Wilk v. Wilk

Wilk v. Wilk (2000-316); 173 Vt. 343; 795 A.2d 1191

[Filed 22-Feb-2002]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal  revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of  Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any  errors in order that corrections may be made before this opinion goes
  to press.


                                No. 2000-316


John F. Wilk	                       Supreme Court

                                       On Appeal from
     v.	                               Rutland Superior Court


Joseph P. Wilk 	                       March Term, 2001 



David A. Jenkins, J.

Arthur E. Crowley, Jr., Rutland, for Plaintiff-Appellee.

Richard S. Bloomer, Rutland, for Defendant-Appellant.


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.


       MORSE, J.    Defendant Joseph P. Wilk appeals the decision of the
  superior court in this  action for partition ordering him to transfer his
  one-eighth interest in a parcel of property located in  the Town of West
  Rutland to Plaintiff John F. Wilk in exchange for one eighth of the fair
  market  value of the parcel as determined by a panel of court-appointed
  commissioners.  Defendant argues  that the court erred by failing to order
  a public sale of the property and a subsequent dispersal of the  proceeds
  to himself and plaintiff.  He contends that the facts of this case are
  controlled by our  holding in Billings v. Billings, 114 Vt. 512, 49 A.2d 179 (1946), and that Billings mandates such 

 

  an outcome.  We take this opportunity to overrule Billings and its progeny
  and affirm the trial court's  ruling.

       The property at issue is a one-acre parcel of land with a house,
  commercial garage and office  located on it.  Plaintiff has operated a
  paving business out of the buildings on the property, and  defendant -
  plaintiff's brother - operates a junk yard on an adjoining parcel of land. 
  In May 1997,  both parties acquired a one-eighth interest in the property
  by inheritance from their mother, as did  their six siblings.  Plaintiff
  subsequently purchased the interests of his six siblings, subject to a life 
  estate held by one of his sisters, and filed this partition action in the
  superior court.  The court  appointed three commissioners who prepared a
  report and submitted it to the court.  The  commissioners concluded that
  the parcel could not reasonably be divided between plaintiff and  defendant
  and that the fair-market value of the property was $125,000.  Both parties
  sought an order  from the court conveying the other's interest in exchange
  for the value of the respective shares in the  property.  Following a
  hearing on the merits, the court concluded that the equities favored
  plaintiff  and ordered defendant to convey his one-eighth interest in the
  property in exchange for $15,625 (one  eighth of $125,000).

       Defendant argues that the facts of this case are controlled by our
  holding in Billings v.  Billings, 114 Vt. 512, 49 A.2d 179 (1946) and that
  the trial court was bound to order a public sale of  the contested parcel. 
  In Billings, this Court split three-to-two over the interpretation of the
  statutory  scheme governing partition.  The language at issue was identical
  to that of the statutes in effect  today.  Compare id. at 514, 49 A.2d  at
  181, with 12 V.S.A. §§ 5174-75.  The majority in Billings  concluded that,
  when two parties own equal shares in a piece of property and both wish to
  take  assignment of the other's share, the statutory scheme requires public
  sale of the property.  

 

  Billings, 114 Vt. at 517, 49 A.2d  at 182.  Although this case involves two
  parties owning unequal  shares in a property, because the facts are
  sufficiently analogous and the Court made no distinction in  its
  interpretation of the statutory scheme between multiple parties with equal
  shares and multiple  parties with unequal shares willing to take
  assignment, Billings would control.  For reasons  explained below, however,
  we overrule Billings and hold that, under the statutory scheme, a trial 
  court may consider the relative equities of multiple parties wishing to
  take assignment of an  outstanding interest in a parcel and assign that
  interest to one of the parties, instead of ordering a  public sale. 

