
alia, granting Devine a lease with a term of years.
35    Orud, 652 N.W.2d at 451.
36    Alaska R. Civ. P. 52(a); Parker v. Northern Mixing Co., 756
P.2d 881, 892 (Alaska 1988).
37    Restatement (Second) of Conflict of Laws  235 (1971);
Leflar, supra note 13 at  172.
38    Orud, 652 N.W.2d at 452 (quoting Restatement (Second) of
Trusts  404, Introductory Note, at 324 (1959)).
39    392 P.2d 313, 316 (Alaska 1964).
40    Alaska State Employees Ass'n v. Alaska Public Employees
Ass'n, 825 P.2d 451, 459 (Alaska 1991) (defining trusts
generally); McKnight v. Rice, Hoppner, Brown & Brunner, 687 P.2d
1330, 1335 (Alaska 1984) (defining constructive trust).
41    Restatement (Second) of Trusts  404, Introductory Note, at
322-23.
42    Id. at 323.
43    These factors include: (1) declarations made by the payor at
any time regarding the transfer; (2) the relationship between the
payor and transferee; (3) whether the transferee is an
individual, corporation, or charitable corporation; (4) the
relative financial positions of the payor and transferee; (5)
whether a gift by the payor to the transferee would be
improvident; (6) the presence or absence of any reason for taking
title in the name of the transferee other than to provide the
beneficial interest.  Restatement (Second) of Trusts  441 cmt.
b.
44    Restatement (Second) of Trusts  404, Introductory Note, at
324.
45    Orud v. Groth, 652 N.W.2d 447, 452 (Iowa 2002) (inference of
resulting trust raised through letter from grantor drafted
concurrently with conveyance explaining that any proceeds from
sale of property by transferee should be distributed among all of
transferee's children).
46    Restatement (Second) of Conflict of Laws  235 (1971);
Leflar, supra note 13 at  172.
47    Orud, 652 N.W.2d at 452 n.2 (citing Restatement (Second) of
Trusts  404, Introductory Note, at 326); Restatement of
Restitution  160 cmt. b (1937).
48    Restatement of Restitution  1 cmt. c.
49    Orud, 652 N.W.2d at 452.
50    State Farm Auto. Ins. Co. v. Raymer, 977 P.2d 706, 712
(Alaska 1999) (quoting McKnight v. Rice, Hoppner, Brown &
Brunner, 678 P.2d 1330, 1335 (Alaska 1984) (quoting G. Bogert,
supra note , at 3)).
51    Raymer, 977 P.2d at 712 (quoting McKnight, 678 P.2d at 1335
(quoting G. Bogert, supra note , at 3)).
52    Restatement of Restitution  1 cmt. c.