Bissonnette v. Ventura, C.A. No. PC 02-3437 (RI 11/30/2004)
| Decision Date | 30 November 2004 |
| Docket Number | C.A. No. PC 02-3437 |
| Parties | KAREN A. BISSONNETTE v. ANTHONY F. VENTURA |
| Court | Rhode Island Supreme Court |
Before this Court is a matter for decision following a non-jury trial in which Plaintiff Karen A. Bissonnette (Bissonnette) brought a complaint against Defendant Anthony F. Ventura (Ventura). Bissonnette sought a partition by sale of property owned in joint tenancy with Ventura, as well as attorney's fees and such other relief as the Court deems just. Ventura counterclaimed seeking compensatory damages for his payment of all joint accounts, plus interest and costs; compensatory damages for repairs caused by vandalism to his truck; compensatory damages for all payments made toward the mortgage, taxes, insurance, utilities, sewer and water bill, maintenance and improvements; attorney's fees; and such other relief the Court deems just. Jurisdiction is pursuant to G.L. 1956 § 8-2-13.
On September 14, 1988, Bissonnette and Ventura, as joint tenants, purchased a parcel of real property with a house. Bissonnette and Ventura purchased the property for $110,000.00, making a down payment of $11,000.00 and mortgaging the remaining $99,000.00. Bissonnette and Ventura each contributed $5,500.00 to the down payment.
Bissonnette and her minor child and Ventura and his minor child resided at the home until July 1, 1997. (Ventura's minor child resided at the home on weekends and during vacations at first, but eventually resided there permanently.) From September 14, 1988 until July 1, 1997, Ventura made mortgage payments totaling approximately $80,855.69 and also paid taxes, insurance, water and sewer bills from funds in a joint checking account with Bissonnette. Bissonnette paid all other household expenses, such as utility and food bills, out of a checking account held jointly with her mother. When Bissonnette left the property in July 1997, she ceased payments for mortgage, taxes, insurance, and any household expenses. She never received any rents or proceeds from the property.
Ventura's truck was twice vandalized within several months of Bissonnette's departure from the home. The first instance involved spray paint on the side of the truck, while the second involved damage to the truck's tires caused by roof nails. The repair costs total approximately $638.16.
This Court has heard testimony, examined all exhibits, and reviewed the evidence before it. Decision is herein rendered.
"In all actions tried upon the facts without a jury . . . the court shall find the facts specially and state separately its conclusions of law thereon . . . ." R.I. Super. R. Civ. P. 52(a). In a non-jury trial, "the trial justice sits as a trier of fact as well as of law." Hood v. Hawkins, 478 A.2d 181, 184 (R.I. 1984). "Consequently, [s]he weighs and considers the evidence, passes upon the credibility of witnesses, and draws proper inferences." Id. "The task of determining credibility of witnesses is peculiarly the function of the trial justice when sitting without a jury." State v. Sparks, 667 A.2d 1250, 1251 (R.I. 1995) (citing Walton v. Baird, 433 A.2d 963, 964 (R.I. 1981)). "It is also the province of the trial justice to draw inferences from the testimony of witnesses. . . ." Id.; Rodriques v. Santos, 446 A.2d 306, 312 (R.I. 1983) (). When rendering a decision in a non-jury trial, "the trial justice need not engage in extensive analysis to comply with this requirement." White v. LeClerc, 468 A.2d 289, 290 (R.I. 1983). Thus, "even brief findings will suffice as long as they address and resolve the controlling factual and legal issues." Id.
As a preliminary issue, Ventura, citing § 34-15-20, argues that Bissonnette's failure to join the mortgage company to this suit is fatal to her claim for partition. This Court does not agree. Section 34-15-20 specifically refers to reversioners and remaindermen, while a mortgagor is akin to a lien holder. The statute provides for the ascertainment of persons in being who would have a reversionary or remainder interest in the property, such as in the making of a testamentary class gift. This Court does not read § 34-15-20 to refer to the mortgage company. It is well-settled that, "[t]he holder of a mortgage or other lien upon the undivided interest of a co-tenant is not, in the absence of a statute stating otherwise, a necessary party to a suit for partition, since the lien is transferred to the interests in severalty allocated to the co-tenants." 59A Am. Jur. 2d Partition § 95 (2003).