       Under the common law, courts were limited to the remedy of partition
  in kind, or partition by  allotment, when individuals decided to end
  co-tenancy.  See P. Craig-Taylor, Through a Colored  Looking Glass: A View
  of Judicial Partition, Family Land Loss, and Rule Setting, 78 Wash. U. L.Q. 
  737, 752 (2000); see also Blanchard v. Cross, 97 Vt. 370, 373, 123 A. 382,
  383 (1924).  Partition by  sale and related powers such as assignment were
  statutory remedies, created to augment the equitable  powers of the courts. 
  See Blanchard, 97 Vt. at 373, 123 A.  at 383 ("The right to partition by 
  allotment was a common law right, but the right to partition by sale is
  purely statutory.  Such a  statute [is] an innovation upon the common law .
  . . ."); Note, Acquiring Property Through Forced  Partitioning Sales:
  Abuses and Remedies, 27 B.C. L. Rev. 755, 760 (1986) (noting that states 
  promulgated statutes allowing partition by sale to address situations where
  partition in kind was  impractical or inadvisable).  Section 5174 is such a
  statute.  It states: 

    [w]hen it appears that the real estate, or a portion thereof,
    cannot be  divided without great inconvenience to the parties
    interested, the  court may order it assigned to one of the
    parties, provided he pays to  the other party such sum of money,
    at such times and in such manner  as the commissioners judge
    equitable.

 

  12 V.S.A. § 5174.  The only exception, or limitation, to this statutory
  power is found in § 5175,  which provides, "[i]n case one of the parties
  interested will not take such assignment and pay such  sum, the court shall
  order the commissioners to sell such estate at public or private sale."  12
  V.S.A.  § 5175. 

       In Billings, this Court was called upon to mediate the interplay of
  these two statutes when  parties owning equal interests in a piece of
  property both were willing to take an assignment and pay  the other for the
  half-share of the property.  The two dissenting judges in that case noted
  that, in  addition to providing remedies beyond those available in the
  common law, the language of § 5174  was permissive with respect to the
  assignment remedy (when property cannot be conveniently  divided, "the
  court may order it assigned to one of the parties") (emphasis added). 
  Billings, 114 Vt.  at 519-20, 49 A.2d  at 183-84 (Moulton, C.J., dissenting
  with whom Jeffords, J. joins).  From this  they discerned an intent to give
  the trial court discretion when making an assignment, allowing it to  do so
  even when competing parties sought such a remedy.  Id., 49 A.2d  at 184
  (permissive language  "carries the implication of a power to make a choice,
  and in the exercise of a sound discretion to  order an assignment to one or
  the other of the parties").

       This conclusion is consistent with the principle that remedial
  statutes ought to be liberally  construed.  See Carter v. Gugliuzzi, 168
  Vt. 48, 53, 716 A.2d 17, 21 (1998) (noting our policy of  construing
  remedial statutes liberally).  The statutory regime expanding the equitable
  powers of the  court when faced with co-tenants wishing to end a
  co-tenancy, but unable to do so on their own, was  implemented in response
  to problems arising from the limited remedy of partition in kind under the 
  common law, as discussed above.  Thus, it should be interpreted to give the
  trial court as many  options as possible to achieve equity between the
  parties, including an expansive power to assign 

 

  property to one of the co-tenants.  Cf. 7 R. Powell, Powell on Real
  Property § 50.07[3][a], at 50-40  (M. Wolf, ed. 2001) ("The common-law
  partition action is equitable in nature.  This suggests that  courts should
  consider all relevant circumstances to ensure that complete justice is done
  . . . .").  

       Furthermore, as the Billings dissent noted, partition by sale is not a
  favored remedy.  114 Vt.  at 519, 49 A.2d  at 183; see also Butte Creek
  Island Ranch v. Crim, 186 Cal. Rptr. 252, 254-55 (Cal.  Ct. App. 1982)
  (noting that partition by forced judicial sale is "strongly disfavored" and
  is not  available absent proof of the equities of such a result where
  co-tenants wish to dissolve a co-tenancy).  Our statutory scheme appears
  to make it the exception, rather than the rule, by placing it  last in
  priority among the powers of a trial court:  sections 5169 through 5173
  provide that when a  party owning a partial interest in a property seeks a
  partition, the property should be divided among  those with interests in
  the property by a judgment of the trial court, which is then recorded in
  the  registry of deeds.  Only if the property cannot be physically divided
  conveniently may the court then  consider the option of assigning the
  property to one of the parties in exchange for an equitable sum.   12
  V.S.A. § 5174.  Finally, if one of the parties will not take an assignment,
  the court is compelled to  order the property sold.  Id. § 5175.  In sum,
  under the statutory scheme, partition in kind is  preferable to assignment,
  and assignment is preferable to sale.

