Christopher R. Moen v. David H. Moen

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2023-0536, Christopher R. Moen v. David H.
Moen, the court on February 12, 2025, issued the following
order:

The court has reviewed the written arguments and the record submitted
on appeal, and has determined to resolve the case by way of this order. See
Sup. Ct. R. 20(2). The respondent, David H. Moen, appeals an order of the
Circuit Court (Yazinski, J.) granting Christopher R. Moen’s petition for partition
of real estate pursuant to RSA chapter 547-C. We affirm.

The following facts either were found by the trial court or are undisputed
by the parties. This case involves three parcels of land in Goshen. David and
one of his brothers, Richard Moen, took title to three adjacent parcels of land in
Goshen in separate transactions: the Purmort lot was purchased in 1989 and
consisted of 11.44 acres; the Peterson lot was purchased in 1993 and was an
100’ x 100’ lot; and the Stansfield lot was purchased in 1999 and consisted of
2.82 acres. The lots total approximately 14.5 acres of land. Their mother,
Cathy Moen, provided funds for the last two parcels. The Purmort and
Stansfield parcels were transferred to David and Richard as tenants in
common, and the Peterson parcel was transferred to David and Richard as a
joint tenancy.

Richard died in 2020 and his will named another brother, Christopher
Moen, as a beneficiary and executor. Richard’s will stated: “I give, devise and
bequeath my interest in real property, including my log cabin home and three-
bay garage located . . . [in] Goshen, New Hampshire, together with the
contents therein, to my brother Chris R. Moen, if he shall survive me.”
Christopher, in his role as a devisee, filed a petition requesting that the court
partition the Goshen property between him and David.

In 1998, prior to the acquisition of the Stansfield parcel, Richard
contacted David to obtain his approval to merge the Purmort and Peterson lots,
and, thereafter, filed paperwork with the town of Goshen to merge them.
Although it is undisputed that the merger paperwork contained errors, the
town approved the merger and began taxing the two parcels as one. Following
the acquisition of the Stansfield parcel in 1999, the town taxed the entire
property as a single lot of land. David was aware that the town was taxing the
parcels as if they were merged and never objected. David acknowledges that he
stopped paying taxes on the property several years ago and has contributed
nothing to it since.
 Both Christopher and Cathy testified that it was the intent of Richard
and David, based upon numerous conversations throughout the years, that
Richard would build a home on one half of the property and David would build
a home on the other half. Cathy testified that she and her late husband had a
subdivision plan drawn to subdivide the property in half according to David
and Richard’s plans. The subdivision plan was drafted and the family met with
an attorney to begin the subdivision process. However, Cathy claimed that
David became belligerent toward the attorney, and the meeting was terminated.
The subdivision process was never completed.

Consistent with the proposed subdivision plan, Richard built a log cabin
and three-car garage on his side of the property. All of the receipts involving
the purchase, design, and delivery of the cabin were in Richard’s name. Cathy
provided funding for the log cabin kit. Christopher often helped Richard work
on building the cabin. David was not part of the planning or purchase of the
cabin. He testified that he contributed time and materials to the building of
the cabin, but pictures David submitted of his time at the cabin were at least
fifteen years old, and a neighbor testified that he had not seen David on the
property in at least fifteen years.

The trial court found that “it was the intent of Richard and David to
subdivide the property as it appears on the [subdivision] plan.” The court
found it “fair and equitable to honor the intentions of Richard and David as to
the property they held as tenants in common.” Accordingly, the court
partitioned the property by awarding Christopher the portion of land shown as
Richard’s on the subdivision plan, which includes the garage and the cabin,
and awarding David the portion of land shown as his on the subdivision plan.
The trial court ordered the parties to proceed with the subdivision as shown on
the plan. David filed a motion to reconsider, which the court denied. David
now appeals the trial court’s decision to this court.

Partition actions are governed by RSA chapter 547-C, which vests the
trial court with broad power to determine the rights of those with an interest in
real property. See RSA 547-C:30 (2019). “An action for partition calls upon
the court to exercise its equity powers and consider the special circumstances
of the case, in order to achieve complete justice.” Hayes, Tr. v. Connolly, Tr.,
172 N.H. 102, 106 (2019) (quotation omitted).

Partition proceedings are “remedial in nature” and “[t]he provisions of
[RSA chapter 547-C] are to be liberally construed in favor of the exercise of
broad equitable jurisdiction.” RSA 547-C:30. “In entering its decree the court
may, in its discretion, award or assign the property or its proceeds on sale as a
whole or in such portions as may be fair and equitable.” RSA 547-C:29 (2019).
To determine what is fair and equitable, a court “may consider”:

2
 the direct or indirect actions and contributions of the parties to the
acquisition, maintenance, repair, preservation, improvement, and
appreciation of the property; the duration of the occupancy and
nature of the use made of the property by the parties; disparities in
the contributions of the parties to the property; any contractual
agreements entered into between the parties in relation to sale or
other disposition of the property; waste or other detriment caused
to the property by the actions or inactions of the parties; tax
consequences to the parties; the status of the legal title to the
property; and any other factors the court deems relevant.

Id. On appeal:

We review the trial court’s decision to grant equitable relief for an
unsustainable exercise of discretion. In doing so, we determine whether
the record establishes an objective basis sufficient to sustain the
discretionary judgment made. The court has broad and flexible equitable
powers which allow it to shape and adjust the precise relief to the
requirements of the particular situation. A court of equity will order to
be done that which in fairness and good conscience ought to be or
should have been done. It is the practice of courts of equity to
administer all relief which the nature of the case and facts demand. The
party asserting that a trial court order is unsustainable must
demonstrate that the ruling was unreasonable or untenable to the
prejudice of his case. We will not disturb the findings of the trial court
unless they lack evidentiary support or are legally erroneous.

