Lawrence v. Harvey

• Decision Date: 26 March 1980
• Docket Number: No. 14879,14879
• Citation: 607 P.2d 551,37 St.Rep. 370,186 Mont. 314
• Parties: Mallory D. LAWRENCE, Plaintiff and Appellant, v. Christene HARVEY et al., Defendants and Respondents.
• Court: Montana Supreme Court

Page 551

607 P.2d 551

186 Mont. 314

Mallory D. LAWRENCE, Plaintiff and Appellant, v. Christene HARVEY et al., Defendants and Respondents.

No. 14879.

Supreme Court of Montana.

Submitted on Briefs Jan. 16, 1980.

Decided March 7, 1980.

Rehearing Denied March 26, 1980.

Larsen & Neill, Great Falls, for plaintiff and appellant.

Thomas E. Boland, Great Falls, for defendants and respondents.

DALY, Justice.

This is an action for partition of real property brought by Mallory D. Lawrence. The District Court of the Eighth Judicial District, Judge H. William Coder presiding, denied plaintiff's prayer for a partition sale in a judgment dated June 12, 1979. This judgment ordered the plaintiff to quitclaim his interest in the property to the individual defendants upon their payment to him of $3,879.15, the sum set by the District Court as representing his equity. The judgment from which he now appeals further required plaintiff Mallory D. Lawrence to pay defendants' attorney's fees and costs.

The property in question is a single family residence located on a standard city lot in Great Falls. By agreement of the parties, the property is not subject to actual partition, and the plaintiff has prayed for a partition sale and a division of the proceeds according to the interests determined by the Court. The defendant First Federal Savings and Loan Association holds a first mortgage on the property. The priority of its lien is conceded by all parties and, by stipulation, it did not participate in these proceedings. The five individual defendants are the children of plaintiff Mallory D. Lawrence by his former wife, Mary K. Lawrence.

The appellant left his family and the family home in August 1968 and thereafter resided in another Montana city. Mary K. Lawrence filed an action for separate maintenance and child support on August 5, 1968, and after a show cause hearing on April 3, 1969, appellant was ordered to pay $225 per month child support to the clerk of the court pending entry of a decree.

The property subject to this litigation was the family home of Mallory D. Lawrence and Mary K. Lawrence prior to their separation and divorce. In the divorce decree dated August 6, 1970, the District Court Judge R. J. Nelson set aside the family home, together with furnishings and fixtures, for the use and benefit of Mary K. Lawrence and the minor children "until further order of the Court." In addition to awarding the use of the family home to Mary K. Lawrence and the four minor children (the eldest child had already attained the age of majority), the divorce decree ordered appellant to pay $225 per month to the clerk of court "as and for the support of the said minor children . . ."

Appellant made the required payments through February 1975, when the youngest of the children attained the age of majority. Later, on December 11, 1975, he petitioned the divorce court for an order determining the respective interests of himself and his former spouse in the property. A hearing was held on this petition on January 8, 1976, but the District Judge made no decision on the petition, despite the efforts of appellant's counsel to obtain a ruling. Mary K. Lawrence discovered that she had terminal cancer and quitclaimed her interest in the property equally to the five children of the parties, the defendants-respondents in this action, in a deed dated and recorded May 5, 1976. She died in 1977. District Judge R. J. Nelson had left the bench at the end of 1976 without ruling on appellant's petition.

Mallory D. Lawrence subsequently filed this action for a partition of the real property on February 9, 1978. The matter was heard by the District Court on April 20, 1979 and the court's findings of fact, conclusions of law, and judgment were entered in favor of the defendants on June 12, 1979.

The property was originally acquired in 1958 by the appellant and Mary K. Lawrence as joint tenants with a right of survivorship. The purchase price of $15,900 was satisfied by the assumption of an existing loan in the amount of $11,750 and by a downpayment of $4,150. The District Court found the source of that downpayment to be $3,029.91 in joint equity from the sale of a previous family home in Missoula and a $2,500 loan from appellant's father in the form of a promissory note signed by both appellant and Mary K. Lawrence. An unspecified portion of this note was paid and the remainder of the obligation was cancelled after the 1970 divorce. The District Court made the further finding that the original amount of principal owing on the mortgage assumed by Mallory D. Lawrence and Mary K. Lawrence had been reduced by $3,608.30 as of the date of the divorce. Based on the foregoing, the District Court determined appellant's interest in the property to be one-half of the downpayment plus one-half of the equity accumulated during the marriage: a total of $3,879.15. Appellant was ordered to quitclaim his interest in the property to the individual defendants upon their payment to him of that sum.

