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Bar Journal - December 1, 1999

Death, Divorce and the Family Home

By:
 

When Rita Croteau died on January 17, 1996, she expected her children to inherit the family home, as she had provided in her Last Will and Testament. It was not to be. Instead, George Croteau, whom Rita had divorced 21 years earlier and who had not lived in the house since the 1970's, became the sole owner of the residence.

The divorce litigation between Rita and George Croteau commenced in the 1970's, continued in the 1980's and ultimately concluded with trial and an appeal to the New Hampshire Supreme Court in the 1990's. However, what ultimately decided the destiny of the family home was a conveyance in July of 1964.

George and Rita Croteau purchased their family home at 25 Bow Street, Manchester, New Hampshire on July 30, 1964. They took title in joint tenancy. Their three children, Denise, Deborah and Marc, grew up in the home, living with their parents until domestic turmoil ended the marriage. The divorce concluded with George Croteau "tacitly agreeing" to the terms of the final decree, effective March 4, 1975. The Hillsborough County Superior Court granted Rita Croteau a divorce on the grounds of irreconcilable differences. The Court also granted her custody of the remaining minor child, Marc, awarded $25.00 per week child support, and $25.00 per week alimony. If George Croteau worked a 40-hour week, he was to pay additional child support and alimony. The Court awarded to Rita Croteau the household furniture and furnishings. The Court awarded to George Croteau the 1971 Cadillac. The specific terminology used by the Court in awarding the furniture, furnishings and car would be important when compared to the part of the Decree regarding the family home.

The language the Court used to determine the destiny of the family home would prove crucial 23 years later. The Decree of Divorce provided:

It was further ordered, adjudged and decreed by the court that the said Rita L. Croteau to have use of the real property at 25 Bow Street in Manchester in the County of Hillsborough, and State of New Hampshire until she desires to sell same or remarry, whichever occurs first, at which time the said Rita L. Croteau will pay the said George D. Croteau the sum of Eight Thousand Dollars ($8,000.00) for his interest.

On March 25, 1975, shortly after the issuance of the final Decree of Divorce, Rita executed her Last Will and Testament. She provided that all of her property, including her real estate, go to her children, Denise, Deborah and Marc. Her will remained unchanged to her death.

In 1981 George challenged the provision in the divorce decree pertaining to the family home. Calling the decree "a vague Order," he claimed that the decree was deficient because it did not provide for a distribution of his interest in the family home "upon other eventualities, such as the last child attaining the age of majority or becoming emancipated." George Croteau claimed that although he had agreed to the terms of the final decree at the court hearing, his understanding was that the family home would be sold when the youngest child became emancipated, left the household or got married. Marc was no longer a minor, and George wanted to get his share of the equity in the home.

Soon after filing the challenge, George withdrew his petition without explanation. Later in 1981, he renewed his effort and sought a court order to compel the sale of the family home. Now he wanted to obtain a 50% distribution of the net proceeds of the sale. George claimed that his $8,000.00 interest in the home equaled 50% of the equity in the home at the time of the divorce, based upon financial disclosures filed by Rita. He also claimed that he had not filed a Financial Affidavit, but if he had, he would have valued the home at a figure nearly double that submitted by Rita. Finally, George claimed that the home was now worth approximately $50,000.00.

In May 1982, the Superior Court denied his Motion. The court found that Rita currently used and occupied the 25 Bow Street residence as her home and was not required to sell it. The court concluded that if the property were ever sold, or if Rita Croteau remarried, then George's interest would be limited to $8,000.00. The court granted Rita's requested ruling of law that an award exceeding 50% of the marital estate pursuant to a divorce decree does not in itself demonstrate an inequitable or unjust distribution.1 Neither party, however, had requested that the court determine whether or not George's interest would be different than the $8,000.00 upon any other eventuality, such as Rita's death.

For the remainder of her life, Rita resided at the home on Bow Street. She made capital improvements and cared for the home. She paid the mortgage and real estate taxes. She insured the property. She maintained the home with pride, knowing it was the most significant asset in her estate that she would leave to her children.

Within days of Rita's death, the children and George argued about their competing interests in the home. By correspondence dated January 25, 1996, George claimed sole title to the home. He alleged he was the survivor of the joint tenancy created by the 1964 deed.