Brooks v. Allen, 168 N.H. 707, 711 (2016) (citations, quotations, and ellipses
omitted).

David argues that contrary to RSA 547-C:29, the trial court partitioned
the property without considering the parties’ contributions to the property.
However, the trial court acknowledged that it may “consider the direct or
indirect actions and contributions of the parties to the acquisition,
maintenance, repair, [preservation], improvement, and appreciation of the
property,” which is consistent with RSA 547-C:29. Furthermore, throughout
its order, the court considered and weighed the evidence, including Richard’s
and David’s contributions to the property. It found that David and Richard
acquired title to three parcels of property, but Cathy provided funds for the
purchase of two of the parcels. It also found that Cathy’s financial contribution
to the construction of the log cabin was a gift to Richard only, not to both
Richard and David. As for the construction of the cabin, David testified that he
contributed to the building of the cabin, but the trial court expressly found that
David’s “testimony lacked credibility.” Lastly, the trial court found that David
stopped paying taxes on the property several years ago and has not contributed
anything to the property since. These findings support the conclusion that

3
while David contributed to the acquisition of one of the parcels, he did not
meaningfully contribute to the maintenance, improvement, or appreciation of
the property. Accordingly, we conclude that the trial court adequately
considered the factors set forth in RSA 547-C:29 and further conclude that
David has failed to demonstrate that its ruling was unreasonable or untenable.
See Brooks, 168 N.H. at 711.

We also disagree with David that various trial court findings are not
supported by the evidence or are erroneous as a matter of law. Although there
was conflicting evidence presented at the hearing, as the trier of fact, the trial
court was in the best position to measure the persuasiveness and credibility of
evidence and was not compelled to believe even uncontroverted evidence. Id. at
715. It was within the discretion of the trial court to resolve conflicts in the
evidence, and it could accept or reject such portions of the evidence presented
as it found proper. Id. 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.

David challenges the trial court’s finding that Richard’s interest is “the
portion of the land shown as Richard’s on the [subdivision] plan, which
includes the garage and cabin.” He argues this finding is not supported
because Richard, when he died, did not have a legal interest in all of the land
shown as “Richard’s” on the subdivision plan. Specifically, David asserts that
Richard did not have a devisable interest in the Peterson parcel because it was
owned in joint tenancy and thus passed to David upon Richard’s death.

The trial court concluded that the parcels were voluntarily merged,
finding that after obtaining David’s approval to merge the lots, Richard filed
paperwork with the town to merge the parcels and that despite the
inaccuracies in the paperwork, the town approved the merger and began taxing
the parcels as one. David argues that the merger is not valid and did not sever
the joint tenancy because Richard failed to obtain and record the written
consent of the mortgage holder for one of the parcels, as is currently required
by statute. See RSA 674:39-a, II (Supp. 2024). However, at the time of the
merger in 1998 and the discharge of the mortgage in 1999, RSA 674:39-a did
not require that the mortgage holder receive notice or provide written consent
for a merger to be effective. RSA 674:39-a (Supp. 1995) (amended 2016); see
Laws 2016, 327:1. Thus, the merger of the parcels did not fail for lack of
notice to the mortgage holder.

We disagree with David that the merger does not show an intent to sever
the joint tenancy. “The intent of the parties controls when analyzing whether a
joint tenancy has been severed.” Estate of Croteau v. Croteau, 143 N.H. 177,
179 (1998) (citation omitted). The Peterson parcel held in joint tenancy was
only 100’ x 100’, while the Purmort parcel held in common was 11.44 acres. At
trial, David acknowledged that he had “no idea” why this small lot was held in
joint tenancy. Even if the merger was prompted by the town for tax purposes

4
as David asserts, David and Richard’s voluntary merger of the smaller lot held
as joint tenants with the significantly larger lot held as tenants in common
reflects their intent to sever the joint tenancy and hold the merged property as
tenants in common. Thus, David’s argument that he is the surviving joint
tenant of a portion of the property is unavailing.

Finally, David challenges the trial court’s reliance on a draft subdivision
plan. We do not construe the court’s order as specifically enforcing the
subdivision plan. See Hayes, 172 N.H. at 107. Rather, the court examined the
evidence, including evidence of Richard and David’s intent to subdivide and
testimony demonstrating that they operated as if the property had been
subdivided. It then partitioned the property equally, in the same way reflected
in the draft subdivision plan. The court reasonably used its discretion to
assign the property in portions it determined to be fair and equitable. See RSA
547-C:29. Partitioning the property in the same way reflected in the draft
subdivision plan is not unfair, unreasonable, or inequitable. See Hayes, 172
N.H. at 107.

We have reviewed the record and conclude that the trial court’s findings
are supported by the evidence and are not erroneous as a matter of law. See
Brooks, 168 N.H. at 715. We have considered David’s remaining arguments,
and have concluded that they do not warrant further discussion. See Vogel v.
Vogel, 137 N.H. 321, 322 (1993). We conclude that David has failed to
demonstrate that the trial court’s ruling was unreasonable or untenable.

Affirmed.

MACDONALD, C.J., and BASSETT, DONOVAN, and COUNTWAY, JJ.,
concurred; HANTZ MARCONI, J., did not participate in the final vote.

Timothy A. Gudas,
Clerk

5