Murano v. Murano, 81-056

• Decision Date: 10 March 1982
• Docket Number: No. 81-056,81-056
• Citation: 122 N.H. 223,442 A.2d 597
• Parties: Manya MURANO v. Robert G. MURANO.
• Court: New Hampshire Supreme Court

Page 597

442 A.2d 597

122 N.H. 223

Manya MURANO v. Robert G. MURANO.

No. 81-056.

Supreme Court of New Hampshire.

March 10, 1982.

Bragdon, Berkson & Mangones, Keene (H. Neil Berkson, Keene, on the brief and orally), for plaintiff.

Joseph C. Krolikowski, P.A., Nashua (Joseph C. Krolikowski, Nashua, on the brief and orally), for defendant.

PER CURIAM.

In this marital case, both parties challenge a Superior Court (Pappagianis, J.) decree approving a Master's (Earl J. Dearborn, Esq.) recommendation for the division of their property. The defendant also argues that the master improperly permitted him to appear at trial pro se. We affirm and remand for further proceedings consistent with this decision.

The plaintiff, Manya Murano, and the defendant, Robert Murano, were married in New York City in 1964. They had one child, Adam, who was born in 1972. The parties separated at the beginning of 1974, and the plaintiff and her son went to live at the residence of the plaintiff's mother. At the time of the separation, the parties agreed to sell their jointly owned house in Garrison, New York, and to divide the proceeds of the sale equally. Although they sold the house in July 1974, the plaintiff claimed that she never received her share of the proceeds.

In September 1974, the defendant purchased real estate in Chesterfield, New Hampshire. He paid $15,000 for the property and received a deed in his own name alone. Approximately $6,600 of the purchase price came from his father. Shortly after the defendant purchased the real estate, the plaintiff, dissatisfied with living conditions at her mother's residence, asked the defendant whether she and Adam could reside at the newly purchased property. The defendant, who was not using the property, agreed, and the plaintiff and Adam moved to the Chesterfield property where they lived from 1974 until recently, when the house burned down. During this period, the parties did not resume marital relations. The defendant paid taxes on the real estate, but resided on the premises only for brief periods. Since 1975, he has lived with another woman, by whom he has had three children.

In March 1980, the plaintiff filed a libel for divorce on grounds of adultery, extreme cruelty, and irreconciliable differences causing the irremediable breakdown of their marriage. At the defendant's request, the master permitted him to appear at trial pro se. Following the trial, the master recommended a divorce based on irreconciliable differences. He ordered the parties to sell the Chesterfield property and to divide the net proceeds equally. He appointed a commissioner to supervise the sale in case either party refused to comply with the order. In addition, he recommended that the defendant pay the plaintiff thirty dollars per week as child support. The superior court entered a decree in accordance with the master's recommendations, and both parties appealed to this court.

We first address the defendant's argument that the master erred when he permitted the defendant to represent himself, without advising him of the potential consequences of appearing pro se.

The record showed that counsel represented the defendant during the period prior to the trial. On the day of the trial, the defendant made a motion to appear pro se because of financial constraints and his special interest in the case. The plaintiff's attorney objected to this motion. With the defendant present, the plaintiff's attorney explained that a pro se appearance would inject emotional elements into the litigation, and would therefore have a detrimental impact on both parties. He argued that the defendant would obtain better representation by retaining an attorney. Immediately after the plaintiff's attorney stated these concerns, the master asked the defendant whether he had heard the attorney's remarks and whether he fully understood the situation. The defendant replied in the affirmative; he stated that he assumed the liabilities of self-representation, and that his former attorney had thoroughly advised him about continuing the case pro se. As a result, he cannot validly claim that the master deprived him of effective assistance of counsel by permitting him to proceed pro se. State v. Weitzman, 121 N.H. 83, 86-87, 427 A.2d 3, 5 (1981); cf. Austin v. Ellis, 119 N.H. 741, 743, 408 A.2d 784, 785 (1979).

We now turn to the central claims of the parties.

The defendant argues that the master erred when he awarded rights in the Chesterfield property to the plaintiff. He contends that he and the plaintiff contractually agreed to a final division of their marital estate in January or February 1974, and that the plaintiff was estopped from claiming any of his assets after that date. The defendant also claims that the funds which his father provided toward the purchase price of the real estate constituted a loan, and that the master erred in failing to account for this sum. Accordingly, he argues that, in the event this court upholds the ordered sale of the property, the commissioner should repay the loan from the equity of the property, prior to dividing the proceeds.

It is well established in this jurisdiction that the trial court has broad authority and discretion with respect to the division of property upon divorce. Henderson v. Henderson, 121 N.H. ---, ---, 435 A.2d 133, 135 (1981); Buckner v. Buckner, 120 N.H. 402, 404, 415 A.2d 871, 873 (1980). The trial court may order redistribution of any property falling within the joint marital estate, or within the individual estates of either spouse. Baker v. Baker, 120 N.H. 645, 647, 421 A.2d 998, 1000 (1980); see RSA 458:19 (amended by Laws 1981, 275:1), RSA 458:22. We will not overturn a court's order for the division of property unless the court abused its discretion. Henderson v. Henderson, 121 N.H. at ---, 435 A.2d at 135; Hanson v. Hanson, 121 N.H. 719, 720, 433 A.2d 1310, 1311 (1981).

We have acknowledged numerous factors which a court may find relevant in the division of property. The assets and income of the parties constitute an important factor. Baker v. Baker, 120 N.H. at 648-49, 421 A.2d at 1001. Additionally, particularly when the parties possess meager assets, the husband's ability to support his former wife and their children must be given careful consideration. Comer v. Comer, 110 N.H. 505, 507, 272 A.2d 586, 587 (1970). Other factors include the respective contributions of the spouses in terms of services and money. Henderson v. Henderson, 121 N.H. at ---, 435 A.2d at 135; Comer v. Comer, 110 N.H. at 508, 272 A.2d at 587-88.

The parties to this controversy did not possess extensive assets; the Chesterfield property and a diamond engagement ring were their major assets. The record revealed that the defendant had failed to maintain a steady income for many years, and that serious doubts existed regarding his ability to provide future support for his ex-wife and son. The record also showed that the plaintiff had acted as homemaker and wage-earner for the parties' son from 1974 to 1981. We hold that this evidence provided the master with a sufficient basis for awarding a fifty-per-cent interest in the Chesterfield property to the plaintiff.

In addition, we find that the defendant failed to introduce sufficient evidence supporting the existence of a contract in 1974 to permanently divide the marital property. The plaintiff therefore was not estopped from asserting a claim to the Chesterfield property.

Furthermore, we reject the defendant's argument that the master should have treated his father's financial contributions as a loan. A transfer of property between family members creates a rebuttable presumption that a gift was intended. See Shelley v. Landry, 97 N.H. 27, 29, 79 A.2d 626, 628 (1951); cf. Chamberlin v. Chamberlin, 116 N.H. 368, 370-71, 359 A.2d 631, 633 (1976). In this case, the evidence showed that the defendant neither executed a promissory note nor gave a mortgage to his father. The master could properly have found that the defendant failed to rebut the presumption that his father provided the funds as a gift. Consequently, the master was not required to recommend the use of the Chesterfield sales proceeds for repayment of the contributions made by the defendant's father.

The plaintiff, like the defendant, presents numerous arguments on this appeal. She first argues that the master abused his discretion in recommending the sale of the Chesterfield property. She claims that the master should have awarded the entire property to her because of the contributions which she...