Beach v. Beach, No. 01CA0384.

• Decision Date: 31 January 2002
• Docket Number: No. 01CA0384.
• Citation: 56 P.3d 1125
• Parties: Mary L. BEACH, Plaintiff-Appellant, v. Karen K. BEACH, Defendant-Appellee.
• Court: Colorado Court of Appeals

56 P.3d 1125

Mary L. BEACH, Plaintiff-Appellant, v. Karen K. BEACH, Defendant-Appellee.

No. 01CA0384.

Colorado Court of Appeals, Div. III.

January 31, 2002.

Certiorari Granted November 4, 2002.

Hanes & Schutz, P.C., Richard W. Hanes, Timothy J. Schutz, Colorado Springs, CO, for Plaintiff-Appellant.

Michael J. Frederick, Colorado Springs, CO, Defendant-Appellee.

Opinion by Judge ROTHENBERG.

Plaintiff, Mary L. Beach, appeals the trial court's judgment following a bench trial in favor of defendant, Karen K. Beach. We reverse and remand for further proceedings.

I. Background

Karen K. Beach (the daughter) is the daughter of Mary L. Beach (the mother) and Ralph W. Beach (the father). In 1993, the father's health had severely deteriorated, and the daughter offered her parents the option of moving to her twenty-acre parcel in El Paso County. The parents orally agreed with the daughter to build an addition to her house at no expense to her so the mother and father could live there for the rest of their lives.

After the father died, the living arrangement between the mother and daughter became strained and eventually culminated in the filing of this lawsuit by the mother against the daughter. The mother sought partition of the addition and also alleged conversion of her personal property. In her answer, the daughter denied the mother had an interest in the property and filed a counterclaim to quiet title.

In the trial management order entered, both parties requested that if the trial court found the daughter had a right to partition, it place a value on the entire property and on the mother's interest in the addition, and then give the daughter an opportunity to purchase the mother's interest. If the daughter did not elect to do so and physical partition was not feasible, the parties asked that the trial court order the property to be sold and that the proceeds be divided based on their respective interests.

After hearing the evidence at trial, the court found the parties had entered into an oral contract that created a life estate in the mother and a remainder interest in the daughter. It also found for the mother on her claim of conversion of personal property and awarded nominal damages.

However, the trial court rejected the mother's claim for partition, concluding she had impliedly waived her right to partition the property because her life estate was limited. After concluding the mother was not entitled to partition, the court "as guidance" to the parties determined the present value of the mother's property interest at $48,000 based on expert testimony that the value of the entire twenty-acre parcel, which includes the addition, was approximately $250,000, and that the value of the addition built by the parents was between $49,500 and $100,000.

II. Partition of the Life Estate

The mother first contends the trial court erred in refusing to partition her life estate interest in the addition. We agree.

A.

Initially, we address and reject the daughter's contention that the mother is precluded as a matter of law from bringing this action to partition her life estate interest in the addition. This issue requires the interpretation of a statute and is therefore a question of law that we review de novo. City of Colorado Springs v. Conners, 993 P.2d 1167 (Colo.2000).

Historically, life estates were not subject to partition from the remainder interest. 2 Thompson on Real Property § 19.05 (D. Thomas 2d ed. 1998). The right to partition is usually only held by co-tenants. Federal Deposit Insurance Corp. v. Mars, 821 P.2d 826 (Colo.App.1991). However, statutes may alter this rule and permit a life tenant to partition his or her interest with the remainderman. See generally 59A Am.Jur.2d Partition § 33 (2000). Colorado has such a statute.

Section 38-28-101, C.R.S.2001, states that "[a]ctions for the division and partition of real or personal property or interest therein may be maintained by any person having an interest in such property" (emphasis added).

A life estate is an interest in real property. See 2 Thompson, supra, § 19.02. Accordingly, the holder of the life estate has the statutory right to partition.

Contrary to the daughter's assertion, Federal Deposit Insurance Corp. v. Mars, supra, did not hold that a life estate is not an interest subject to partition and Mars is also factually distinguishable.

There, the parties held "separate concurrent estates," Federal Deposit Insurance Corp. v. Mars, supra, 821 P.2d at 831, in that one party had an interest in the land while the other party had an interest only in the buildings on that land. Further, the trial court did not order partition, finding it would "constitute a waste." Federal Deposit Insurance Corp. v. Mars, supra, 821 P.2d at 831. Instead, the court ordered that the land be sold pursuant to § 38-28-107, C.R.S.2001, which provides: "[I]f . . . the court finds that partition of the property cannot be made without manifest prejudice to the rights of any interested party, the court may direct the sale of such property at public sale upon such terms as the court may fix."

