Brazell v. Meyer, 77-2399-E-3

• Decision Date: 17 September 1979
• Docket Number: No. 77-2399-E-3,77-2399-E-3
• Citation: 42 Or.App. 179,600 P.2d 460
• Parties: Byno BRAZELL, Appellant, v. Addie T. MEYER, also known as Addie T. Brazell, Respondent. ; CA 12526.
• Court: Oregon Court of Appeals

Page 460

600 P.2d 460

42 Or.App. 179

Byno BRAZELL, Appellant, v. Addie T. MEYER, also known as Addie T. Brazell, Respondent.

No. 77-2399-E-3; CA 12526.

Court of Appeals of Oregon.

Argued and Submitted May 23, 1979.

Decided Sept. 17, 1979.

Jeannette Marshall, Medford, argued the cause for appellant. With her on the briefs was William E. Greenberg, Medford.

Thomas J. Reeder, Medford, argued the cause and filed the brief for respondent.

Before SCHWAB, C. J., and THORNTON, BUTTLER and JOSEPH, JJ.

JOSEPH, Judge.

Briefly stated, the single substantial issue in this case is: If unmarried persons who are cohabiting purchase real property in both their names, she using his last name, and their respective contributions toward the purchase price and subsequent improvements are unequal, how should the proceeds of the sale of the property be divided when they go their separate ways?

Appellant Byno Brazell and respondent Addie Meyer met in California and began living together in 1974. He was 51; she was 54. Both had previously been married. She had a well-paying government job and substantial assets accumulated during her prior marriage and from insurance on the life of her deceased husband. She was also receiving a widow's pension. Appellant was a welder. He was disabled for several months in 1974 and 1975 and has been totally and permanently disabled since late 1975 with an eye problem. Respondent was not employed outside the home after she and appellant began living together. The parties maintained joint bank accounts while they were in California, but she always kept some separate assets, as it was their understanding she could and would do. They maintained no joint accounts after moving to Oregon in late 1975.

In February, 1976, the parties purchased a residence in Medford for $26,695. There is no document of title in the record, nor was testimony directed specifically at the question of how title was taken. An escrow closing statement indicates that the property was to be sold to them as "Brazell, Byno I. and Addie T," and she paid the purchase price with a check signed "Addie Meyer." She testified that she contributed all but $4,000 of the purchase price. He disputed that, but the trial court found her more credible on that point and we accept that assessment. It does appear that his financial contribution toward subsequent improvements was greater than hers, but her overall investment in the property was clearly greater.

Appellant brought suit for partition of the real property and various personal property, including an automobile. He claimed that the parties each owned an undivided one-half interest in the real property. At the suggestion of a judge other than the one before whom the case was tried appellant amended his complaint to one for "dissolution of a quasi-marriage." ¹ The trial judge said he would try the matter as one for partition. He applied the principles announced in Beal v. Beal, 282 Or. 115, 577 P.2d 507 (1978), but found the parties had no general intent, explicit or implicit, to share All the property they accumulated during the relationship. On De novo review we agree. We therefore look to indications of the parties' intent with respect to individual items of property. See Rissberger v. Gorton, 41 Or.App. 65, 597 P.2d 366 (1979).

The trial court awarded the automobile to respondent. Appellant paid for it. Title was in respondent's name. She testified that appellant told her he was buying it for her to replace her previous car, which had been sold to his brother. The trial court found her credible on that point, and we find no basis for disagreeing.

The other item in the decree which appellant challenges is the award to respondent of 85 percent of the proceeds of the sale of the residence. That award was based on respondent's contribution of 85 percent of the purchase price.

The parties could not take title to the property as joint tenants (ORS 93.180); nor could they take as tenants by the entireties, because they were not married. They therefore are regarded as having taken title as tenants in common. See Emmons v. Sanders, 217 Or. 234, 244, 342 P.2d 125 (1959); Hughes v. Kay, 194 Or. 519, 242 P.2d 788 (1952); Merit v. Losey, 1942 Or. 89, 240 P.2d 933 (1952). The question is whether they each have an undivided one-half interest, or whether their shares are in proportion to their contributions.

In Brandt v. Brandt, 215 Or. 423, 333 P.2d 887 (1959), the parties attempted to take title to real property as "husband and wife." He furnished the entire purchase price. They believed in good faith that they were married, but their marriage ceremony was void because she had at that time a living husband from whom she had not been divorced. It was held that each had an undivided one-half interest in the property. The court referred to the presumption of a gift which arises when a husband and wife take title jointly, one or the other making a greater contribution, and stated:

"(T)hat presumption of gift must be based primarily on the affection in which a married couple hold each other, and we see no difference in that affection when the parties, in good faith, believe that they are married. The gist of the presumption is their probable intention at the time of the conveyance, and to say that some unknown impediment to a valid marriage negates such an intent at some later date is, to us, unacceptable. * * * (T)he very foundation of an estate by the entirety, which the parties in this case tried to create, is equality. We find nothing in this case to refute this equality and, accordingly, the plaintiff is entitled to partition to secure her the half interest which she claims." 215 Or. at 451, 333 P.2d at 900. (Emphasis supplied.)

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