Olivas v. Olivas

• Decision Date: 01 August 1989
• Docket Number: No. 10260,10260
• Citation: 108 N.M. 814,1989 NMCA 64,780 P.2d 640
• Parties: Carolina OLIVAS, Petitioner-Appellee, v. Sam OLIVAS, Respondent-Appellant.
• Court: Court of Appeals of New Mexico

Page 640

780 P.2d 640

108 N.M. 814

Carolina OLIVAS, Petitioner-Appellee, v. Sam OLIVAS, Respondent-Appellant.

No. 10260.

Court of Appeals of New Mexico.

Aug. 1, 1989.

[108 N.M. 815] Nancy Ann Meuchel, Sapello, for respondent-appellant.

[108 N.M. 816] Eugenio S. Mathis, Las Vegas, for petitioner-appellee.

OPINION

HARTZ, Judge.

Respondent Sam Olivas (husband) appeals the property division in a divorce action. Petitioner Carolina Olivas (wife) and husband were divorced by a partial decree entered December 18, 1984. The district court did not enter its final order dividing property until August 31, 1987. The issues in this appeal arise, for the most part, as a consequence of the unusually lengthy delay between the divorce decree and the property division.

Husband appeals the rejection of his claims to the following items in the property division: (1) compensation for his alleged constructive ouster from the community residence; (2) compensation for his alleged payment of community debts out of his separate funds; (3) the value of his share of allegedly missing community property for which wife was responsible; (4) his share of rent allegedly received by wife for use of community property; (5) his share of an amount owed by wife to the community for an increase in the value of her separate property created by efforts of the community; and (6) the value of allegedly missing separate property of his for which wife was responsible. We affirm.

1. CONSTRUCTIVE OUSTER

Husband and wife separated in June 1983, about two months before wife filed her petition for dissolution of marriage. The district court found that husband "chose to move out of the family home, and he then maintained another home where he also had his office for his business." Husband contends that the district court erred in failing to find that he had been constructively ousted from the family home. He requested findings and conclusions that the constructive ouster by his wife entitled him to half of the reasonable rental value of the home from the time of the initial separation.

Husband and wife held the family home as community property during the marriage and as tenants in common after dissolution. See Phillips v. Wellborn, 89 N.M. 340, 552 P.2d 471 (1976); Hickson v. Herrmann, 77 N.M. 683, 427 P.2d 36 (1967). Although wife was the exclusive occupant of the house after the separation, ordinarily a cotenant incurs no obligation to fellow cotenants by being the exclusive occupant of the premises.

"[I]t is a well-settled principle of the common law that the mere occupation by a tenant of the entire estate does not render him liable to his co-tenant for the use and occupation of any part of the common property. The reason is easily found. The right of each to occupy the premises is one of the incidents of a tenancy in common. Neither tenant can lawfully exclude the other. The occupation of one, so long as he does not exclude the other, is but the exercise of a legal right. If, for any reason, one does not choose to assert the right of common enjoyment, the other is not obliged to stay out; and if the sole occupation of one could render him liable therefor to the other, his legal right to the occupation would be dependent upon the caprice or indolence of his co-tenant, and this the law would not tolerate."

Williams v. Sinclair Refining Co., 39 N.M. 388, 392, 47 P.2d 910, 912 (1935) (quoting Hamby v. Wall, 48 Ark. 135, 137, 2 S.W. 705, 706 (1887)).

The result is otherwise, however, when the occupant has ousted the other cotenants. See Chance v. Kitchell, 99 N.M. 443, 659 P.2d 895 (1983). Although the term "ouster" suggests an affirmative physical act, even a reprehensible act, the obligation of the occupying cotenant to pay rent may arise in the absence of "actual" ouster when the realities of the situation, without there being any fault by either cotenant, prevent the cotenants from sharing occupancy. 4 G. Thompson, Real Property Section 1805, at 189 (J. Grimes Repl.1979), states:

[B]efore a tenant in common can be liable to his cotenants for rent for the use and occupation of the common property, his occupancy must be such as amounts to a denial of the right of his cotenants to occupy the premises jointly with him, or the character of the property must be such as to make such joint occupancy impossible or impracticable. [Emphasis added.]

