Begin v. Benoit

Begin v. Benoit (2006-030)
    
2006 VT 130

[Filed 06-Dec-2006]

                                 ENTRY ORDER

                                 2006 VT 130

                      SUPREME COURT DOCKET NO. 2006-030

                            SEPTEMBER TERM, 2006


  Kelly J. Begin                       }         APPEALED FROM:
                                       }
      v.                               }
                                       }         Chittenden Superior Court
                                       }
  James Benoit                         }
                                       }         DOCKET NO. S1626-04 CnC

                         Trial Judge: Ben W. Joseph

             In the above-entitled cause, the Clerk will enter:

       ¶  1.  Plaintiff Kelly Begin brought an action for partition against
  defendant James Benoit seeking equitable division of the parties' interests
  in their jointly owned home.  In deciding the parties' respective interests
  in the property, the trial court considered plaintiff's financial
  contribution to the property before she acquired a legal interest in the
  home and certain debts incurred by the parties.  In addition, the court
  made awards of personal property to each of the parties and ordered that
  they come to an agreement about a jointly owned time-share unit and camper. 
  Defendant appeals from the trial court order, claiming that the order went
  beyond the scope of a partition action under 12 V.S.A. § 5161.  We affirm
  in part and reverse in part.

       ¶  2.  The parties are unmarried, but were in a long-term
  relationship from 1993 to February 2004.  They began living together, with
  plaintiff's daughter, in early 1994 and expected to eventually marry.  In
  October 1994, the parties had a daughter together and decided to jointly
  purchase a home.  In furtherance of their plan, they hired a buyer broker
  to jointly represent them, viewed properties together, and ultimately
  decided in the summer of 1996 that they wished to purchase the home that is
  the subject of this partition action.  The parties attempted to obtain a
  mortgage together, but due to plaintiff's poor credit history, the bank
  advised the couple to leave plaintiff's name off the deed, mortgage, and
  promissory note for the original financing.  Plaintiff's name was left off
  the documents, defendant obtained the mortgage, and defendant's name alone
  was placed on the deed.  The closing on the purchase occurred in September
  1996.  At the time, the parties both understood that they were purchasing
  the property jointly and agreed that plaintiff's name would be added to the
  deed some time after closing. 
   
       ¶  3.  The parties moved into the home and, as the trial court
  found, began dividing the living expenses on a 50/50 basis, "with the major
  exception being that [defendant] sometimes failed to pay his portion of the
  real estate taxes."  Over the years in which they lived in the home, the
  parties refinanced the property a total of three times.  By 2003,
  plaintiff's credit had been rehabilitated, but due to financial pressures
  on the family, the parties decided to refinance their home a final time to
  pay off some debt owed by each of them.  In light of plaintiff's
  rehabilitated credit, the parties formally added her name to the property
  title and continued to share living expenses equally.  The parties
  separated in February 2004 and plaintiff and the children moved out of the
  house.  In December 2004, plaintiff filed this action for partition seeking
  division of the parties' interests in the jointly owned property.  

       ¶  4.  To determine the parties' respective equity in the home, the
  trial court considered  "the refinancing of the property that was done to
  pay real estate taxes . . . and several credit card balances," and found
  that defendant's net interest in the property was $22,842.50 while
  plaintiff's net interest was $52,157.50.   Because the property was
  incapable of being divided into such shares, the court considered the
  equities and allowed plaintiff the opportunity to buy-out defendant within
  forty-five days of its order.  In the event plaintiff chose to do so, the
  court ordered that defendant's "$22,842.50 interest . . . be reduced by his
  child support arrearage, or $4,174.02."  In addition, the court awarded
  plaintiff certain items of personal property left on the premises, awarded
  defendant his truck, and ordered the parties to come to agreement about
  their jointly owned camper and time-share unit within ten days or both
  items would "be sold and the proceeds divided on a 50/50 basis."  Defendant
  now challenges the trial court's authority to (1) consider plaintiff's
  contributions to the property prior to acquiring her joint interest and (2)
  divide personal property and debt between the parties in an action for
  partition.        