       The majority in Billings read into the statutory scheme an additional
  limitation on the power  of the court to order assignment and gave the
  remedy of judicial sale preferred status in situations  where the statute
  did not.  It read the language of § 5175 requiring that "[i]n case one of
  the parties  interested will not take such assignment" the court must order
  partition by sale, to mean alternately  that if more than one party is
  willing to accept assignment, the court must order partition by sale.  
  Billings, 114 Vt. at 517, 49 A.2d  at 182.  This reading is contrary to the
  plain language of the statute 

 

  and does not comport with the overall scheme described above.  See Russell
  v. Armitage, 166 Vt.  392, 403, 697 A.2d 630, 637 (1997) ("When the meaning
  of a statute is plain on its face, we have no  need for construction, but
  rather must enforce it according to its terms."); see also In re Handy, 171 
  Vt. 336, 341, 764 A.2d 1226, 1233 (2000) ("It is inappropriate to read into
  a statute something which  is not there unless it is necessary in order to
  make the statute effective.") (emphasis in original,  internal punctuation
  and citation omitted).  

       Under general principles of stare decisis, and without examining the
  underlying reasoning of  the decision, this Court declined in Weenolsen v.
  Kamber to overrule our reading of § 5175 in  Billings, noting the
  Legislature's failure to amend the statute following the decision in
  Billings.   Weenolsen v. Kamber, 137 Vt. 540, 541, 409 A.2d 577, 577-78
  (1979).  Nevertheless,"[w]hile we  have the greatest respect for stare
  decisis, and the rule of long-standing legislative acquiescence in  the
  judicial interpretation of statutes, neither can be allowed to prevail when
  it is determined . . . that  an earlier decision is simply wrong."  State
  v. Begins, 148 Vt. 186, 188, 531 A.2d 595, 596 (1987).   Not only do we
  agree with the reasoning of the Billings dissent, that the language
  regarding the trial  court's power to assign partial interests in a
  partition action is permissive and gives the trial court  discretion to do
  so even in the face of competing claims, but we discern no additional
  limitation on  that power other than the one reflected in the plain
  language of § 5175 - only when no party is  willing to take an assignment
  is the court prevented from making one.

       The argument commonly advanced in favor of limiting a court's
  discretion in making  assignments when there are competing parties willing
  and able to take the assignment is that it will  result in arbitrary
  choices.  See L. S. Tellier, Partition: Construction and Application of
  Provision for  Assignment, to One of Co-Owners, of Real Estate Not Readily
  Divisible, 169 A.L.R. 862, 865 

 

  (1947) (citing Corothers v. Jolliffe, 9 S.E. 889 (W. Va. 1889)).  Although
  such an argument is more  compelling in cases such as Billings where the
  parties concerned each own an equal share of the  property, we find this
  argument unpersuasive overall.  There are many occasions where courts are 
  called upon to weigh the equities and award property to one party among
  several, even in cases  where two parties have an equal claim to the
  property at issue.  The most notable is found in the  context of divorce. 
  See Cabot v. Cabot, 166 Vt. 485, 500, 697 A.2d 644, 654 (1997) (statute
  under  which court has authority to equitably divide marital property gives
  court broad discretion); see also  Mills v. Mills, 167 Vt. 567, 568, 702 A.2d 79, 80 (1997) (although trial court has broad discretion in  dividing
  marital property, property must be awarded equitably).

       A genuinely arbitrary decision would not survive abuse-of-discretion
  review on appeal.   Moreover, if the record presents no basis to grant an
  assignment to one party over another, the trial  court may simply decline
  to make an assignment and instead resort to partition by sale; as the
  dissent  in Billings noted, the language regarding assignment is
  permissive, and therefore a court is not  obligated to make one.  Cf.
  Shotwell v. Shotwell, 119 S.E.2d 251, 254 (Va. 1961) (noting, in one of 
  the few cases of the last century to address the issue of assignment under
  a partition statute, that trial  court did not abuse its discretion by
  declining to order assignment where two parties were willing to  take it,
  and instead ordering judicial sale).  Eliminating the option of assignment
  when more than one  party seeks it is unnecessary to guard against the
  danger of arbitrary decision-making and does more  harm than good. 
  Furthermore, we discern an important policy reason for not limiting a trial
  court's  power to make assignments in such circumstances (resulting in the
  automatic sale of property  whenever more than one party is interested in
  the whole).

