Matracia v. Matracia

• Decision Date: 08 November 1977
• Docket Number: No. 76-78-A,76-78-A
• Citation: 378 A.2d 1388,119 R.I. 431
• Parties: Germaine M. MATRACIA v. Cosmo S. MATRACIA, Sr. ppeal.
• Court: Rhode Island Supreme Court

Page 1388

378 A.2d 1388

119 R.I. 431

Germaine M. MATRACIA v. Cosmo S. MATRACIA, Sr.

No. 76-78-Appeal.

Supreme Court of Rhode Island.

Nov. 8, 1977.

[119 R.I. 438] Kirshenbaum & Kirshenbaum, Alfred Factor, Providence, for petitioner.

Kenneth J. Macksoud, Providence, for respondent.

OPINION

DORIS, Justice.

This is an appeal from a Family Court decree granting the petitioner's motion seeking partition of the family residence owned by the petitioner and her respondent husband as joint tenants. The decree ordered that the residence be sold and the proceeds be divided equally between the parties. The correctness of that decree is the sole issue before us on appeal.

The record indicates that in 1952 respondent, hereinafter sometimes referred to as Cosmo Sr., and his first wife Josephine, deceased, acquired as joint tenants the land in question and caused to be built thereon a one-story home at the cost of $15,000 of which $8,000 was paid in cash and the balance of $7,000 was paid by a mortgage. Cosmo Sr. and Josephine resided together in the home until 1966 when they added a second-floor apartment to the residence at a cost of $14,000. The respondent and his first wife moved to the second-floor apartment and their son Cosmo Jr. and his family moved into the first-floor apartment. In order to pay for the addition of the new apartment, the property was mortgaged for $16,000 representing the cost of construction and the payment of $2,000 on the original mortgage. Cosmo Sr., Josephine and Cosmo Jr. all executed the mortgage note in the amount of $16,000. The respondent and his son Cosmo Jr. agreed that they would each pay approximately $95 monthly which represented one-half of the mortgage payment and taxes due on the property. In October 1966, Josephine died; and on November 25, 1967, respondent married petitioner, Germaine. The parties occupied the second-floor apartment along with a boarder from whom petitioner received $20 weekly as payment for her room and board.

On August 29, 1968, respondent purchased his son Cosmo Jr.'s interest in the property for $1,800 in a transaction whereby a deed of the property was conveyed by respondent and Cosmo Jr. to Cosmo Sr. and Germaine, the parties here, as joint tenants. In order to pay Cosmo Jr., the parties refinanced the property by executing a mortgage note signed by both in the amount of $17,000.

Subsequently, Cosmo Jr. vacated the downstairs apartment and the parties moved downstairs and rented the upstairs apartment for $150 monthly from 1969 to 1971 when the rental became $172 monthly. Marital difficulties ensued, and petitioner separated from respondent and left the family residence on December 30, 1973. From that date to the date of the hearings, Cosmo Sr. lived in the family residence, collected the rent from the upstairs apartment, and paid the mortgage, taxes and other expenses attributable to the property.

At the hearing, petitioner admitted not making any of the mortgage, tax or insurance payments, but pursuant to a prenuptial agreement she continued working after marriage and contributed to household expenses. She testified that she received $20 weekly from the boarder which she applied to a payment on an automobile. She further stated that her take-home pay was approximately $67 weekly, and that during the early part of the marriage she received payments of $50 weekly from her husband which payments were later discontinued. She further testified that respondent placed $50 weekly in a checking account which was used to pay household bills and expenses.

The respondent testified that until May 1971, when he was forced to retire because of an eye disease, he received a gross pay of approximately $158 weekly. Thereafter he received a teamster's pension and social security disability benefits which totalled $524 per month in 1975. He admitted discontinuing the $50 weekly payments to petitioner in 1972 but stated that instead, he was making payments on a new car which he had given petitioner. He stated that he collected the rents from the upstairs apartment but used the money to pay household expenses and expenses for mortgage payments, taxes and insurance. The respondent admitted that petitioner paid for food, laundry, gas and oil for the car and her own clothing, but that he paid for his own clothing, repairs on the car and medical bills.

Doctor Dugald H. Munro, an ophthalmologist who treated Cosmo Sr., testified that respondent was suffering from retinitis pigmentosa ¹ in both eyes and in his opinion, respondent was legally blind.

The trial justice found that the parties were joint owners of the property and that adequate and sufficient consideration was given by petitioner in that she obligated herself in the sum of $17,000 when she signed the mortgage note. The trial justice also found petitioner worked all during the marriage, had pooled her earnings with respondent's earnings and other benefits, and both subsisted on the combined income. The trial justice further found that there is no necessity for the retention of the property by the parties in order to properly support or maintain either party. The trial justice thereupon granted the motion for partition and ordered the property sold and the proceeds divided equally between the parties.

On appeal, respondent presses three arguments. He first alleges that the trial justice abused his discretion in granting the motion for partition. He next argues that the trial justice erred in granting partition by sale in that the court failed to make any determination as to whether or not a division of the property by metes and bounds is practicable. Finally, he alleges that the Family Court justice abused his...