Hackett v. Hackett

• Decision Date: 12 October 1990
• Docket Number: No. 281784,281784
• Citation: 598 A.2d 1112,42 Conn.Supp. 36
• Parties: James E. HACKETT v. Suellen HACKETT, et al. File
• Court: Connecticut Superior Court

Page 1112

598 A.2d 1112

42 Conn.Supp. 36

James E. HACKETT v. Suellen HACKETT, et al.

File No. 281784.

Superior Court of Connecticut Judicial District of New Haven.

Oct. 12, 1990.

Alan E. Silver, P.C., New Haven, for plaintiff.

Michael J. Daly, III and M. Leonard Caine, Waterbury, for named defendant.

ARTHUR H. HEALEY, State Trial Referee.

This particular action comes before this court in an unusual posture. The plaintiff, James E. Hackett, initiated this action in March, 1989, against the defendant Suellen Hackett, his former wife, seeking a partition ¹ of certain real estate on Jerome Lane in Milford to which the record title, since 1972, has stood in the names of James E. Hackett and Suellen Hackett and the survivor of them. ² At the time of purchase in 1972, the Hacketts both executed a purchase money mortgage to the First Federal Savings and Loan Association of New Haven in the amount of $38,300. The Hackets were divorced in April, 1978, after approximately fifteen years of marriage. There was no evidence adduced at the trial that the divorce decree at all operated on this Jerome Lane property so that the record title to it remains as it was acquired in 1972. ³ The plaintiff has lived in these premises since September, 1978, and has paid the expenses for them since that time. ⁴

The defendant has filed a counterclaim in which it is alleged that she and the plaintiff hold this real estate as joint tenants. She also alleges and the plaintiff denies that her "interest in the property exceeds one-half" and her counterclaim sets out that claim as follows: "One-half interest in and to the premises ... plus the value of the deposit the parties made upon the premises at the time they purchased the same." She further alleges that "[t]he deposit made upon said premises at the time of purchase was made from funds given ... as a gift to her; she is equitably entitled to the value thereof and a corresponding increase in value in her interest in the premises." The plaintiff has denied these allegations. She also seeks a partition as well as a "determination of the respective interests of the parties in and to the premises as demanded by law and equity."

The court, Fracasse, J., earlier ordered a judgment of partition by sale and appointed a committee to sell the premises in accordance with that judgment. ⁵ A sale by the committee has already taken place at which the plaintiff, James E. Hackett, was the successful bidder with a bid of $110,000. The court, Celotto, J., has approved the committee sale, ⁶ report and deed as well as the motion for the committee's fee and expenses. ⁷ Thereafter, the plaintiff filed his motion for an immediate hearing "for the determination of the respective rights of the parties to the proceeds of 18 Jerome Lane, Milford, CT." The court, Licari, J., granted the extension for the closing to October 1, 1990. The "Motion for Immediate Hearing," the purpose of which is to obtain an order determining the division of the proceeds of the sale as between the plaintiff and the defendant, was heard before the court at which time both the plaintiff and the defendant, as well as other witnesses testified, and certain documents were admitted into evidence.

The plaintiff contends that he has paid everything since 1978, and that the defendant, because of her laches has waived any interest in the property. He relies on Kievman v. Grevers, 122 Conn. 406, 189 A. 609 (1937). He also maintains that if his claim of laches fails he is entitled to contribution from the defendant for the payments concerning this property that he has made since September, 1978, for such things as the first mortgage, insurance, taxes, maintenance, repairs and the like. In addition, he disputes the impact on this case claimed by the defendant of Vesce v. Lee, 185 Conn. 328, 441 A.2d 556 (1981).

On the other hand, the defendant claims that she is entitled to one half of the $110,000 bid price minus one half of the expenses of the committee's sale, i.e., $1853.67. The defendant also claims that while the plaintiff paid the expenses since September, 1978, it must be realized that he has had this property as a residence since that time and that the value of his use and occupancy over that period exceeds the mortgage payments that he has made. She further maintains that the plaintiff's claim that the court consider his payments of the mortgage, real estate taxes and home insurance over these years in the light of Vesce and contends that they are incident to use and occupancy that the plaintiff has had since late 1978, and for which he has never made any payment to her. She also claims that she cannot be charged with laches because the plaintiff waited since late 1978 until early 1989 to raise his present claims knowing that the divorce decree did not address the ownership of the Jerome Lane property. Acceptance of the plaintiff's claims at this point would, the defendant contends, be tantamount to awarding to him now her share of the property in the original 1978 divorce decree which did not touch this property at all. ⁸ It is the plaintiff, not she, the defendant maintains, who is guilty of laches.

