Opinion
No. 12–P–823.
2013-04-1
Linda CABECEIRAS v. David FERREIRA.
By the Court (GRASSO, TRAINOR & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, David Ferreira, appeals from a decree of the Probate Court and from an order denying his motion to amend the decree on the plaintiff Linda Cabeceiras's petition to partition property. The decree ordered the partition and sale of property owned by the parties as tenants in common and divided the net sale proceeds equally between them. David argues that the judge erred in limiting the amounts that he could take as credits against the proceeds from the sale of the property for previous payments of property taxes, insurance, and interest on a home equity line of credit in years prior to the filing of the petition. David maintains here, as he did below, that because he had no agreement to pay rent for his occupancy of the property, the judge abused his discretion in not holding Linda liable for her fair share of those property expenses he incurred. We affirm. 1. Background. The case was tried on a joint statement of uncontested facts that the judge adopted in his decision. After hearing and review of proposed decrees and proposed findings of fact, the judge issued a decree and rationale.
Paramount in the judge's rationale was that there were no agreements between David and the parties' mother (a prior coowner) regarding David's use of, and interest in, the home. Nor were there any agreements between Linda and David as to David's use of the property and the expenses incurred by him. Viewed against this backdrop, the judge concluded:
At the outset, we note that David has not provided this court with a transcript of the hearing, without which he is hard pressed to establish that, notwithstanding the joint statement of stipulated facts, the judge abused his discretion.
“Linda and David are jointly responsible for the outstanding balance of the Rockland Trust equity line of credit in the amount of $65,108.80. The monies expended were for improvements to the property. David is not entitled to any other credits. His payments of real estate taxes, property insurance, interest on the equity line and labor performed in home were his responsibility as he lived in this property for the relevant period of time in this litigation from April, 2001. He paid no rent during this time. All other claims for reimbursement by David are without merit and denied.”
2. Discussion. The essence of David's argument is that by taking into account that he lived in the property and paid no rent for use and occupation, the judge erroneously imposed on David, a cotenant with an undivided interest in the property, an obligation to pay for use and occupation of the property where no such obligation exists in law. See Carroll v. Carroll, 188 Mass. 558, 559 (1905). We disagree that the judge erroneously imposed such an obligation on David. Rather, the focus of the judge's rationale was the uncontroverted fact that no agreements existed between the parties “as to [David's] use of the property and expenses incurred by him.” The judge concluded it was fair and equitable not to credit David for his payments of taxes, insurance, and interest, not because he paid nothing for use and occupation of the property, but because there was no agreement with Linda, his cotenant, that he make those payments, and David had derived use and benefit of the property while Linda had not.
A petition to partition and for an accounting is an equitable proceeding in which the judge has wide equitable latitude to determine how the proceeds of the partition should be distributed. See G.L.c. 241, § 25. “[T]he purpose of partition proceedings is to balance the rights and equities of the parties concerning the property at issue.” Gonzalez v. Pierce–Williams, 68 Mass.App.Ct. 785, 787 (2007). The overall object of the petition is to effect a just and equitable division. See Sanborn v. Johns, 19 Mass.App.Ct. 721, 724 (1985). As we said in Stylianopoulos v. Stylianopoulos, 17 Mass.App.Ct. 64, 69–70 (1983), “[n]o provision in [G.L.]c. 241 deals explicitly with how taxes, mortgage debt service, and insurance shall be accounted for. Such costs, however, are incurred to preserve the common estate and it would be a windfall to the noncontributing tenant if, upon partition, the paying tenant and the noncontributing tenant were not obliged to account so that each tenant in common bears his proportional share of the costs.” That is not to say, however, that David's payment of insurance, interest, and taxes is the sole consideration in the equitable division. There is a rebuttable presumption that partitioned property should be divided equally, and “the burden of showing that a departure from equal division is appropriate rests with the party who seeks the departure.” Canepari v. Pascale, 78 Mass.App.Ct. 840, 844 (2011). The choice of charges to be made and their allocation varies according to the circumstances, and the judge is given considerable leeway. See Sanborn v. Johns, 19 Mass.App.Ct. at 724.
Although the judge could have awarded David credit for those payments, his decision not to do so was not an abuse of his equitable discretion. While both parties derived a benefit from improvements to the property upon sale, David alone enjoyed them during his lengthy occupancy. Where there was no previous agreement between the parties regarding credits to be awarded David for his previous payments of real estate taxes, property insurance, and interest on the equity line, it was open for the judge to conclude, as he did, that it would work a windfall for David to be reimbursed upon partition for expenditures that Linda had not agreed to and that, in this instance, an equitable division was an equal division of the net proceeds. We cannot say that the judge abused his discretion in the equitable division.
Decree affirmed.
Order denying motion to amend affirmed.