Delucca v. Delucca

• Decision Date: 08 April 2005
• Docket Number: No. 2004–247.,2004–247.
• Citation: 152 N.H. 100,871 A.2d 72
• Court: New Hampshire Supreme Court
• Parties: Dena DELUCCA and another. v. Roland H. DELUCCA.

152 N.H. 100

871 A.2d 72

Dena DELUCCA and another.

v.Roland H. DELUCCA.

No. 2004–247.

Supreme Court of New Hampshire.

Argued: Jan. 12, 2005.

Opinion Issued: April 8, 2005.

Cleveland, Waters and Bass, P.A., of Concord (William B. Pribis on the brief and orally), for the petitioners.

Fitzgerald, Sessler & Nichols, P.A., of Laconia (Shawn M. Tanguay on the brief and orally), for the respondent.

NADEAU, J.

The petitioners, Dena DeLucca, Dean DeLucca, Toni Cushman and Lori Fasshauer, appeal an order from the Belknap County Probate Court (Hampe , J.) to partition property by selling it and dividing the proceeds. We vacate and remand.

The record supports the following facts. The petitioners sought partition of two parcels of land. One parcel contains 23.14 acres and is located on the southerly side of Crockett Road ("southerly lot"); the other contains 28.97 acres and is located on the northerly side of Crockett Road ("northerly lot"). Both lots were formerly owned by Mildred F. DeLucca. Title to the property passed by will to the respondent, Roland H. DeLucca, and the petitioners. Each petitioner holds an undivided 12.5% interest in the property as a tenant in common and the respondent holds an undivided 50% interest as a tenant in common. The southerly lot contains a garage building, which is currently used by the respondent's son and grandsons to work on their race cars. The petitioners argue that the respondent has allowed the southerly lot to be used in a manner detrimental to the property. The petitioners asked the court to partition the land by giving them the northerly lot and respondent the southerly lot. The petitioners argued that both lots were of equal value and that in any event, any deterioration of the southerly lot was the respondent's fault. The trial court found the lots were not of equal value and ordered that they be sold and the proceeds divided among the parties.

The petitioners contend the trial court erred: (1) when it found that the northerly lot was of significantly greater value; and (2) in ruling that it could order a sale of property without finding that the property cannot be divided so as to give each owner his or her share or interest without great prejudice or inconvenience.

With respect to the first issue, the petitioners argue that at trial they introduced into evidence two separate appraisals showing both lots to be essentially of the same value, and that there was insufficient evidence for the finding that they were not. An action for partition calls upon the court to exercise its equity powers and consider the special circumstances of the case, in order to achieve complete justice. Boissonnault v. Savage, 137 N.H. 229, 232, 625 A.2d 454 (1993). With that in mind, we will not disturb the probate court's decree unless it is unsupported by the evidence or plainly erroneous as a matter of law. See RSA 567–A:4 (1997); In re Estate of Locke, 148 N.H. 754, 755, 813 A.2d 1172 (2002). We review the record of the proceedings before the probate court to determine if the findings, as made by the probate judge, could be reasonably made, given the testimony presented. In re Buttrick, 134 N.H. 675, 676, 597 A.2d 74 (1991). In reviewing this record we are guided by the rule that "the trier of fact is in the best position to measure the persuasiveness and credibility of evidence and is not compelled to believe even uncontroverted evidence." Id. (quotation and brackets omitted). Furthermore, "it was within the discretion of the trial judge to resolve conflicts in the evidence. The trial court could accept or reject such portions of the evidence presented as he found proper, including that of the expert witnesses." Tennessee Gas Pipeline Co. v. Town of Hudson, 145 N.H. 598, 602, 766 A.2d 672 (2000) (quotation and citation omitted). Thus, we defer to the trial court's resolution of conflicts in the testimony, the credibility of witnesses, and the weight to be given evidence. Cook v. Sullivan, 149 N.H. 774, 780, 829 A.2d 1059 (2003).

A review of the record reveals the evidence was sufficient to sustain the probate court's ruling that the northerly lot was worth significantly more than the southerly lot. During trial there was testimony by Joanna Chase, a licensed appraiser, that if the properties were considered single lots, they would be of approximately the same value. However, she was unable to testify as to the current highest and best use of the lots. Dean M. Clark, a land surveyor, testified that the southerly lot could be subdivided into two lots. He testified the northerly lot could be subdivided into five lots, if a short road and cul-de-sac were constructed. The trial court found, based upon the expert testimony and his actual observation of the lots, that the northerly lot was significantly more valuable than the southerly lot.

The petitioners argue the trial court erred when it relied upon a hypothetical subdivision plan that did not establish an actual value for the subdivided lots and when it applied the "highest and best use" valuation standard in determining the lots had disparate values. However, we "have never attempted to tie the fact finder's hands with a rigid fair market value formula in the absence of legislative directive." Tennessee Gas Pipeline Co., 145 N.H. at 602, 766 A.2d 672 (brackets omitted). Here, there is no legislative directive and thus it was not error for the trial court to apply the highest and best use standard. In addition, the valuation of property is a question of fact for the trial court, and we will not overturn its finding unless it is clearly erroneous or unsupported by the evidence. See Rye Beach Country Club v. Town of Rye,

143 N.H. 122, 127, 719 A.2d 623 (1998). We also note that the trial court had a view of the property, and the findings of the trial court are within its sound discretion, particularly when a view has been taken. See

Husnander v. Town of Barnstead, 139 N.H. 476, 478–79, 660 A.2d 477 (1995). Therefore, because the trial court's valuation is not lacking in evidential support, we do not find it erroneous as a matter of law.

The second issue presents a question of statutory interpretation. This court is the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole. Remington Invs. v. Howard, 150 N.H. 653, 654, 843 A.2d 334 (2004). In interpreting a statute, we first look to the language of the statute itself, and, if possible, construe that language according to its plain and ordinary meaning. Id. Where the language of a statute is clear on its face, its meaning is not subject to modification. Id. Unless we find that the statutory language is ambiguous, we need not look to legislative intent. Id. Furthermore, we interpret statutes in the context of the overall statutory scheme and not in isolation. In the Matter of Watterworth & Watterworth, 149 N.H. 442, 445, 821 A.2d 1107 (2003). We review the probate court's interpretation of a statute de novo . See Remington Invs., 150 N.H. at 654, 843 A.2d 334.

We begin by examining the relevant provisions of RSA chapter 547–C. RSA 547–C:25 (Supp.2004) provides:

When the proceedings are pending, if it is alleged in the petition that the property is so situated or is of such a nature that it cannot be divided so as to give each owner his or her share or interest without great prejudice or inconvenience and the court so finds, the court may order it to be sold and the proceeds from the sale to be divided among the owners according to their respective rights, titles, or interests, and may make all other orders that may be necessary to cause such sale and the distribution of the proceeds, as a court of equity may do in like cases.

RSA 547–C:30 ...