Four issues are presented by this appeal:

1. Whether the District Court abused its discretion by failing to order a partition sale?

2. Whether the District Court abused its discretion by failing to credit appellant with a contribution to the equity in the home for the child support payments he made after the date of divorce?

3. Whether the District Court abused its discretion by failing to give the appellant credit for a pro-rata share of the property's appreciation in value by considering the property at its real market value?

4. Whether Mallory D. Lawrence is estopped from asserting any interest in the property beyond that interest which he had as of the date of the divorce decree?

It is a common practice in cases involving a dissolution of marriage for the District Courts to require that the family home be set aside during the minorities of the children for their use and benefit and for that of their mother as well. It is also usual in such cases for the courts to make some provision in the decree for a final disposition of the house, which is usually the family's only major asset, after the children have reached their majorities and the husband's obligation to support has ceased. The problem in this case arises because the decree of dissolution failed to make an ultimate disposition of the family home, and merely set it aside for the use and benefit of the minor children and their mother "until further order of the Court." No such order was forthcoming prior to the judgment of the District Court in the present action, although the appellant had filed a petition for modification of the decree of dissolution on December 11, 1975, and repeatedly attempted to obtain a ruling on that petition.

Subsequently, Mallory D. Lawrence brought this action for a partition of the real property, requesting a partition sale. The first issue to be resolved is whether or not the District Court abused its discretion by failing to order a partition sale.

During pretrial conference the District Court ruled, on agreement of the parties, that as a matter of law the effect of a quitclaim deed by one of two joint tenants to a third party is to create a tenancy in common between the joint tenant who did not join in the deed and the third party. Appellant argued in the trial court that title to the residence was held in joint tenancy by himself and his former wife, so that when she executed a quitclaim deed to their five children, the joint tenancy was severed and the appellant and his children became tenants in common. Under this theory, he retained an undivided one-half interest in the property while they shared equally in the wife's half and therefore each received an undivided one-tenth interest. In response to the defendants' contentions, appellant claimed in the alternative his contribution to equity as a basis for determining his interest in the property.

"The primary object of an action of partition . . . (is) . . . to divide among the co-owners land held by them either as joint tenants or as tenants in common according to their respective interest . . ." Emery v. Emery (1948), 122 Mont. 201, 200 P.2d 251, 265. In Montana, an action for partition is a special statutory proceeding. Hurley v. O'Neill (1905), 31 Mont. 595, 79 P. 242, 243. "We must therefore look to the statute for the authority to bring the action, and for the procedure to be followed both in bringing the action and after it is instituted." Hurley, supra, 79 P. at 243. Our statute authorizing an action for partition is section 70-29-101, MCA:

"When several cotenants hold and are in possession of real property as joint tenants or tenants in common, in which one or more of them have an estate or inheritance or for life or lives or for years, an action may be brought by one or more of such persons for a partition thereof, according to the respective rights of the persons interested therein, and for a sale of such property or a part thereof if it appears that a partition cannot be made without a great prejudice to the owners." (Emphasis added.)

Although he is a tenant in common holding legal title to an estate of inheritance, the appellant in this case is not in actual possession of the property because of the divorce decree granting exclusive possession to his former wife, now deceased, and their then minor children. Actual physical possession however has been held not to be essential to maintenance of an action for partition under our statute:

"The Montana statute gives the remedy of partition to co-tenants 'who hold and are in possession of real property as joint tenants or tenants in common,' etc. Code Civ.Proc. § 1340 (now § 70-29-101, MCA). We think that the possession which the law imputes to the holder of the legal title is sufficient to maintain partition, under this statute." Heinze v. Butte & Boston Consolidated Mining Co. (9th Cir. 1903), 126 F. 1, 3, cert. den. 195 U.S. 631, 25 S.Ct. 788, 49 L.Ed....