Zillert v. Zillert

• Decision Date: 29 December 1978
• Citation: 395 A.2d 1152
• Parties: William ZILLERT v. Lydia ZILLERT.
• Court: Maine Supreme Court

Page 1152

395 A.2d 1152

William ZILLERT v. Lydia ZILLERT.

Supreme Judicial Court of Maine.

Dec. 29, 1978.

Cloutier & Joyce by Edward S. David (orally), Livermore Falls, for plaintiff.

Preti, Flaherty & Beliveau by Michael Gentile (orally), Rumford, for defendant.

Before McKUSICK, C. J., and POMEROY, WERNICK, ARCHIBALD, DELAHANTY and NICHOLS, JJ.

NICHOLS, Justice.

This cause concerns the application of 19 M.R.S.A. § 722-A to the judicial disposition of property owned by the parties to a divorce. The Plaintiff, William Zillert, appeals from that part of the judgment of the Superior Court in Oxford County, which ruled that certain real estate held in joint tenancy by the parties was not "marital property" within § 722-A, and which "set apart" the parties' interests in that property by having it remain in joint tenancy. ¹

We sustain the appeal.

The Plaintiff, William Zillert, and the Defendant, Lydia Zillert, were married in New Jersey in 1959. In 1960, they moved to Maine where they took title by joint tenancy to a farm in the town of Hartford. The purchase price for the farm was $4,600.00, of which $4,000.00 came from a savings account. The record is unclear as to the ownership of the savings account, and is totally silent as to the source from which came the remaining $600.00 of the purchase price.

In 1965, Mrs. Zillert departed the marital home, and eventually returned to her native Germany. The evidence in the record tends to show that she had refused to work on the farm, because of her intense dislike of farm life and also of Maine winters. Mr. Zillert testified that she referred to the farm as "junk."

When Mrs. Zillert left, she withdrew and took with her $4,000.00 from their savings account. Again, the record is unclear as to the source of this money.

In 1976, the Plaintiff commenced this action in Maine District Court, District Eleven (Rumford), seeking a divorce upon the alternative grounds of cruel and abusive treatment and utter desertion. His complaint averred that there was marital property for disposition in accordance with 19 M.R.S.A. § 722-A. The Defendant's answer, which denied the allegations of the existence of grounds for divorce, did not respond to the allegation of marital property.

After a hearing, the District Court granted the Plaintiff a divorce upon the ground of desertion. See 19 M.R.S.A. § 691. The District Court either impliedly found, or assumed, in the absence of any suggestion to the contrary, that the farm was marital property. It divided the property by awarding the Plaintiff his own undivided one-half interest, plus one-third of the Defendant's interest. The effect of this award was to give Mr. Zillert a two-thirds interest in the farm, and Mrs. Zillert a one-third interest therein.

Dissatisfied with this disposition of the property, the Plaintiff appealed to Superior Court from that part of the judgment.

In Superior Court the presiding justice concluded, apparently Sua sponte, that the farm was Not marital property. He ruled that the separate shares of each party was to be "set off" by remaining in joint tenancy. He therefore remanded to District Court for entry of a specific judgment reflecting those rulings. The Plaintiff then appealed to this Court. ²

We hold that the court below erred in its disposition of the farm property. ³

Judicial disposition of property upon divorce is governed by 19 M.R.S.A. § 722-A which, at the time in question, provided in pertinent part as follows:

1. Disposition. In a proceeding: (a) for a divorce, . . . the court shall set apart to each spouse his property and shall divide the marital property in such proportions as the court deems just after considering all relevant factors including:

A. The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;

B. The value of the property set apart to each spouse; and

C. The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children.

2. Definition. For purposes of this section only, "marital property" means all property acquired by either spouse subsequent to the marriage except:

A. Property acquired by gift, bequest, devise or descent;

B. Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise or descent;

C. Property acquired by a spouse after a decree of legal separation;

D. Property excluded by valid agreement of the parties; and

E. The increase in value of property acquired prior to the marriage.

3. Acquired subsequent to marriage. All property acquired by either spouse subsequent to the marriage and prior to a decree of legal separation is presumed to be marital property regardless of whether title is held individually or by the spouses in some form of co-ownership such as joint tenancy, tenancy in common, tenancy by the entirety, and community property. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection 2.

