Rissberger v. Gorton

• Decision Date: 02 July 1979
• Docket Number: No. 77-1256,77-1256
• Citation: 597 P.2d 366,41 Or.App. 65
• Parties: Nancy Ann RISSBERGER, Respondent, v. Clifford Lonnie GORTON, Appellant. ; CA 11488.
• Court: Oregon Court of Appeals

Page 366

597 P.2d 366

41 Or.App. 65

Nancy Ann RISSBERGER, Respondent, v. Clifford Lonnie GORTON, Appellant.

No. 77-1256; CA 11488.

Court of Appeals of Oregon.

Argued and Submitted March 26, 1979.

Resubmitted In Banc Without Oral Argument June 26, 1979.

Decided July 2, 1979.

John A. Hudson, Eugene, argued the cause for appellant. With him on the brief was Curtis, Hendershott, Strickland & Hudson, Eugene.

Scott M. Galenbeck, Springfield, argued the cause for respondent. With him on the brief was Lively & Wiswall, Springfield.

Before SCHWAB, C. J., and LEE, BUTTLER and JOSEPH, JJ.

JOSEPH, Judge.

Plaintiff brought this suit for a declaration that she and defendant are joint and equal owners of certain real and personal property acquired while they were living together. The trial court entered a decree for plaintiff. Defendant appeals. Both parties concede that the matter as pleaded is equitable. ¹

The parties first moved in together in the summer of 1969, when defendant was 21 and plaintiff 18. They lived together again the following summer; but each fall when they returned to college, they lived in separate apartments. In 1971 they cohabited throughout the summer and until November, when they separated and began dating other people. In February or March, 1972, they resumed cohabitation and lived together until February, 1977.

During the period of separation in 1971-72, defendant looked for a duplex to buy. Around the time he and plaintiff reconciled, he found one. She testified that he gave her a copy of the listing on the property and talked with her about it. He denied that. On March 29, after they had begun living together again, he signed an earnest money agreement on the property in his own name. The duplex was purchased on a contract, in which he was named as the buyer. Plaintiff was not involved in the closing. The title, which was placed in escrow, was in defendant's name alone. Plaintiff claimed she did not realize until after the closing that title would be taken that way. The purchase price was $23,750. The down payment of $2,962 was paid from separate funds defendant had received as disability compensation.

The parties moved into one-half of the duplex, where they lived until the end of their relationship. The other half was rented. During that period, both parties worked off and on; he was unemployed or disabled at various times and she missed substantial periods of work for medical reasons and to have a baby. (The child was born in 1973; defendant admitted paternity and agreed to help support the child.) During the cohabitation, defendant's total income seems to have been approximately twice that of plaintiff. ² They maintained joint checking and savings accounts, from which "household" expenses were paid. It is not clear how much of their respective incomes the parties put in the joint accounts. There was evidence that for a time he maintained a separate account for property taxes, and she kept a separate "travel" account. The monthly payments on the duplex, with the exception of the first two, were paid from the joint checking account, and the rental payments made by the occupants of the other half of the duplex were also deposited in that account.

During their cohabitation, the parties also accumulated personal property, including automobiles and a motorcycle, furniture, appliances, tools, a handgun and other items. Defendant's name only was on the title to the automobiles. The circumstances under which most items of non-household personal property were purchased and the manner of payment was not brought out at trial. ³ Some items were gifts from the parties' parents.

At various times during the 1972-77 period of cohabitation, plaintiff testified, she requested that defendant put her name on various titles, including the title to the duplex. He always refused. She also asked him several times to marry her, but he would not. He testified that he wished to avoid "the kinds of problems that would be incurred in a divorce suit if I married her." Nevertheless, she was hospitalized as Nancy Gorton on one occasion and the expenses were paid by his health insurer. She claimed that he told her that in case he died, all his property would go to her and the child.

In 1975, defendant mortgaged the duplex. He paid off the purchase contract and received approximately $8,000 net, of which he invested $4,000 in a business partnership. The remaining $4,000 was apparently applied on the mortgage or taxes on the duplex. In February, 1977, the parties separated. Defendant remained in the duplex which at the time of trial was valued at about $50,000 and retained most of the personal property the parties had accumulated. He claimed that plaintiff owned no interest in any of it.