On appeal, a division of this court reversed the order of sale. Because neither party had a property interest in the other's estate and therefore had no common interest in the property, the division concluded the trial court could not order a sale of the land pursuant to § 38-28-107. The Mars court explained:

[W]e have found no authority from any jurisdiction for the proposition that a court sitting in equity may order the sale of land in a case such as this, where the present possessory owner has undisputed fee title, in order to benefit one who holds no interest in the land, either present or prospective.

Federal Deposit Insurance Corp. v. Mars, supra, 821 P.2d at 832. The division in Mars did not address whether other types of interests could be partitioned.

Here, it is undisputed that the daughter holds a remainder interest in the addition and that the mother holds the corresponding life estate. Because they have a common interest in the property, we conclude the trial court did not err in determining the mother was entitled to maintain an action under § 38-28-101 for partition of her life estate from the daughter's remainder interest.

B.

Both parties challenge the trial court's interpretation of their oral agreement pertaining to the life estate.

The existence of an oral contract, its terms and conditions, and the intent of the parties are questions of fact to be determined by the trier of fact. See Huddleston v. Union Rural Electric Ass'n, 841 P.2d 282, 291-92 n. 12 (Colo.1992).

If no conflict exists regarding the meaning of the terms used, the intent of the parties is to be determined by the court from those terms as a matter of law. If the court cannot ascertain the parties' intentions from those terms, the question becomes one of fact to be established by extrinsic evidence. Huddleston v. Union Rural Electric Ass'n, supra.

We must accept the trial court's findings of fact unless they are so clearly erroneous as to have no support in the record. Continental Western Insurance Co. v. Jim's Hardwood Floor Co., 12 P.3d 824 (Colo.App. 2000). However, we review de novo the questions of law arising in interpreting a contract. Cruz v. Farmers Insurance Exchange, 12 P.3d 307 (Colo.App.2000).

Here, it was undisputed that the parents agreed to pay the daughter approximately $48,000 to build the addition to the daughter's house, that the parents were to live in the addition for the rest of their lives, and that after they both died the addition was to become the daughter's sole property. The record reflects these were the only explicit terms of the oral agreement.

The statute of frauds was not in issue and the parties also do not dispute the trial court's determination, nor do we, that this agreement created a life estate in the parents that allowed them to reside in the addition and also gave the daughter a remainder interest in the addition for which she had no obligation to pay. See Collins v. Shanahan, 34 Colo.App. 82, 88, 523 P.2d 999, 1003 (1974)("The primary characteristic of a life estate in land is that the interest is limited by the life of some person."), aff'd in part & rev'd in part, 189 Colo. 169, 539 P.2d 1261 (1975). It is also undisputed that the life estate was to be measured by the life of the parent who lived longer.

At issue is whether the trial court erred in concluding the mother impliedly waived her right to bring an action for partition of the life estate. We agree with the mother that the trial court erred in reaching that conclusion.

The holder of an interest in land may expressly waive the right to partition. See Twin Lakes Reservoir & Canal Co. v. Bond, 157 Colo. 10, 401 P.2d 586 (1965); see also McIntire v. Midwest Theatres Co., 88 Colo. 559, 560, 298 P. 959, 959 (1931)("[T]here is nothing inalienable about this right of partition. A tenant in common may contract it away....").

No one contends such an express waiver occurred here.

A waiver of the right to partition also may be implied when partitioning the interest would undermine a contract between the parties. Twin Lakes Reservoir & Canal Co. v. Bond, supra; see also 59A Am.Jur.2d Partition § 61 (2000).

Here, although the parties never raised the issue in their pleadings or at trial, the trial court concluded the mother had impliedly waived her right to bring a partition action, finding that the mother's life estate was limited and that only she could occupy the addition.

Relying on Twin Lakes Reservoir & Canal Co. v. Bond, supra, the trial court also determined that:

[b]ecause the addition is to be [the daughter's] property after the deaths of both parents, it is inherent in the agreement that the property could not be partitioned, nor can either party be forced to sell her interest. Each party to the agreement waived any right of partition, for to partition the property would

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