Whippie v. O'connor

• Citation: 996 A.2d 1154,2010 VT 32
• Decision Date: 16 April 2010
• Docket Number: No. 07-473.,07-473.
• Parties: Debra L. WHIPPIEv.Robert E. O'CONNOR.
• Court: United States State Supreme Court of Vermont

996 A.2d 1154
2010 VT 32

Debra L. WHIPPIE
v.
Robert E. O'CONNOR.

No. 07-473.

Supreme Court of Vermont.

April 16, 2010.

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Karen L. Richards and Jean L. Murray, Vermont Legal Aid, Inc., Montpelier, for Plaintiff-Appellee.

Robert E. O'Connor, Jr., Pro Se, South Londonderry, Defendant-Appellant.

Present: DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ., and VAN BENTHUYSEN, Supr. J., Specially Assigned.

¶ 1. BURGESS, J.

Defendant appeals from a partition judgment in which the trial court awarded defendant the option of purchasing plaintiff's share in certain real property, or in the alternative, if defendant did not exercise the option, ordered the property to be sold and proceeds divided according to a court-ordered percentage plan. Defendant claims on appeal: (1) that the court's findings are not supported by the evidence; (2) that the court, in determining the equities, was swayed by irrelevant sympathy for plaintiff; and (3) that the court failed to consider available evidence that plaintiff was not entitled to any share at all. Defendant also claims that the court conducted an accounting in this action that included arithmetic errors and factors outside the scope of partition, while excluding costs defendant claims he

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is owed. Finally, defendant takes exception to the court's allowing plaintiff an offset for rental value against defendant's contribution claims due to his exclusion of plaintiff from the residence.¹ We affirm as to defendant's first three claims and reverse and remand on the remaining claims. In light of the rules we recently announced in Massey v. Hrostek, 2009 VT 70, 186 Vt. 211, 980 A.2d 768, and our holdings here, we conclude that it is necessary for the trial court to conduct a new accounting, to consider whether plaintiff's ouster was wrongful and, if so, its duration and how it figures within the overall equities of the partition. On remand, we suggest defendant may also request a ruling on defendant's claim for partial appraisal costs.I. Background

¶ 2. Plaintiff and defendant purchased a single-family residence together in 2002. They had been involved in an unmarried relationship for ten years, living together for nine of those years, and had two children together. Initially, defendant sought to purchase a home in his name only, but he could not qualify for the loan on his own. Plaintiff joined in the financing application, and together the parties were able to obtain the two mortgage loans needed to purchase the property. Both parties are listed as borrowers on both mortgages, and both parties' names are on the deed.²

¶ 3. The parties testified, and the trial court found, that there was an express agreement between them to share the expenses of the property equally. During their years of cohabiting in rental properties, the parties shared household expenses by paying utility bills and rent from a joint checking account. Under their arrangement, each party contributed half of the amount owed on their bills to a joint account, and plaintiff wrote the checks to pay the bills. When they were moving to their new home, defendant discovered that the utilities would not start services due to unpaid bills from the parties' rental residence. Defendant had been placing funds in the joint account for that purpose and was unaware of any overdue utility bills before this time. To pay the overdue balances and initiate utility services at the new property, defendant borrowed between one and two thousand dollars from relatives. To avoid delinquencies with the mortgage payments, defendant began directly paying the mortgage from his own separate account. At a later point, defendant again discovered unpaid bills, and sometime in 2003, again borrowed money from his family to pay overdue household bills.

¶ 4. The parties resided at the property with their children for about two years

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before their relationship ended. During this time, defendant undertook several projects at the property, including installing a new kitchen floor, replacing the deck, painting the house, installing a new hot water heater, and replacing some doors. The trial court found that the terms of one of the mortgages required some of these projects, and that defendant did the work himself, paying only for supplies at a cost of less than $2000. The parties disputed whether plaintiff paid any expenses for the property while the parties were living there together. The court found that plaintiff paid for at least some household costs during 2002, but, consistent with plaintiff's admissions at trial, the court found that plaintiff stopped paying any of her share of the household costs in early 2003. During 2003 and the years following, plaintiff used her income to cover her personal needs and credit card debt, as well as to purchase clothes for the children.

