Jerry Perry v. Patricia Brown

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0410, Jerry Perry v. Patricia Brown, the
court on March 13, 2020, issued the following order:

Having considered the briefs, reply memorandum, 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, Patricia Brown, appeals the order of the Circuit Court
(Weaver, J.) in an action filed by the petitioner, Jerry Perry, to partition real
property. See RSA chapter 547-C (2019). The respondent argues that the trial
court erred in: (1) ordering the property to be sold; (2) ruling that her exhibits
were inadmissible; and (2) depriving her of her due process rights.

The property consists of a single-family residence with a detached, three-
car garage. The respondent first argues that the trial court erred in ruling that,
because the property cannot be physically divided, it must be sold. She argues
that the court overlooked the statutory provision stating that the court “may, in
its discretion, award or assign the property” to one of the parties, see RSA 547-
C:29, and allow her to “buy out” the petitioner’s interest, as she requested in
her answer to the petition. Assuming, without deciding, that the respondent
preserved this issue for review, it is clear from the record that the trial court
understood that the statute did not require the property to be sold. The court
stated in its order that, having found that the property cannot be physically
divided “without great prejudice or inconvenience,” it “may order it to be sold.”
(Emphasis added.)

“According to the plain language of RSA 547-C:25, the probate court has
the authority to order the sale of property and divide the proceeds.” DeLucca v.
DeLucca, 152, N.H. 100, 105 (2005). A partition action is equitable in nature,
and we will not disturb the trial court’s equitable order unless it constitutes an
unsustainable exercise of discretion. Hayes, Tr. v. Connolly, Tr., 172 N.H. 102,
106 (2019). The record shows that the respondent is not financially able to
promptly reimburse the petitioner for his contributions to, and interest in, the
property without refinancing the mortgage loan on the property and that, as of
trial, she had been unable to refinance the property under terms that would
allow her to reimburse the petitioner for his share. Based upon this record, we
conclude that the respondent has failed to demonstrate that the trial court
unsustainably exercised its discretion in ordering the property to be sold. See
id.

Moreover, the court’s order specifically provides that the respondent
may, in lieu of a sale, acquire the petitioner’s interest in the property by
reimbursing him for his contributions to the property and paying him for his
half interest in the property based on a current appraisal. We note that this
remedy would provide essentially the same relief the respondent requested in
her answer to the petition. The court’s only caveat was that the property must
be marketed within 30 days and that the respondent “may not delay the listing
and sale of the property to attempt to obtain any required financing.”

The respondent next argues that the trial court erred in ruling that all
but one of her exhibits were inadmissible. We review challenges to a trial
court’s evidentiary rulings under our unsustainable exercise of discretion
standard. In the Matter of McArdle & McArdle, 162 N.H. 482, 485 (2011). We
will reverse such rulings only if they are clearly untenable or unreasonable to
the prejudice of a party’s case. Id. The trial court ruled that, with the
exception of the town’s property assessment, the respondent’s exhibits
consisted of settlement discussions and communications between the parties
not relevant to the property division. The respondent argues that the partition
statute specifically provides that the court may consider “the nature of the use
made of the property by the parties,” see RSA 547-C:29, and that her exhibits
were relevant to show that she uses the property both for her personal
residence and her business. The record shows, however, that the trial court
fully considered the fact that the respondent uses the property both for her
personal residence and her business. Based upon this record, we conclude
that the respondent has failed to show that the trial court’s rulings were clearly
untenable or unreasonable to the prejudice of her case. See In the Matter of
McArdle, 162 N.H. at 485.

Finally, the respondent argues that the trial court deprived her of her
due process rights by ordering the parties to place the property on the market
“within 30 days of the date of the clerk’s notice of this order,” asserting that the
court thereby deprived her of her right to appeal the court’s decision. However,
the respondent’s timely appeal stayed the trial court’s order from taking effect,
see Gray v. Kelly, 161 N.H. 160, 167-68 (2010); Prob. Div. R. 74, as the trial
court recognized in its September 26, 2019 order denying, in part, the
petitioner’s post-trial motion on the ground that it cannot “order a sale pending
the appeal.” Accordingly, we find no error.

The petitioner’s request for attorney’s fees on appeal is denied. See Sup.
Ct. R. 23.

Affirmed.

Hicks, Bassett, Hantz Marconi, and Donovan, JJ., concurred.

Timothy A. Gudas,
Clerk

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