Stephan v. Lynch
| Decision Date | 06 June 1978 |
| Docket Number | No. 208-77,208-77 |
| Citation | 388 A.2d 376,136 Vt. 226 |
| Parties | Marie E. STEPHAN v. Joseph B. LYNCH. |
| Court | Vermont Supreme Court |
John J. Zawistoski and Allan R. Keyes of Ryan, Smith & Carbine, Ltd., Rutland, for plaintiff.
Stephen L. Klein, Rutland, for defendant.
Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.
This is a dispute between a mother and her son, her only child. It was her claim below that he took advantage of her generosity in purchasing a home with her own assets and putting it in their joint names, by driving her out of it and taking possession of the premises. The lower court found in her favor, and the matter is on appeal here by the son.
The situation is best understood by examining the family history as reported in the findings. The plaintiff is twice a widow, and the defendant son is the child of her first marriage. Both parties lived in New Jersey in the sixties. In 1964 the plaintiff purchased, from funds entirely her own, a house in Plainfield, New Jersey. Her son was then married and had his own home. In 1966 the defendant persuaded his mother to put her home in their joint names to avoid having to go through the probate procedure in the event of death. Her bank accounts, although also entirely her own funds, were similarly joint. Sometime in the early 1970's the defendant and his then wife were divorced. The defendant got custody of his four children and, through purchase, became sole owner of his home. A few years later he was offered a transfer to the Rutland office of his employer. He advised his mother that he would have to reject the transfer unless one of the houses was sold.
As a result plaintiff sold her home and advanced her son moving expenses to come to Vermont in 1974. A home was purchased in Vermont from money belonging to the plaintiff and placed in their joint names, with the same understanding that it was for probate purposes, with no present interest or control in the defendant until her decease. Her bank accounts were transferred as joint accounts to Rutland banks on the same basis. There was a mortgage on the new home, and plaintiff has seen to most of those payments as well as the tax obligations. The defendant has not made any deposits in the bank accounts at any material time.
A year later, in 1975, the defendant brought a young woman and her small child to live with him in the house. The plaintiff objected strenuously and the defendant first agreed to move, then refused. He and the girl are now married and have a child of their own.
The defendant took the position that he had an equal interest in her assets, including the house and bank accounts. The household, now consisting of three adults and six children, became a place of controversy. Because of the threats, ridicule and harassment, the plaintiff became fearful and distressed. Finally, on advice of her physician, the plaintiff moved to Christ the King Convent in Rutland. The trial court found this to be an involuntary ouster from her home.
The defendant told her to move her personal effects and furniture from the house, which she did at her own expense. She has now removed her son's name from the bank accounts. This removal was the basis of a pleading advanced as a counterclaim in the nature of set-off seeking recovery of half of the money represented by the accounts.
In deciding in favor of the plaintiff and awarding damages, the trial court took into account money paid by the defendant for certain insurance premiums, taxes, plumbing repairs, closing costs and mortgage payments. The plaintiff was awarded the house, with an option in the defendant to buy the same for a sum certain. That option has now, by its terms, expired. The plaintiff was awarded compensatory damages for an assault on her by the defendant, reimbursement for money advanced to or spent on behalf of the defendant, rental expenses for the time of her absence from the home, and clear title to the bank accounts.
The defendant, as appellant, challenges the propriety of the trial court's judgment order on five grounds. The first seeks judgment on the counterclaim based on a claimed failure to respond in the pleadings. There is no doubt but that allegations in a counterclaim well pleaded may be taken as admitted if no answer is filed. The defendant is confronted with two obstacles to the result he seeks. First, the rule whose benefits he seeks, V.R.C.P. 12(a), requiring an answer within 20 days after service, relates to a counterclaim in the answer. The answer filed contained no counterclaim. More to the point is the fact that the pleadings in this case began with a complaint in August of 1975 and closed, after some seventeen pleadings, with the filing of an answer on July 21, 1976, and an amended answer on July 29, 1976. The first answer had been filed pro se by the defendant in September...
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...v. Sieben, 231 Kan. 372, 378, 646 P.2d 1036, 1041 (1982); Melendres v. Soales, 105 Mich.App. 73, 306 N.W.2d 399 (1981); Stephan v. Lynch, 136 Vt. 226, 388 A.2d 376 (1978); Schulze v. Kleeber, 10 Wis.2d 540, 103 N.W.2d 560 (1960); see also Uniform Comparative Fault Act § 1 Comment, 12 U.L.A.......
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Brousseau v. Brousseau
...property must be determined by an analysis of the facts supporting the establishment of these two elements. See Stephan v. Lynch, 136 Vt. 226, 229, 388 A.2d 376, 378 (1978) (finding that son failed to prove inter vivos gift despite title in joint tenancy); see also In re Schlacter's Will, 3......
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