We believe that it was this latter type of situation--an "ouster" in effect, without any physical act and perhaps without any fault--to which the New Mexico Supreme Court was referring when it recognized the doctrine of "constructive ouster" in the marital context in Hertz v. Hertz, 99 N.M. 320, 657 P.2d 1169 (1983). The court wrote:

[I]f one of the parties in a divorce case remains in possession of the community residence between the date of the divorce and the date of the final judgment dividing the community assets, then there may be a form of constructive ouster, exclusion, or an equivalent act which is created as to the right of common enjoyment by the divorced spouse not in possession. See Sec. 42-4-8, N.M.S.A.1978. This exclusion may render the divorced spouse in possession of the community residence liable to the divorced spouse not in possession for the use and occupation of the residence between the date of the divorce and the date of the final judgment. See Sec. 42-4-9, N.M.S.A.1978. To hold otherwise would mean that both divorced spouses should have continued to live with each other during the eighteen month interim or that both should have abandoned the property. [Emphasis added.]

Id. at 330, 657 P.2d at 1179.

Applying the notion of constructive ouster in the marital context is simply another way of saying that when the emotions of a divorce make it impossible for spouses to continue to share the marital residence pending a property division, the spouse who--often through mutual agreement--therefore departs the residence may be entitled to rent from the remaining spouse. Although one can say that the departing spouse has been constructively "ousted," the term should not suggest physical misconduct, or any fault whatsoever, on the part of the remaining spouse.

Common law precedents support the proposition that the remaining spouse should pay rent to the cotenant when both cannot be expected to live together on the property. For example, when it is impractical for all cotenants to occupy the premises jointly, it is unnecessary that those claiming rent from the cotenant in possession first demand the right to move in and occupy the premises. See Oechsner v. Courcier, 155 S.W.2d 963 (Tex.Civ.App.1941) (applying that principle when five heirs, with separate families totalling twenty-two members, were cotenants of a five-room cottage being occupied by one of the families); Annotation, Accountability of Cotenants for Rents and Profits or Use and Occupation, 51 A.L.R.2d 388, Sec. 15 (1957). The impracticality of joint occupancy by the cotenants may result from the relations between the cotenants becoming "so strained and bitter that they could not continue to reside together in peace and concord." Maxwell v. Eckert, 109 A. 730, 731 (N.J.Eq.1920). See Finley v. Keene, 136 N.J.Eq. 347, 42 A.2d 208 (1945); In re Marriage of Maxfield, 47 Wash.App. 699, 737 P.2d 671 (1987). If, however, hostility flows only from the cotenant out of possession, ordinarily there would be no constructive ouster. See O'Connell v. O'Connell, 93 N.J.Eq. 603, 117 A. 634 (1922) (wife left home and refused to return despite solicitation by husband). In that circumstance the departing spouse has "abandoned" his or her interest in possession, rather than being excluded. See 4 G. Thompson, supra, Sec. 1805, at 192 (possessing cotenant not liable for his use and occupancy when other cotenant has abandoned property). Cf. Elsner v. Elsner, 425 S.W.2d 254 (Mo.Ct.App.1967) (wife not required to pay rent to absent husband; husband apparently voluntarily abandoned home).

One jurisdiction has gone so far as to create a rebuttable presumption of ouster of the spouse who moves out of the former marital residence upon divorce. See Stylianopoulos v. Stylianopoulos, 17 Mass.App. 64, 455 N.E.2d 477 (1983). Cf. In re Marriage of Watts, 171 Cal.App.3d 366, 217 Cal.Rptr. 301 (1985) (court may order husband to reimburse community for exclusive use of residence after separation); Palmer v. Protrka, 257 Or. 23, 476 P.2d 185, 190 (1970) (En Banc) (when marital difficulties make co-occupancy impossible, requiring occupant to pay one-half of rental value seems closest to parties' intentions when they took title); but cf. Kahnovsky v. Kahnovsky, 67 R.I. 208, 21 A.2d 569 (1941) (finding no ouster although "separation was the result of marital difference"); Barrow v. Barrow, 527 So.2d 1373 (Fla.1988) (ex-spouses who own residence as co-tenants after final property distribution are treated just as any other co-tenants). We note that a comparable result has been achieved in New Mexico's Second Judicial District Court through unpublished Interim Guidelines adopted in December 1984, which provide that, in the absence of a contrary order or agreement of the parties, the parties will share the costs of maintaining the households for both parties during the pendency of the divorce proceeding.

Husband had the burden of proving constructive ouster in this case. Therefore, we must sustain the district court's ruling against husband unless the evidence at trial was such as to compel the district court to find ouster. Although the evidence of hostility between the spouses may have sustained a finding by the district court of constructive ouster, there was substantial evidence to support the inference that husband's purpose in leaving the community residence was to live with a girl friend and his departure was the reason wife filed for divorce; he was not pushed out but pulled. Even if husband was entitled to a presumption of ouster (an issue we need not reach)...