Eastman v. Nelson, 10028

• Decision Date: 13 May 1982
• Docket Number: No. 10028,10028
• Parties: Margaret Ann EASTMAN, Plaintiff and Appellant, v. Brian W. NELSON, Defendant and Appellee, and Gate City Savings and Loan Association of Fargo, North Dakota, Mortgagee. Civ.
• Court: North Dakota Supreme Court

Page 134

319 N.W.2d 134

Margaret Ann EASTMAN, Plaintiff and Appellant, v. Brian W. NELSON, Defendant and Appellee and Gate City Savings and Loan Association of Fargo, North Dakota, Mortgagee.

Civ. No. 10028.

Supreme Court of North Dakota.

May 13, 1982.

Solberg, Stewart, Boulger & Miller, Fargo, for plaintiff and appellant; argued by Garylle B. Stewart, Fargo.

William Kirschner, Fargo, for defendant and appellee.

PAULSON, Justice.

Margaret Ann Eastman appeals from the judgment of the District Court of Cass County dated May 4, 1981. We affirm.

On March 23, 1973, Margaret Ann Eastman [Margaret] and Brian W. Nelson [Nelson] purchased certain real property in the city of Fargo. Margaret and Nelson acquired the property as tenants in common, and each signed an "Assumption of Indebtedness," thereby assuming the existing mortgage on the property. The parties took possession of the property, with Nelson and Tom Eastman, Margaret's husband, engaging in a partnership law practice on the premises. Through February, 1978, Margaret Eastman and Nelson contributed equally to the mortgage payments and other necessary expenses on the property.

Beginning in March, 1978, Nelson ceased making any further mortgage payments or other financial contributions, and Margaret continued to meet all financial obligations on the property. At some point in time, Tom Eastman and Nelson dissolved their partnership, and they now are engaged in separate law practices on the premises.

Margaret Eastman brought a partition action pursuant to Chapter 32-16 of the North Dakota Century Code, seeking a sale of the property, adjudication of the respective interests of the cotenants, and disposition of the proceeds of the sale. Margaret requested that the court find that Nelson had abandoned his interest in the property, as evidenced by his failure to contribute, and declare his interest in the property to be forfeited to Margaret. In the alternative, Margaret requested that the court distribute the proceeds of the sale to Margaret and Nelson in proportion to their respective financial contributions to the property.

On February 28, 1980, the parties filed a written stipulation with the court, whereby they stipulated to the relevant facts and agreed that the property would be sold by private sale within 60 days, with the proceeds of the sale to be divided between the parties in accordance with the court's order determining their respective equity interests in the property. The parties thereafter submitted briefs arguing their respective positions on how the proceeds of the sale should be divided between them.

In its memorandum opinion dated April 15, 1981, the district court ordered that Nelson make contribution for his share of all expenditures on the property which Margaret had made after March 1, 1978, with interest at the legal rate of six percent. Nelson was then to retain his one-half interest in the commonly held property, and would receive one-half of the proceeds from its sale. The court further ordered that if Nelson failed to make contribution within 32 days he would be deemed to have abandoned his interest in the property. Judgment in accordance with the memorandum opinion was entered on May 4, 1981.

Nelson appealed from the district court judgment, and Margaret filed a cross-appeal. Nelson subsequently abandoned his appeal, and we are therefore presented only with Margaret's cross-appeal.

The sole issue raised on appeal is whether or not the district court erred in allowing Nelson to make his overdue payments on the property with interest and thereby retain his one-half interest in the jointly held property. Margaret argues that the court should have declared Nelson's interest to be forfeited to her, or, in the alternative, that the parties' respective interests in the property should have been computed according to their respective financial contributions towards the property.

An action for partition lies within the courts' equity powers. Knight v. Harrison, 43 N.D. 76, 88, 174 N.W. 632, 636 (1919). Trial courts necessarily exercise wide judicial discretion in partition actions to "do equity" and to make a fair and just division of the property or proceeds between the parties. Richmond v. Dofflemyer, 105 Cal.App.3d 745, 766, 164 Cal.Rptr. 727, 739 (1980); Miller v. Miller, 222 Kan. 317, 564 P.2d 524, 527 (1977). In exercising its discretion in a partition action, the trial court has great flexibility in fashioning appropriate relief for the parties. Cummings v. Anderson, 22 Wash.App. 634, 638, 590 P.2d 1297, 1300 (1979). A trial court's determination of the proper division of property or proceeds between the parties and the form of relief granted will not be disturbed on appeal unless the trial court has abused its discretion. Miller v. Miller, supra, 564 P.2d at 527-528; see...