Deborah A. Magnon, one of Rita's children, was appointed Administratrix of the Estate of Rita L. Croteau. Ms. Magnon filed a Petition for Declaratory Judgment in an effort to quiet title. By Order of July 18, 1996, the Hillsborough County Probate Court ruled that the real estate at 25 Bow Street was an asset of Rita's estate. The court ordered the Administratrix to sell the property, distribute $8,000.00 of the sales proceeds to George, and distribute the balance of the proceeds equally among Rita's heirs. The court enjoined George from assuming occupancy of the residence.

George appealed this order to the New Hampshire Supreme Court. He raised three issues on appeal. First, he challenged the ruling that the divorce decree did not provide for a transfer of the real property held as joint tenants with right of survivorship and therefore could not destroy the surviving joint tenant's right to succession upon the death of his former spouse. Second, he challenged whether the divorce alone was sufficient to terminate the joint tenancy with rights of survivorship. Finally, he challenged the court's finding that the parties clearly intended to terminate their mutual rights of survivorship when they divorced. This last issue the parties' intent was of paramount importance. Ultimately, the court would decide this case by comparing the parties' intent at the time they entered into the joint tenancy ownership of the real estate with their intent at the time of their divorce.

Three years before the Croteaus divorced, in Mamalis v. Bornovas, the New Hampshire Supreme Court ruled that termination of a residential joint tenancy with rights of survivorship should be controlled by the parties' intentions.2 Louis Bornovas and Julie Bornovas had entered into a stipulation in contemplation of their divorce. Their agreement provided that their family home would be subject to equal division. The wife's share was to be paid to her either through a loan or by sale of the real estate, with the payment to be made or initiated within 30 days from the date of the hearing. Their decree of divorce was effective March 4, 1969, and shortly thereafter, Louis Bornovas undertook two unsuccessful attempts to secure a loan in order to pay the interest due to his ex-wife.

The parties nonetheless continued to live together until Louis Bornovas died on June 11, 1969. His estate asserted that the divorce and stipulation terminated the joint tenancy. Julie Bornovas asserted that the superior court ruled correctly that the joint tenancy survived the divorce, thereby vesting full title to the family home in her upon the death of Louis Bornovas.

The New Hampshire Supreme Court determined that just as intent is crucial in determining the creation of a joint tenancy, likewise the standard of intent should be applied in considering the termination of a joint tenancy. Accordingly, the New Hampshire Supreme Court abandoned the historical analysis of whether an act of a joint tenant destroyed one of the essential four unities of time, title, interest or possession, necessary in the creation of a joint tenancy.

While the New Hampshire Supreme Court noted decisions from other jurisdictions holding that divorce alone is insufficient to terminate a joint tenancy, the Court was critical of those decisions because they rested upon the "four unities" analysis.3 Other courts had reasoned that since a divorce between joint tenants does not destroy any of the four unities, it could not sever the joint tenancy. The New Hampshire Supreme Court disagreed, noting that such reasoning fails to recognize that husbands and wives normally take title as joint tenants because as a married couple, they intend that their survivor should have the family home. The New Hampshire Supreme Court then noted:

When the marriage is dissolved, the basic condition and consideration involved in the original decision to create the mutual survivorship rights - the marriage itself - is expressly, actively, and publicly terminated. The majority of persons severing their marital relationship very probably intend at least intuitively to simultaneously separate their respective property interests. A rule which would pass to the survivor after a divorce the half of the property belonging to the deceased ex-spouse would often vest the bulk of the estate in the survivor and would ordinarily be in direct contravention of the intent of the deceased.4

The Court held that the joint tenancy of Louis and Julie Bornovas was converted to a tenancy in common on the effective date of the divorce decree. According to the Court, the decree, along with the parties' stipulation, contemplated the absolute division of the joint ownership. Therefore, Louis Bornavas' one-half tenancy in common share passed upon his death to his heirs, rather than to Julie Bornavas.

Justice Grimes dissented. While he agreed that a divorce decree may dissolve a joint tenancy, he did not believe that the decree in the Bornovas case contained a "clear expression of intention" to accomplish that end. Noting that the parties took no action which affected title, Justice Grimes called the decree a "blueprint" of how the property was to be divided in the future, but found that the divorce decree itself did not affect the title. Since the parties never undertook the acts contemplated by the stipulation, Justice Grimes maintained that their failure to do so demonstrated their intention not to change the title.