¶ 5. The parties stopped living together in early 2004. Possession of the property from that time until nine months after plaintiff initiated this action was governed by court orders in two separate family-court matters between the parties. The first matter, which ended the parties' cohabitation, began when plaintiff filed for relief from abuse (RFA) against defendant in January 2004 and was awarded a temporary RFA order, granting her possession of the property. Shortly after plaintiff filed for the RFA order, defendant initiated the second family-court matter-an action for parental rights and responsibilities. In March 2004, the family court issued a final RFA order, by agreement and without findings, that incorporated the terms of a temporary order for parental rights and responsibilities awarding defendant temporary custody of the children and possession of the home. The final RFA order expired in August 2004.

¶ 6. The trial court found that plaintiff asked defendant if she could return to the home several times during the period when he had possession of the property. Defendant refused and, at some point after the RFA order expired, defendant issued a “no trespass” letter to plaintiff because he believed she had been entering the property and taking his things. When plaintiff initiated this partition action in January 2005, defendant and the children were still residing at the property, and plaintiff was living elsewhere, per the temporary parental rights and responsibilities order still in effect at that time. It appears that the parties have maintained these living arrangements to the present.

¶ 7. After a failed attempt to settle this matter through mediation, a trial was held at which plaintiff and defendant were the only witnesses. In addition to their testimony, plaintiff offered into evidence copies of the mortgages, a copy of the deed, a copy of the 2007 tax bill for the property, statements of payments on the mortgages, a 2006 appraisal of the property prepared for this litigation, a copy of the final RFA order, and some information concerning rental values for Bennington County. Defendant stipulated to the admission of all but the rental information and, according to the record, offered no additional evidence.

¶ 8. In its order, the trial court weighed many of the above facts as equitable considerations in favor of each party. The court weighed in plaintiff's favor the fact that the property could not have been purchased by defendant alone and that the parties were able to obtain the mortgages only through plaintiff's joint application. Additionally, the court found that defendant acquiesced to some of plaintiff's failures to pay property expenses and that when plaintiff stopped those payments she

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nonetheless helped with family expenses by purchasing clothes for the children. The court also counted in plaintiff's favor the children's Supplemental Security Income (SSI) based on plaintiff's disability, concluding that it was a benefit to defendant in defraying household costs. On defendant's side, the court concluded that the parties had not shared equally in paying property expenses, although defendant's payments were not as “one-sided” as he claimed and defendant had acquiesced in part to plaintiff's lesser contributions. The court made an explicit finding that it was defendant who had paid the full $47,000 due for mortgage and tax payments on the property from the date of purchase to the date of trial.

¶ 9. In addition to these findings and equitable considerations, the court rejected two of plaintiff's legal arguments. First, plaintiff argued that Vermont law required the court to presume that, because the parties were cotenants, all of defendant's property-related payments were made on behalf of plaintiff. Without decisively concluding whether payments defendant made before plaintiff sought the RFA order were made on her behalf, the court held that the payments defendant made after that point were not. The second argument declined by the trial court was that defendant ousted plaintiff from the property at the point when the final RFA order granted possession to defendant, and that any credit claimed by defendant for the property expenses paid since the RFA order should be offset by the fair rental value of the property from the time of plaintiff's exclusion. The court refused to find an ouster when the RFA order was in effect, and plaintiff does not appeal from that ruling. Nevertheless, the court did conclude there was “an element of ouster,” after the RFA expired, when defendant refused plaintiff's requests to move back into the house and issued her a notice against trespass.

¶ 10. After considering all of these factors, the court determined that the totality of the circumstances favored granting plaintiff $15,216 of the property's equity. This figure represented forty percent of one-half of the $46,081 equity in the home, plus $6000. The court granted plaintiff only forty percent of half of the equity to reflect “her two years of...