Benjamin Govotski v. Karen Morrissey (2011)

MEMORANDUM OF DECISION

This action arises out of a failed romance between the plaintiff, Benjamin Govotski, and the defendant, Karen Morrissey.   Over a period of almost three years the parties purchased a house together (“the home”) and entangled their finances to such an extent that the plaintiff has sought the court's assistance to separate them.   The case was tried to the court on April 6, 2011.

In the first count of the complaint the plaintiff alleges that, pursuant to the terms of the joint venture agreement, he has made demand that the defendant agree to list the property for sale, but that the defendant had refused to do so in breach of the joint venture agreement.   In the second count the plaintiff alleges that he purchased an engagement ring for $20,607 and gave it to the defendant conditional upon marriage.   Now that the marriage will not take place, the plaintiff seeks the return of the ring or the payment of its current value as damages.   In the third count the plaintiff asks that various personal property bought together by the parties be sold and the proceeds split in such a way that reflects the contributions of the parties.

The defendant has filed a counterclaim.   The first count of the counterclaim mirrors the first count of the plaintiff's complaint.   The second count seeks the return of personal property, including a dog, removed from the home by the plaintiff.   The third count seeks damages for misrepresentation.

The parties began their romance in the March of 2007 when the plaintiff moved into the defendant's condo in Terryville.   The plaintiff shared the grocery bill but paid no rent.   In June of 2007 the parties purchased a 2007 BMW automobile to be driven by the defendant.   In order to pay the purchase price, the plaintiff contributed approximately $28,000 from his checking account and the parties financed the balance.   Within a few months the defendant was involved in a motor vehicle collision which caused the total destruction of the BMW. In September 2007 the parties used the proceeds from an insurance settlement to help purchase an almost identical BMW for nearly the same price.   The parties took a new loan for $32,109.80, and the plaintiff provided $1,778.88 to make up the balance of the purchase price.   Subsequently, the defendant paid off the new loan when her condominium sold.   Although the car is registered jointly, the defendant has always been the exclusive driver.

In July 2007 the parties purchased the home at 51 Coventry Lane in Harwinton.   Title was taken jointly with rights of survivorship.   At the insistence of the plaintiff, the parties entered into a written joint venture agreement to govern their joint ownership of the home.   The agreement provides that the parties will contribute equal sums of money toward the purchase, will use the home as their residence, and will equally share the costs of maintenance, property taxes, homeowner's insurance, utilities, and any other usual and customary costs of home ownership.   The parties took a joint mortgage loan, the plaintiff made a cash contribution, and the defendant borrowed $30,000 from the plaintiff's parents to put toward the purchase price.   The defendant paid back the $30,000 when she subsequently sold her condominium.

In December 2008 the parties agreed to marry.   The defendant received an engagement ring which had been purchased for $20,607 with funds from a joint checking account.   The joint account was funded from the paychecks of both parties.   The parties resided together in the home until January 2010 when the plaintiff moved out and went back to live with his parents.   There was no evidence that the plaintiff was forced to leave or was even asked to leave.   Since the plaintiff left, the defendant has paid all of the utility expenses of the home as well as all maintenance expenses.   The parties have continued to share, on an equal basis, the mortgage, real estate taxes and home owner's insurance.   The parties are in general agreement that the home should be sold and that the net proceeds divided equally after payment of the balance on the mortgage.   Disagreement arises over how to handle the utility and maintenance expenses which have been incurred by the defendant since the plaintiff vacated the property, and to account for the fact that the defendant has had exclusive occupancy of the home since the plaintiff left.   The plaintiff proposes that the defendant have sole responsibility for the utility and maintenance expenses incurred while the defendant has had sole occupancy, and that the defendant pay one-half of the monthly mortgage payment to him to reimburse him for that use and occupancy.   The defendant proposes that the plaintiff reimburse the defendant for all of the utility and maintenance expenses she has paid since the plaintiff went back to his parents.

Resolution of the disagreements about the home must occur by applying the terms of the joint venture agreement.   That agreement clearly specifies that all expenses associated with the home are to be borne equally.   Although the agreement states that the joint venture was formed for the parties “to use such property as their respective residence ․” there is no requirement that both parties live in the home in order for the terms of the agreement to apply.   Nor was there any evidence that the defendant took any legal action to force the plaintiff from the home.   He left of his own volition after the engagement ended.   But, the end of the engagement was not the end of the business relationship created by the joint venture agreement.   The agreement does not provide for the payment of use and occupancy.   Because the parties agreed to share all utilities and maintenance, the defendant should be reimbursed for one-half of the utility and maintenance expenses which the defendant has paid since the plaintiff left the home to return to his parents.   In addition, the plaintiff should be equally responsible for these expenses until the home is sold.