The trial court found that

"(p)laintiff has an interest in the (duplex) and the personal property acquired by the parties during the period of the living together from February, 1972 to February, 1977. This interest arises out of an implied agreement of partnership."

The court ordered the duplex sold and the proceeds distributed as follows: (1) $2,962, the amount of the down payment, to defendant together with interest from the date the property was purchased; (2) one-half the amount defendant borrowed on the property to plaintiff, with interest from the date of the refinancing; (3) $3,000 to plaintiff's parents, plus interest, from the date they paid the judgment taken against them as co-signers on the loan for the automobile originally purchased by plaintiff and later, according to plaintiff, signed over to defendant; and (4) the remaining proceeds in equal shares to plaintiff and defendant. The court ordered $3,750 deducted from defendant's share of the proceeds and paid to plaintiff in lieu of distribution of her share of the personal property. Defendant requested such a cash settlement provision, and plaintiff did not object.

We review De novo. We note, however, that nothing in the record discloses the plaintiff's theory beyond the assertion of unjust enrichment. ⁴ The case was decided on the basis of an implied partnership agreement, and that is the only theory urged by plaintiff in this court.

Some courts faced with the problem of dividing the assets acquired by parties during unmarried cohabitation have found an implied partnership agreement. In re Estate of Thornton, 81 Wash.2d 72, 499 P.2d 864 (1972); See Folberg and Buren, Domestic Partnership : A Proposal for Dividing the Property of Unmarried Families, 12 Will L J 453 (1976). In Beal v. Beal, 282 Or. 115, 577 P.2d 507 (1978), the leading Oregon case on the division of property between unmarried couples, the court noted the application of implied partnership agreements and other approaches by various courts. The court in Beal stated the law as follows:

"We believe a division of property accumulated during a period of cohabitation must be begun by inquiring into the intent of the parties, and if an intent can be found, it should control that property distribution. While this is obviously true when the parties have executed a written agreement, it is just as true if there is no written agreement. The difference is often only the sophistication of the parties. Thus, absent an express agreement, courts should closely examine the facts in evidence to determine what the parties implicitly agreed upon.

" * * * "More often than not, such an inquiry will produce convincing evidence of an intended division of property, but we recognize that occasionally the record will leave doubt as to the intent of the parties. In such cases, inferences can be drawn from factual settings in which the parties lived. Cohabitation itself can be relevant evidence of an agreement to share incomes during continued cohabitation. Additionally, joint acts of a financial nature can give rise to an inference that the parties intended to share equally. Such acts might include a joint checking account, a joint savings account, or joint purchases." 282 Or. at 122, 577 P.2d at 510.

We conclude the record supports a finding of an implied intent to share equally in the household items, but does not support a finding of a mutual intent to share any interest in the duplex, the automobiles and motorcycle, or any other non-household item for which defendant paid with his own separate funds. There is no evidence of any expression by either party of an intention with respect to their relative interests in the household goods. The use of joint checking and savings accounts to purchase household items, the cohabitation itself and the conception and birth of the child, however, are persuasive evidence of an intent to share equally in household items, whether purchased from a joint account or given to the parties while cohabiting. Beal v. Beal, Supra. There was no evidence that defendant had a contrary intent until the parties separated.

On the other hand there were clear and repeated declarations, albeit by defendant unilaterally, but acknowledged by plaintiff on trial, of an intention with respect to the duplex and other personal property. He asserted throughout the relationship that he considered himself sole owner of those items. Plaintiff's repeated requests to be included in the title to various items were always refused, as were her suggestions of marriage. Defendant may have told plaintiff she would have an interest in case of his death, but there was no evidence that he led her to believe she had any interest in those items during his lifetime. Despite the joint accounts, the cohabitation and the child, the record does not support a finding of any agreement, I. e., a mutual intention, to share the other property.

Defendant argues that the trial court erred in awarding some of the proceeds of the sale of the duplex to plaintiff's parents, who were not parties to this proceeding, because of their having paid off the loan on a car. We agree that no award could properly be made to the...