Opinion
No. CV 06 5001383
November 17, 2009
MEMORANDUM OF DECISION RE DISTRIBUTION
This vigorously contested partition matter has a long history in this court, having been initiated by a summons and complaint dated June 29, 2006. It requested a partition of real property owned jointly by a brother and two sisters, including a sale with a distribution of the net proceeds. The many interlocutory matters need not be reviewed for the purpose of this memorandum but will appear in the Court file, including the substitution and defaulting of parties and lienors.
The defendant Oscar J. Wambolt, Jr. did not appear and was defaulted on August 11, 2006.
A trial was held on February 13, 2007, before Judge Devine after which a Memorandum of Decision was filed on February 16, 2007, in which the court made certain findings of fact from testimony and exhibits presented and ordering a sale of the property with the net proceeds being held until "further order of the Court." At that time the court found the value of the property was $135,000.
The defendant Wambolt subsequently appeared by counsel on April 9, 2007.
There were aborted efforts to sell the property in 2007 and 2008 but eventually a sale was held on June 27, 2009 for the high bid of $86,500. The defendant Wambolt was the high bidder at the sale.
Thereafter on July 22, 2009, the plaintiffs moved the court for the payment of costs and expenses of sale and a division of the net proceeds and other matters. The defendant objected. A hearing was held on October 22, 2009 at which the parties had an opportunity to present evidence and advance argument as to the motion.
Briefs were filed by the parties on November 5, 2009 in which both parties advance their respective claims about the appropriate division of the net proceeds. There is no dispute about the committee fees and expenses.
PREVIOUS DECISION
As stated above, the court, after a trial during a time when the defendant Wambolt had been defaulted for failure to appear, made certain findings on February 16, 2007, as follows:
1. The subject property is a single-family residence on 2.1 acres of land on Route 85, New London Road, Colchester, Connecticut, bounded and described in Volume 467, Page 252 of the Colchester Land Records.
2. The parties are siblings who acquired the property by Certificate of Descent from their mother's estate in 1972.
3. Since 1972, the siblings have had an informal agreement that the plaintiff's brother, defendant Oscar Wambolt, could reside in the family home located at said property so long as he paid the real estate taxes, paid for and kept the property insured, and kept the property in good repair.
4. Since that time, the defendant Oscar Wambolt has:
(a) allowed the property to fall into such a state of disrepair as to make the property uninsurable;
(b) has failed to pay real estate taxes, causing the Town of Colchester to lien the property which, in turn, caused the plaintiff sisters to pay the real estate taxes, interest and penalties;
(c) has failed to insure the premises;
(d) has filled the house and grounds with such clutter as to make the property unsafe to enter;
(e) has allowed his creditors to lien the property in order to secure his unpaid debts.
5. The real estate's appraised value is $135,000 (Plaintiffs' Exhibit 2).
6. The defendant, Oscar Wambolt, Jr., is currently in possession of the property and has refused to discuss the matter and/or cooperate in maintaining the physical condition of the property and has failed to pay bills and expenses referred to in (4) above.
SUPPLEMENTAL FINDINGS
It appears that supplemental findings of fact are appropriate to the court's exercise of discretion with regard to the equitable matter involved in a determination as to the division of the net proceeds. See Eisenbert v. Tuchman, 94 Conn.App. 364 (2006).
Therefore, from the evidence presented at the hearing on the said motion, including the reasonable and logical inferences from the same, and taking into account the court's evaluation of the credibility of the witnesses, the following supplemental findings of fact are made.
It should be noted that this court does not intend to modify or in any way alter the findings of Judge Devine set forth above for two reasons: first, those findings resulted from a trial held in this matter conducted in accordance with the rules of court and this court does not, on this motion, have the authority to alter them; but secondly, and perhaps most importantly, this court, having heard the evidence at the hearing on the instant motion (including the testimony of defendant Wambolt) would also make the same findings separately.
The basic argument of the parties (among the many, many disagreements) is over whether or not the brother (Wambolt) and sisters made an agreement after the death of their parents and the distribution of the family home to them equally that the defendant could continue to live in the house rent free as long as he paid the taxes and insurance and maintained the property. Judge Devine at the trial found they did and this court cannot and would not alter that finding from any credible evidence produced at the hearing on the motion.
The defendant lived at the house for 38 years rent free. He did in fact pay the taxes for many years until he had a disagreement with his sisters over another issue. While there was great disagreement over the quality of his maintenance of the property even Wambolt agreed that he did take some actions in that regard over the years.
The plaintiffs paid a total of $13,546.70 in town taxes after the Town of Colchester brought suit on February 10, 2006 against all the owners to foreclose a tax lien because of the defendant's failure to continue to pay the taxes as agreed.
The defendant Wambolt did in fact keep insurance on the property during some of the time he occupied the same.
The defendant Wambolt never asked his sisters during the entire 38 years that he occupied the property to make contributions to those expenses and taxes that he in fact did pay. Nor did he ever offer to pay rent for his use of the property.
