Mary Feeney v. Karyn Kelley

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2015-0049, Mary Feeney v. Karyn Kelley, the
court on October 9, 2015, issued the following order:

Having considered the briefs and record submitted on appeal, we conclude
that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1). We affirm.

The respondent, Karyn Kelley, appeals an order of the Superior Court
(Abramson, J.), granting the petition for partition filed by the petitioner, Mary
Feeney. See RSA 547-C:2 (Supp. 2014). The respondent contends that the trial
court erred by: (1) “omit[ing] or overlook[ing] the import of applying equitable
considerations”; (2) “presuming joint tenancy led to equal division of the
property”; and (3) not considering “the need to sell the property and the effect of
the homestead right.”

An action for partition calls upon the trial court to exercise its equity
powers and consider the special circumstances of the case in order to achieve
complete justice. Foley v. Wheelock, 157 N.H. 329, 333 (2008). RSA 547-C:29
(2007) authorizes the trial court to consider the parties’ contributions to the
acquisition, maintenance, repair, preservation, improvement, and appreciation of
the property, and any disparities in those contributions. Pedersen v. Brook, 151
N.H. 65, 68 (2004). It also allows the trial court to consider the status of legal
title to the property and other factors it deems relevant. Id. “Equity does not
require that the proceeds in partition always be divided strictly according to the
relative value of the estates held by the respective parties.” Bartlett v. Bartlett, 116 N.H. 269, 272 (1976).

We will not disturb the trial court’s decree unless it is unsupported by the
evidence or plainly erroneous as a matter of law. DeLucca v. DeLucca, 152 N.H.
100, 102 (2005). We review the record of the proceedings before the trial court to
determine whether its findings could be reasonably made, understanding that
the trier of fact is in the best position to measure the persuasiveness and
credibility of evidence and is not compelled to believe even uncontroverted
evidence. Id. Thus, we defer to the trial court’s resolution of conflicts in the
testimony, the credibility of witnesses, and the weight to be given evidence. Id.

The respondent acknowledges that legal title is one consideration in
determining partition. However, she argues that “[b]y elevating joint tenancy
above other statutory factors, the court misconstrued its statutory obligation to
‘consider the special circumstances of the case, in order to achieve complete
justice.’” We disagree. The trial court specifically considered the respondent’s
claims that “she originally purchased the property individually, she only
transferred the property to the petitioner to secure a better rate on a mortgage,
and petitioner contributed little to nothing to the maintenance of the property
after it became jointly owned.” It concluded, however, that respondent’s original
purchase was “irrelevant,” and observed that the parties had jointly owned the
property for fifteen years, “during which time both petitioner and respondent
were legally responsible for it.” The trial court further found that for most of that
time the respondent’s mother occupied the property and “paid all associated
costs and expenses relating to the property.”

Although the respondent argued that she, and not the petitioner, had
made significant contributions to the property, the trial court concluded that she
had provided “no evidence supporting these claims.” Thus, the trial court
determined that “because neither party significantly contributed to the
maintenance of the property, respondent does not have any significant equitable
claim to the property” that would justify abrogating the petitioner’s interest. On
appeal, the respondent points to no evidence in the record that would have
compelled, as a matter of law, a different ruling. Although the respondent argues
that the trial court failed to make sufficient findings, we assume it made all
findings necessary to support its decision. See Nordic Inn Condo. Owners’ Assoc.
v. Ventullo, 151 N.H. 571, 586 (2004). We note that neither party submitted
proposed findings of fact or trial memoranda, despite the trial court’s invitation.

We next address the respondent’s argument that “[b]y wrongly relying on a
presumption the joint deed ‘as a matter of law’ provided ‘an equal ownership
interest in the property’ . . . , the Court ‘impermissibly shifted the burden of
proof’ onto” her. Although the trial court addressed the respondent’s argument
first in its initial order and referred to the petitioner’s argument as a “response,”
we interpret the trial court’s order, when read in conjunction with its order upon
reconsideration, as placing the initial burden on the petitioner, who argued that
she had been a joint tenant of the property for many years and that “neither
party contributed to the maintenance of the property.” See In the Matter of
Salesky & Salesky, 157 N.H. 698, 702 (2008) (interpretation of trial court order is
question of law, which we review de novo).

The respondent argues that the trial court did not consider the import of
the petitioner’s letter disclaiming her interest in the property. However, the trial
court noted that the petitioner argued that the letter was intended to take effect
only “in the event of the simultaneous death of both parties,” and that the
respondent “did not contest this explanation.” Accordingly, the trial court
concluded that “the letter signed by petitioner never became effective.” To the
extent that the respondent is arguing that the trial court should have placed
more weight upon the letter, we defer to the trial court. See DeLucca, 152 N.H.
at 102.

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 The respondent argues that: (1) the petitioner provided no documentation
to support her argument that the respondent had not lived on the property prior
to her relationship with the petitioner; (2) the petitioner did not document the
respondent’s mother’s payments while living at the property and that the
respondent “produced documentation showing she alone paid off the mortgage”;
(3) there were no liens upon the property after the mortgage was paid; (4) the
respondent owned the property for some years before deeding it to the petitioner;
(5) the petitioner never lived on the property; and (6) the respondent contributed
to the home she shared with the petitioner. However, none of these factual
allegations compels the conclusion that the trial court’s equitable decision was
unsupported by the evidence or plainly erroneous as a matter of law. See id.

Because we conclude that the trial court properly weighed the equitable
considerations in accordance with RSA 547-C:29, we need not address whether it
erred in assuming that a joint tenancy creates a rebuttable presumption that
each tenant is entitled to an equal portion of the property upon partition. See
Kessler v. Gleich, 156 N.H. 488, 494 (2007) (stating we will not disturb trial
court’s judgment when error did not affect outcome).

We next address the respondent’s arguments that the trial court did not
consider whether it was necessary to sell the property or whether she had a
homestead interest. She does not point to where she raised either of these
arguments to the trial court; therefore, we decline to address them. See Town of
Atkinson v. Malborn Realty Trust, 164 N.H. 62, 69-70 (2012). We note that the
trial court ordered the property sold, unless either party purchased the other’s
interest, because the property is “a condominium unit, and as such division of
the property is not possible.”

Affirmed.

Dalianis, C.J., and Hicks, Conboy, and Lynn, JJ., concurred.

Eileen Fox,
Clerk

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