The BMW issue was hotly contested.   Although the history of the two vehicles is complicated, the plaintiff's documentary evidence is persuasive.   There is no question that the plaintiff contributed $28,116.94 toward the purchase of the first car and that this flowed into the purchase of the second car because it provided equity which was replaced by the insurance proceeds.   He also contributed $1,778.88 at the purchase of the second car.   It is also clear that the defendant paid off the second loan in the amount of $32,109.82.   Therefore, both parties have money invested in this car.   However, it is also clear that the BMW was intended by the parties to be driven exclusively by the defendant.   The plaintiff proposes that the car be taken off the road immediately and sold with the proceeds being divided equally.   The defendant proposes that she keep the car with no payment to the plaintiff.   Neither of these proposals is fair.   The equitable way to handle this problem is to have the title to the car transferred to the defendant so that she can continue to use it subject to an obligation to pay the plaintiff for his contributions to the car at time the house is sold.   The plaintiff's total contribution was $29,895.82.   This sum shall be paid from the defendant's share of the net proceeds from the home when it is sold.

The next issue is a boat, motor and trailer which were paid for from the joint account and from joint financing in the amount of $35,869.80.   Since the plaintiff went back to his parents in January 2010, he has had exclusive use of the boat and has paid the loan payments of $597.83 per month.   The plaintiff claims that there is no equity in these items.   He requests that he be allowed to keep the boat as his sole property and that he take over the loan and hold the defendant harmless.   The evidence concerning the value of the boat, motor and trailer leads to the inescapable conclusion that there is no equity for the parties.   There is merit in the plaintiff's proposal that he take title to the boat and assume full responsibility for the balance of the loan.

The next item of personal property which merits special attention is the dog, Moose, f/k/a Bodie.   The parties adopted Moose as a rescue dog at about the time that the defendant was recuperating from her auto accident.   The parties also adopted the dog, Boomer.   When the plaintiff returned to his parents he took Moose with him and left Boomer with the defendant.   The plaintiff attempted to prove that Moose was his dog, and the defendant attempted to prove that Moose was her dog.   This evidence was unconvincing.   The court concludes that both Boomer and Moose were adopted jointly by the parties.   The parties are very emotional about the dogs.   The plaintiff proposes that he keep Moose and that the defendant keep Boomer.   The defendant proposes that she keep both dogs.   The only fair way to deal with this emotional issue is to leave the dogs where they are:  Moose with the plaintiff, and Boomer with the defendant.

Next, the court must consider the issue of the engagement ring.   The plaintiff relies on Superior Court authority adopting the “modern” “no fault” rule that once an engagement is broken, the engagement ring should be returned to the donor, regardless of fault.   Thorndike v. Demirs, Superior Court judicial district of Waterbury, Docket No. 05–5000243 (July 26, 2007) [44 Conn. L. Rptr. 30].   But, this rule does not apply in this case.   The plaintiff did not prove that he paid for the ring and gave it to the defendant.   The court finds, as a fact, that the ring was purchased with funds from the joint account.   Although both parties claim to have provided more than one-half of the funding for that account, these claims are rejected as unproven by a fair preponderance of the evidence.   Therefore, anything paid for with funds from the joint account is presumed to be owned jointly.   Under these facts, the ring must be sold and the proceeds split equally.

The other personal property issues are not easily untangled.   If there ever were a case to illustrate the hazards of unmarried couples co-mingling their finances, this is it.   The parties bought a large amount of personal property which was the subject of conflicting testimony at trial.   For the most part, these items were purchased with a joint checking account.   There are eleven items of personal property which the plaintiff proved were purchased with his own funds, prior to the establishment of the joint account.   But, the court draws the reasonable inference that all of these items were gifted to the parties jointly as part of the home venture.   They will all be treated as joint property with the exception of the lawn equipment owned by the plaintiff's business which the plaintiff took with him when he left.

The court issues the following orders:

1. The parties shall sell the home in its “as is” condition.   The parties may agree to make repairs or improvements to the property, in which case, the cost of the repairs and/or improvements shall be divided equally by the parties.   If the parties do not agree, then no repairs or improvements shall be made.   The parties shall list the home for sale with a mutually agreeable listing broker at a mutually agreeable listing price.   The court shall retain jurisdiction to resolve any and all issues involving the listing and sale of the home.

2. The parties shall share equally in the payment of the mortgage, real estate taxes and home owner's insurance, homeowner's association costs, and utility and maintenance expenses in accordance with the joint venture agreement.   At the time of closing the plaintiff shall reimburse the defendant for his 50% share of all utility and maintenance expenses which have not been paid at that time.

3. The plaintiff shall transfer his interest in the BMW automobile to the defendant.   At the closing of the home the defendant shall pay $29,895.82 to the plaintiff from her share of the net proceeds from the sale of the home.

4. The defendant shall transfer her interest in the boat to the plaintiff.   The plaintiff shall assume responsibility for payment of the loan on the boat and shall indemnify and hold the defendant harmless from any liability for that loan.

5. The engagement ring shall be sold in a manner agreeable to both parties.   The proceeds from the sale shall be divided equally.   The court shall retain jurisdiction of any disputes regarding the sale.

6. Each party shall retain ownership of the dog in their possession.

7. All other items of personal property located at the home which have not been specifically dealt with by this order are found to be joint property.   The parties shall agree on which items should be sold with the home, which items should be sold at a tag sale or other method of sale, and which items shall be divided between the parties on an equitable basis (50% to each party).   The court will retain jurisdiction over any disputes regarding the sale or division of personal property.   However, before submitting any dispute to the court, the parties must engage in mediation with a mediator to be selected and paid for by the parties on an equal basis.

BY THE COURT,

John W. Pickard

Pickard, John W., J.