A partition action is equitable in nature. Gaer Bros., Inc. v. Mott, 147 Conn. 411, 415, 161 A.2d 782 (1960); see Varley v. Varley, 189 Conn. 490, 457 A.2d 1065 (1983). "Our courts of equitable jurisdiction are empowered to order the sale of any estate, real or personal, owned by two or more persons, when, in the opinion of the court, a sale would better promote the interests of the owners. General Statutes § 52-500. Ordinarily, in a partition by sale, the claims of the parties as to their interests in the property are considered in connection with the distribution of the proceeds." Gaer Bros., Inc. v. Mott, supra. In a partition sale, even where each party may be the owner of an individual one-half interest in the property, it does not necessarily follow that he or she will be entitled to equal shares of the moneys obtained from the sale as the "[e]quities must be considered and, if established, must be liquidated before distribution is ordered. Rentz v. Eckert, 74 Conn. 11, 16, 49 A. 203 [1901]." Levay v. Levay, 137 Conn. 92, 96, 75 A.2d 400 (1950); see Varley v. Varley, supra; Johnson v. Olmsted, 49 Conn. 509, 517 (1882).

Initially, we note that the defendant alleges that the deposit on this real estate when originally purchased was made from funds given to her as a gift and that she is equitably entitled to the return of that deposit and a corresponding increase in her interest in the proceeds from the sale. The plaintiff's testimony, however, suggests that he be given credit against the sales proceeds involved because he paid the deposit on the Jerome Lane premises when the parties acquired them in 1972. This court does not agree here with the claim of either party. The amount of the deposit that the plaintiff said that he paid was $7000 and he testified that it came from the sale of certain real estate in Waterbury. This deposit, it is claimed, together with the purchase money mortgages in the amount of $38,300 constituted the purchase price.

"It is settled law that where one spouse purchases property entirely with his or her own funds and takes title in the names of both spouses jointly, a rebuttable presumption arises that a gift was intended to the other spouse of a one-half interest in the property.... This is the rule whether the person who pays the purchase price is the husband or the wife." (Citations omitted.) Osborne v. Osborne, 384 Mass. 591, 602, 428 N.E.2d 810 (1981); Sundin v. Klein, 221 Va. 232, 236-37, 269 S.E.2d 787 (1980); Oldham v. Oldham, 58 R.I. 268, 192 A. 758, 762 (1937); see 3 J. Pomeroy, Equity Jurisprudence (4th Ed.) § 1039. It has been said that the general rule is that, when property is paid for by one and taken in the name of another or jointly in both their names, the presumption is that, as between husband and wife as to real property, a gift is presumed from the husband, and that rests on the proposition that the husband is discharging his duty to provide support for his wife. Becchelli v. Becchelli, 109 Ariz. 229, 232, 508 P.2d 59 (1973). The plaintiff, even if this court assumes that he did pay the deposit as claimed, is not entitled to any "credit" for paying the deposit of $7000 at the time of the purchase in 1972 as there is no credible evidence to rebut the presumption of a gift to her. Although the defendant alleges that she furnished the deposit, there is no evidence on which the court concludes that she did so. It should be pointed out, however, that there is authority to the effect that the fact that the wife also obligated herself to repay the mortgage loan used toward the purchase price to the same extent as did the husband militates toward demonstrating that she furnished consideration at the time of the purchase in 1972. See McPherson v. McPherson, 337 Mass. 611, 614, 150 N.E.2d 727 (1958); Carroll v. Markey, 321 Mass. 87, 89, 71 N.E.2d 756 (1947).

As already noted, the parties were divorced in April, 1978, and there is no indication that the divorce decree operated in any way on the Jerome Lane property. Actually, counsel have indicated that the decree did not. Therefore, under the statutes, i.e., General Statutes § 47-14g, ⁹ their interest in this real estate, as to each other, has been that of tenants in common since the 1978 divorce and each, accordingly, owns of record an individual one-half interest in the Jerome Lane real estate. Moreover, the complaint alleges that at all times mentioned, the plaintiff and the defendant coowner "hold the [Jerome Lane] real estate as joint tenants and each has an individual one-half ( 1/2) interest therein." The defendant admits this. Without developing the niceties of real property law, this allegation of the plaintiff is in the nature of a judicial admission in this action, i.e., the plaintiff admits in the pleadings that ...