 

       Forcing partition by sale when more than one co-tenant is willing to
  take assignment of the  property could result in the unnecessary forced
  divestment of numerous family farms.  Cf. P. Craig-Taylor, supra, at
  771-80 (concluding that forced partition by sale has had a
  disproportionately  negative impact on African Americans that has resulted
  in the loss of family land, based in part on  higher incidence of intestate
  succession among African Americans resulting in numerous co-tenants,  and
  on more limited resources among African Americans limiting the ability to
  outbid an outside  party in a public sale); see also Chuck v. Gomes, 532 P.2d 657, 661 (Haw. 1975) (Richardson, C.J.,  dissenting) (noting the
  importance of the favored status of partition in kind relative to partition
  by  sale in a state such as Hawaii where, because of history, "the
  retention of land ownership in one  family line is an important interest
  worthy of preservation and diligent protection").  It is one that is 
  particularly pertinent here in Vermont.  It is not hard to imagine siblings
  who, although they may  have limited resources which enable them to buy out
  a co-tenant's share in the family farm, could not  outbid a developer if
  forced to put the property up for public auction.  Interpreting § 5175 to
  mandate  such an outcome is contrary to the public's interest.

       Sadly, there are even examples in case law of outside parties
  acquiring fractional shares in  property otherwise held by family members,
  some of the shares being quite small, for the specific  purpose of forcing
  a sale in order to acquire the entire property.  See, e.g., Black v.
  Stimpson, 602 So. 2d 368, 369 (Ala. 1992); Gilmore v. Roberson, 139 So. 2d 604, 605-06 (Ala. 1962); see also  Watson v. Durr, 379 So. 2d 1243, 1243-44
  (Ala. 1980) (co-tenant family member initiated partition  action at behest
  of land company before transferring his fractional interest to them).  We
  should not  facilitate such behavior by disregarding the preference given
  assignment to judicial sale in our  statutory scheme.

 

       Forced sale is disfavored because the Legislature, and the common law
  that came before,  sought to minimize the forced divestiture of family
  property where avoidable.  This policy not only  has continuing vitality
  today, but assumes more importance in the face of the increased pressures
  on  rural landowners to sell land.  It is reflected in the hierarchy
  established by our statutory scheme.  We  conclude, therefore, that our
  statutory scheme allows for assignment even when more than one co-tenant
  is willing to accept it, and gives the trial court discretion over whether
  to order an assignment  and the choice of assignee.

       With these principles in mind, we turn to the merits of this
  particular case. (FN1) Reviewing  the record, we discern no abuse of
  discretion.  In ordering defendant to assign his interest to plaintiff, 
  the court found that plaintiff was conducting an active, viable business on
  the property.  The court  also found that he had expended considerable sums
  to construct an office on the property for his  business.  It found that he
  had maintained the property in a reasonable and neat manner, while 
  defendant's use of his own adjoining property, as well as the property at
  issue, for the storage of junk,  old cars, parts and rusted steel was in
  violation of local zoning regulations.  Finally, the court found  that the
  potential loss of use of a driveway across the subject property would not
  prejudice defendant  because his adjoining parcel had substantial road
  frontage from which the property could be  accessed.

 

       Defendant does not specifically challenge any of these factual
  findings, which are all  supported by the record.  Accordingly, we see no
  basis for disturbing the trial court's judgment.

       Affirmed. 


                                       FOR THE COURT:


                                       _______________________________________
                                       Associate Justice


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                                  Footnotes

     
FN1.  Because it does not appear from the record that either party acted
  in reliance on our  decision in Billings, and applying the statutes as
  interpreted above will not lead to an inequitable  result in this case, we
  will not limit the effect of this decision to prospective application only. 
  See  Solomon v. Atlantis Dev., Inc., 145 Vt. 70, 74, 483 A.2d 253, 256
  (1984) (adopting the United States  Supreme Court's criteria for
  determining when decision should be given only prospective effect).