Robert W. Law v. Kimberly J. Law (2010)

MEMORANDUM OF DECISION RE POST-JUDGMENT MOTION TO OPEN AND ENFORCE, MOTION # 130

The parties seek to purchase the marital home located at 328 Main Street, Hampton from the other and to refinance the property in accordance with the judgment of November 28, 2006.   In the alternative, should the court order the sale of the property as provided in the judgment.

A hearing was held on September 9, 2009.   Both parties testified.   The plaintiff submitted the appraisal of Platt and Associates dated July 16, 2009 (Ex. 1) and a commitment letter for a mortgage loan, dated July 23, 2009 (Ex. 2).   The record closed on October 9, 2009, when the defendant filed her memorandum of law.

FINDINGS OF FACTS

The plaintiff, Robert W. Law and the defendant, Kimberly J. Law married on March 26, 1988.   They have three children, issue of the marriage.   The two eldest children are twins, born on August 26, 1988.   The youngest child was born on June 30, 1991.   At the time of legal separation on November 28, 2006, the youngest child was 15 years old and still in high school.   The twins had reached the age of majority at the time of the legal separation, but all of the children lived in the marital home with their mother.   The father resides on the premises in the garage.   The parties were ordered to share equally the expenses for the minor child.

The legal separation judgment allowed both parties to reside on the property and share expenses.   The defendant wife was granted exclusive use of the house and the plaintiff husband was granted exclusive use of the garage.

The separation agreement that was incorporated into the court's judgment provides, as follows:  “REAL PROPERTY.   The parties will continue to jointly own the marital home.   Upon the graduation of the youngest child from high school the house shall be listed for sale with an agreed upon real estate broker.   Either party may buy the other party's interest in the real estate at an agreed upon price before that occurs.   If the parties are unable to agree upon a price an appraisal shall be performed by Platt & Associates of Windham County and that appraised value will be controlling.   At the time of the sale or transfer and after payment of normal costs of closing, the Husband shall be entitled to be reimbursed for up to Twenty Five Thousand & no/100 ($25,000.00) Dollars for materials used to improve the garage and the Wife shall be entitled to be reimbursed for up to Five Thousand & no/100 ($5,000.00) Dollars for materials used to improve the house.   After these sums have been paid the proceeds of the sale shall be shared equally by the parties.”

The house has a current appraised value of $170,000 according to Pratt & Associates.   The property is encumbered by a mortgage that is approximately $197,878.00.   Additionally, the parties received a town grant in the amount of $9,463.00 that must be repaid to the town in the event of a sale of the property.   Therefore, there is no equity in the marital home.

Both parties testified at the hearing that they wanted to purchase each other's interest in the property.   They acknowledged that the value of the property is substantially lower than at the time of the judgment.   Accepting the appraisal, the property is “under water” and is worth substantially less than the encumbrances on the property.   The husband presented a conditional commitment letter for a mortgage loan.

The defendant resides in the marital home with two of the adult children.   She testified that she had been approved for a mortgage loan, but did not corroborate her testimony with proof of a mortgage commitment.

Additional facts will be discussed, as necessary.

DISCUSSION

Both parties testified that they want to purchase each other's interest in their marital home.   The plaintiff expressed his interest in purchasing the defendant's part before the defendant.   He appears to be capable of buying the defendant's interest, but if the real estate is worth $170,000 as indicated in the appraisal, he will be unable to obtain sufficient funds to pay off the two loans that encumber the property.   He testified that he would probably be able to subordinate the town loan to the new mortgage.   However, the judgment contemplates a payoff of all liens that the parties are liable for at the time of sale or transfer.   The plaintiff does not appear to have sufficient savings to make up the additional funds he would need to buy the house and relieve the defendant of liability for the liens.

The defendant wants to buy the house.   She did not express her wish to the plaintiff until the time of hearing.   She did not have a commitment letter from a lender as proof that she can purchase the home.   She testified that she has additional available funds to pay off the loans through an inheritance.   The defendant did not corroborate her testimony with proof that she has those funds available to buy the marital home.

The court concludes that the parties failed to establish by a fair preponderance of the evidence that they can buy the other's interest in the property.

Presently, both parties reside on the premises, she in the house, and he in the garage.   This arrangement has worked for the past three years.   The parties are paying the bills associated with the ownership of the property.   Dispossessing the parties by ordering a sale of the real estate will not further the ends of justice.   At the closing, each would be required to pay their share of loans owed by them.   The court is not convinced that the parties have the funds to pay their share of the loans.

The defendant's motion to open and enforce is denied for the reasons stated in this opinion.

BY THE COURT

Angelo L. dos Santos, J.

dos Santos, Angelo L., J.