On December 8, 1998, based upon the reasoning of Mamalis v. Bornovas, the New Hampshire Supreme Court issued three separate opinions in the case of the Estate of Rita L. Croteau v. George D. Croteau. Justice Horton, writing for the majority, noted the distinction between the Croteau case and the Mamalis case in analyzing the issue of the parties' intent. He noted that in Mamalis, the parties stipulated that their equity in the family home would be equally divided. He found no such overt stipulation or specific provision in the decree of the Croteau divorce. Justice Horton disagreed with the estate's arguments that subsequent pleadings filed by George Croteau demonstrated that the parties intended to dissolve the joint tenancy, or that the $8,000.00 allocation manifested the parties' intention to dissolve the joint tenancy.

The Estate had maintained that the divorce court could not have intended to ascribe the particular amount of $8,000.00 as solely dependent upon only sale or remarriage, with a different interest allocation to be accorded to George, defined by some other eventuality, such as the death of Rita.

The Supreme Court noted that the divorce decree specifically awarded other marital property, such as furniture, furnishings and the 1971 Cadillac. The court deemed the absence of a specific award of the marital home significant, especially where the divorce decree provided for "use" of the family home until a certain event. The Court held that in the absence of "an outright distribution" of the family home, the divorce decree did not reflect an in tent to sever the joint tenancy and the right of survivorship. Placing great reliance on the decree's clear and specific language, the majority opinion reiterated that Marital Masters "make final disposition of all property which is specifically in contention . . . ."5

Justice Johnson dissented, finding that where a divorce decree disposes of jointly held property "in a manner inconsistent with an intent to maintain a right of survivorship, we should construe the decree to provide for a severance of the joint tenancy."6 Emphasizing "the realities of modern divorce" Justice Johnson found the stipulation of the parties in Miller v. Miller7 to be significant. In the Miller case, the parties provided that their property would be held as joint tenants post-divorce, which the New Hampshire Supreme Court found to be unique because that "specific provision overrides the presumption that parties in a divorce situation usually desire to separate the respective property interests."8

Noting that the Croteau divorce decree did not specifically indicate whether the property would continue to be held as a joint tenancy or as a tenancy in common, Justice Johnson examined the structure of the property disposition. He found that it was inconsistent with a retention of joint tenancy rights in the marital estate as a whole, and therefore manifested an intention that George would not have any right of survivorship post-divorce. While the divorce decree provided that Rita could destroy the right of survivorship by either remarriage or sale, George could not unilaterally force a partition. Therefore, while Justice Johnson agreed that divorce would not universally sever joint tenancies in real estate, his interpretation of this divorce decree found an intention to sever the entire marital estate, including the family home, thereby terminating the right of survivorship.

Justice Broderick concurred specially with the majority opinion. While supportive of the majority's reasoning, Justice Broderick found that "it minimizes the reality of divorce and its intended impact on future relations between former spouses."9 Recognizing that when parties divorce they intend by the very nature of that process to separate their interests in property, Justice Broderick stated:

Although I stand by our precedent, I am persuaded that this intention would be better honored by a rule presuming that divorce severs joint tenancies held by husband and wife, unless there is a clear expression of their intent to the contrary.10

Citing legislation in Connecticut and Ohio, Justice Broderick encouraged the New Hampshire Legislature to consider an automatic severance rule, such as that found in the Uniform Probate Code. Following the decision, George took possession of the residence. He resolved the financial accountings with the Estate for the costs of the residence incurred after Rita's death and paid by the Estate. The Administratrix of the Estate, Deborah Magnon, had offered to resolve another accounting years earlier. She had offered to pay the $8,000.00 owed pursuant to the divorce decree, so that her mother could buy out George's interest. Rita declined the offer.

ENDNOTES

1.

See Beane v. Beane, 116 N.H. 259 (1976).

2.

See Mamalis v. Bornovas, 112 N.H. 423 (1972).

3.

See Summerlin v. Bowden, 240 So. 2d 356 (1970); Nichols v. Nichols, 168 N.W. 2d 876 (1969); Witzel v. Witzel, 386 P. 2d 103 (WYO.1963).

4.

Mamalis, 112 N.H. at 427-428.

5.

Estate of Rita L. Croteau v. George D. Croteau, 143 N.H. 177 (1998) ; Henderson v. Henderson, 121 N.H. 807, 810 (1981).

6.

Croteau, 143 N.H. at 183-187.

7.

Miller v. Miller, 133 N.H. 587, 592 (1990).

8.

Id.

9.

Croteau, 143 N.H. at 182-183.

10.

Id.

The Author

Attorney David S. Phillips is an associate with the firm of Devine, Millimet & Branch, Manchester, New Hampshire.

 

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