Partition is available in two forms: in kind or by sale. Partition by sale occurs when the property is sold and the proceeds are divided among those with interests in the land. Though a requirement at common law, parties are not required to be co-tenants in order to effectuate a partition. DeLisi v. Caito, 463 A.2d 167 (R.I. 1983) (citing G.L. 1956 § 34-15-20 (2004)). Rhode Island courts historically favored partition in kind; that is, physical division of the property by metes and bounds; however, the modern trend is to leave the choice between sale and physical partition to the judge's discretion. DeLisi v. Caito, 463 A.2d 167, 169 (R.I. 1983) (citing DeBartolo v. DiBattista, 117 R.I. 349, 367 A.2d 701 (1976)); Matracia v. Matracia, 119 R.I. 431, 437, 378 A.2d 1388, 1391 (1977); Bianchini v. Bianchini, 76 R.I. 30, 34-35, 68 A.2d 59, 62 (1949); cf. Lannon v. Lannon, 40 R.I. 60, 62, 99 A. 819, 820 (1917) ().
"In this state partition is governed by statute." Bianchini, 76 R.I. at 33, 68 A.2d at 61 (citing G.L. 1956 § 34-15-2 and § 34-15-16 (1938)). In an action for partition, the Superior Court may, in its discretion, order the whole or any portion of the premises sold. Section 34-15-16 (2004); see Bianchini, 76 R.I. at 33-35, 68 A.2d at 61-62 (). The court may also divide any "portion, or tract thereof or the interest of the plaintiff . . . or of the defendant . . . in the whole premises . . . ." Section 34-15-16 (2004). "The intent of the statute is . . . [that] the court may in its discretion order a sale of the property and a division of the proceeds." Bianchini, 76 R.I. at 34, 68 A.2d at 62 (quoting Lannon v. Lannon, 40 R.I. 60, 62, 99 A. 819, 820 (1917)).
"All joint tenants . . . who now are or hereafter may be actually seised or possessed of any estate of inheritance in any lands . . . may be compelled to make partition between them of those lands . . . by civil action." Section 34-15-1 (2004). The court also has discretion to determine the set off, or allocation, of the remainder of the estate as between plaintiff and defendant. Section 34-15-15 (2004). "The shares of joint tenants are presumed to be equal although the contrary may be shown." Lucchetti v. Lucchetti, 85 R.I. 105, 111, 127 A.2d 244, 248 (1956).
In her claim for partition, Bissonnette states that she contributed half of the down payment to secure the mortgage for the property. Bissonnette argues that she contributed more than half of all monthly household expenses during the period from 1988 until 1997 by way of a joint bank account. Bissonnette argues that she has in effect subsidized Ventura's ability to live on the premises since 1997. Bissonnette maintains she gained no rent from the property and lacked actual possession or use of it. Additionally, Bissonnette argues that this Court may use its discretion to determine whether to partition the property by sale, and that equity demands it be done, and the proceeds divided equally between Bissonnette and Ventura.
Alternatively, Ventura claims that he made all of the payments with respect to the property and Bissonnette made no contributions to such expenses as mortgage, insurance, taxes, and water and sewer expenses. Ventura argues that Bissonnette is entitled only to a refund of her initial cash outlay of $5,500 that was paid to secure the mortgage, with no interest, costs or attorney's fees.
In Matracia v. Matracia, 119 R.I. 431, 378 A.2d 1388 (1977), the court ordered a partition by sale of property held by a husband and wife. The court found that the petitioner wife obligated herself as joint owner with sufficient consideration by signing a mortgage note and working and pooling her income with her husband's income in order to subsist. Matracia, 119 R.I. at 434-35, 378 A.2d at 1390. Mr. and Mrs. Matracia were found to be joint owners of the property, and the court ordered the proceeds from the partition sale be divided equally. Id. The respondent husband, maintaining that he was entitled to a greater allocation, alleged that the wife had "paid none of the expenses" but rather that he had paid them all. Matracia, 119 R.I. at 437 378 A.2d at 1391. The determinative factors were the signing of the mortgage note and the pooling of income to share expenses. Id. The court upheld the trial justice's proper exercise of discretion, holding for the petitioner in the amount of one half of the partition sale proceeds. Matracia, 119 R.I. at 438, 378 A.2d at 1391.
In the case at bar, Bissonnette and Ventura each contributed to the down payment on the property, and both parties obligated themselves pursuant to the mortgage note on the property. The deed instrument itself explicitly states that Bissonnette and Ventura took title to the property as joint tenants. Ventura alleges that Bissonnette made no contributions to the payment of the mortgage, taxes, insurance, etc. on the property, but rather that Ventura was the one who made those payments. The evidence demonstrates, however, that Bissonnette and Ventura maintained a joint bank account from which some expenses were paid and Bissonnette paid additional expense out of a joint account she had with...
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