       ¶  5.  Because this appeal concerns questions of law, our review is
  nondeferential and plenary.  Vt. Alliance of Nonprofit Orgs. v. City of
  Burlington, 2004 VT 57, ¶ 5, 177 Vt. 47, 857 A.2d 305; Thompson v.
  Dewey's S. Royalton, Inc., 169 Vt. 274, 276, 733 A.2d 65, 67 (1999).

       ¶  6.  We first deal with defendant's argument that in deciding the
  parties' respective interests upon partition, the trial court lacked
  authority to consider plaintiff's contributions to the home prior to
  acquiring a legal interest in the property.  In Vermont, partition is
  governed by statute.  12 V.S.A. §§ 5161-5188.  We have recently ruled,
  however, that the statutes dealing with partition of real estate "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."  Wilk v. Wilk, 173 Vt. 343, 346, 795 A.2d 1191,
  1194 (2002).  Furthermore, we noted that partition actions are equitable in
  nature and that in such actions, "courts should consider all relevant
  circumstances to ensure that complete justice is done."  Id. (quoting 7 R.
  Powell, Powell on Real Property § 50.07[3][a], at 50-40 (M. Wolf ed.
  2001)).  Thus, we find that while plaintiff was entitled to partition under
  12 V.S.A. § 5161 only upon acquiring her joint tenancy in the property,
  once she brought the partition action, the court was within its right to
  consider her prior financial contributions to the property in an effort to
  equitably divide the parties' interests.

       ¶  7.  Next, we consider the propriety of dividing certain items of
  personal property between the parties in a partition action.  While we find
  merit to defendant's claim that partition concerns real property
  exclusively, we do not reach the issue because defendant failed to preserve
  it below.  "Normally, failure to object below precludes review by this
  Court."  Deyo v. Kinley, 152 Vt. 196, 200, 565 A.2d 1286, 1289 (1989). 
  Where an aggrieved party fails to make a specific objection in the trial
  court, this Court need  not address the issue on appeal.  Human Rights
  Comm'n v. LaBrie, Inc., 164 Vt. 237, 252, 668 A.2d 659, 670 (1995).
          
       ¶  8.  At the outset of this litigation, plaintiff alleged in her
  complaint that the parties co-owned a time-share unit and camper, and that
  plaintiff was the sole owner of certain personal property left at the home. 
  She requested that the trial court "divide the jointly-owned personalty in
  an equitable manner, [and] award her custody of her items."  In his answer,
  defendant did not object to plaintiff's allegations and furthermore went on
  to concede that plaintiff's personal property remained at the home and was
  ready for pick-up.  Upon review of the record, we find nothing to indicate
  a "specific objection" to the lower court's division of the personal
  property, and therefore conclude that defendant has waived the issue.

       ¶  9.  Finally, we address defendant's claim that the trial court
  overstepped its authority by considering the parties' respective debts in
  the action for partition.  Here, it is important to distinguish between the
  types of debt discussed by the trial court in its order.  On the one hand,
  the court appropriately considered the parties' debt related to the
  refinancing of the home-including credit card debts paid off through
  additional mortgages.  As mentioned above, the trial court has authority to
  "consider all relevant circumstances" in order to ensure a just outcome to
  the partition action.  Infra, ¶ 6.  Certainly, debt incurred on the home,
  the subject of partition, was relevant to determining the equities here. 
  On the other hand, the court inappropriately considered defendant's
  child-support arrears and included a set-off for that debt in its order. 
  Not only is the debt unrelated to the division of the home, defendant
  explicitly objected to the court's consideration of child-support arrears
  on the record, stating that a "partition action is not a divorce petition
  which compensates for . . . child support and alimony."  Defendant went on
  to say that the court "must restrict itself to the contributions made to
  the real property" and that "[t]o do otherwise would be beyond the scope of
  12 V.S.A. § 5161."  On this point, we agree with defendant, and thus, we
  reverse the portion of the trial court's order that offsets defendant's
  interest in the house by $4,174.02 in the event that plaintiff exercises
  her right to buy-out defendant's share of the property.
                                      
       Affirmed in part and reversed in part.


                                       BY THE COURT:


                                       _______________________________________
                                       Paul L. Reiber, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Brian L. Burgess, Associate Justice