This statute is based on section 307 of the 1970 version of the Uniform Marriage and Divorce Act, 9 Uniform Laws Annotated at 490-492 (Master Ed. 1973). ⁴ The 1970 Uniform Act was an attempt to revise the entire conceptual structure of divorce based on fault, and this approach was extended to the Act's treatment of property division. Prefatory Note to Uniform Marriage and Divorce Act, 1970 Handbook of the National Conference of Commissioners on Uniform State Laws at 176-178.

Apparently, the fact that misconduct could not be considered in the division of property influenced the A.B.A. House of Delegates to disapprove the Uniform Act in 1972. See Conrad v. Bowers, 533 S.W.2d 614, 620 (Mo.App.1975). A new version of the Act was subsequently promulgated by the Commissioners in 1973.

In 1971, the Legislature enacted, in § 722-A, a modified version of that section. P.L. 1971, c. 399, § 2, eff. Jan. 1, 1972. The significant difference between § 722-A and the Uniform Act is that the Legislature deleted the language "without regard to marital misconduct" with reference to the division of marital property.

The mechanics of setting apart non-marital property and dividing marital property remained intact. They are explained in the Commissioners' Note to § 307, 9 Uniform Laws Annotated at 492:

. . . (T)he court is directed first to set apart to each spouse all of his or her property that is not defined as marital property by subsection (b), and secondly to divide the marital property between the parties in accord with the standards established by the section. The court may divide the property equally or unequally between the parties . . ..

Subsection (b) defines marital property only for the purposes of division on dissolution of marriage . . . No attempt is made to regulate the respective interests of the spouses in property during the existence of the marriage.

Subsection (c) creates a presumption that all property acquired after marriage and prior to a decree of legal separation is marital property. In the absence of contrary evidence this presumption will be controlling, regardless of the manner in which title is held by the spouse. A spouse seeking to overcome the presumption has the burden of proof on the issue of identification. . . .

Application of those principles to the case at bar is relatively straightforward. The real estate in question was purchased by the parties in 1960, after their 1959 marriage. This fact gives rise to the presumption that the farm was marital property. Since there is no evidence in the record to support a finding that the farm fell within any of the exceptions of subsection 2, the presumption that the farm is marital property must be given full effect. See M.R.Evid. 301(a).

In Young v. Young, Me., 329 A.2d 386 (1974), upon which the Superior Court relied, the parties were able to trace on the record the source of funds used to purchase the property in question. That circumstance distinguishes Young from the case at bar. We conclude that the Zillerts' farm was marital property, and, indeed, neither party has challenged that conclusion on appeal.

We move on to the next question, which is the one upon which the parties focused their attention upon appeal: Were the two-thirds/one-third proportions found by the District Court a just division of this property?

If we were to remand this cause to the Superior Court for consideration of that question, a new justice would have to review the record of the evidence before the District Court because death has taken from us the justice who presided when this cause was last before the Superior Court. As a matter of judicial economy, we have reviewed the record made in District Court, and we conclude that the decision of the District Court to divide the Zillert farm in those proportions was not an abuse of its discretion. Fournier v. Fournier, Me., 376 A.2d 100, 103 (1977).

We are thus brought to a question novel in Maine. When our legislature enacted Section 722-A, which follows the language of Section 307 of the Uniform Act and directs that the court "shall divide" the marital property, did it thereby confer upon the District Court (as well as upon the Superior Court when a proceeding for divorce is there commenced) the power to accomplish this division, in its discretion, by sale or partition of the real estate?

In certain other states which, since promulgation of the Uniform Act, have adopted substantially similar statutes relating to marital property, we find precedent for so construing this statutory language, "shall divide," as to authorize the court hearing the divorce to complete the task with respect to the real estate.

In Colorado, where the pertinent statute also uses the word "divide"...