THE LAW
The parties are not in substantial disagreement as to the requirements of the law. "It is well established that in a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given to specific testimony." Young v. Young, 112 Conn.App. 120, 127 (2009).
Connecticut General Statutes, § 52-495 provides, in part: "Courts having jurisdiction of actions in equitable relief may, upon the complaint of any person interested, order partition of any real property . . ." Our State Supreme Court has stated that "it is not always true that each tenant in common or joint tenant is entitled to equal shares in the real estate." Levay v. Levay, 137 Conn. 92, 96, 75 A.2d 400 (1950). "Although each party was the owner of an undivided one-half interest in the property, it does not follow that he or she will necessarily be entitled to equal shares of the monies obtained from the sale. Equities must be considered and, if established, must be liquidated before distribution is ordered." Fernandez v. Rodrigues, 255 Conn. 47, 60, 761 A.2d, 1283 (2000), on appeal after remand, 90 Conn.App. 601, 879 A.2d, cert. denied, 275 Conn. 927, 883 A.2d 1243 (2005), cert. denied, 547, U.S. 1027, 126 S.Ct. 1585, 164 L.Ed.2d 312 (2006). "An action for partition at common law was equitable in nature, requiring the court to examine all relevant circumstances . . . the determination of what equity requires in a partition case, the balancing of the equities, is a matter for the discretion of the trial court." Eisenberg v. Tuchman, 94 Conn.App. 364 (2006). In Varley v. Varley, 189 Conn. 490 (1988), where one party had had exclusive use of the property and the other party had received no benefit from the property, the court stated that it was "appropriate to make an equitable adjustment for that fact." "Where one person has been compelled to pay money which others were equally bound to pay, each of the latter in good conscience should contribute to the portion which he ought to pay of the amount expended to discharge the common burden or obligation. Assolina v. Sons of Italy, 119 Conn. 681, 692 (1935). Our law is well-settled that "when one co-tenant has paid a debt or obligation for the benefit of the common property . . . he is entitled as a matter of right to have his co-tenants refund to him their proportionate share of the amount paid." 20 Am.Jur.2d, Co-tenancy and Joint Ownership, § 58.
DISCUSSION
It is clear to the court that in balancing the equities of the parties the defendant Wambolt has not by his conduct or lack thereof become entitled to a greater share of the net proceeds than his sisters (or their representatives). His testimony makes it clear that he feels himself that he has been treated badly by his sisters. But neither in his testimony nor his brief in this court has he seemed to the court to take into account that his sisters got absolutely no benefit from the legacy of their parents from 1972 to the present and that he alone had a rent free situation except for some taxes, insurance and limited repairs he undertook to provide.
Neither party at the hearing on the motion presented credible evidence as to the rental value of the property over the 38 years, but the plaintiffs are asking the court to consider that value (whatever it may be) as the defendant's share of the sale. The court cannot do this without such evidence.
The plaintiffs have asked the court to consider the delay between the initial order of sale in 2006 and the ultimate sale in 2009 and attribute that delay (and perhaps the reduction in sale price) solely to the defendant Wambolt. On the basis of the credible evidence before the court this cannot be done. There have been too many bumps in the road to a final sale to attribute them all to the defendant.
Also, both parties have each called the court's attention to various conduct of the other which they claim relates to the "equities" to be considered in connection with the division of the net proceeds of the sale. This included the delay by the plaintiffs in addressing the condition of the property and the defendant's conduct in permitting the property to become deteriorated. The court must and will consider all of the various factors presented by the credible evidence, whether specifically mentioned here or not, in reaching a determination of the matter.
The plaintiffs have invited the court to expand its consideration to a dispute between the parties which relates to certain personal property and U.S. Savings Bonds apparently remaining from the 1972 settlement of their parents' estates. The defendant, Wambolt, objects. The court declines the invitation to go beyond the allegations of the complaint and the normal bounds of a partition action.
CT Page 18605
ORDER
Applying the law to the facts found by Judge Devine and this Court the following Orders are entered.The clerk of the court is Ordered to pay from the $86,500.00 on hand from the sale of the property the following payments which shall be made through counsel of record:
1. Committee fees and costs as of record appear:
a. Puhlick Cartier, PC for Barbara Masters $3,765.00
b. Richard Dixon $9,132.92
2. Costs of Suit to Plaintiffs' counsel $1,031.47
3. Evelena Hollendonner and the Estate
Of Norine Tetreault, as reimbursement for
The payment of back taxes $13,546.34
4. The balance:
a. 1/3 to Evelena Hollendoner $19,674.75
b. 1/3 to the Estate of Norine Tetreault $19,674.76
c. 1/3 to Oscar J. Wambolt, Jr. $19,674.76
Payments of the committee fees and costs (1, above) shall be made forthwith, the remaining payments shall be made only after the appeal period from the entry of this order shall have passed, provided that if an appeal is filed by any party the above order shall be stayed pending the outcome of said appeal, and provided further that no payment shall be made to Oscar J. Wambolt, Jr. until the chief clerk is satisfied as to the release or satisfaction of the IRS lien as alleged in the complaint.