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IN THE TERRITORIAL COURT OF THE VIRGIN ISLANDS DIVISION OF SAINT CROIX PATRICIA HENRY, ) ) Plaintiff, ) CIVIL NO. 905/1992 ) VS. ) ) ACTION FOR PARTITION ASHFIELD SKEPPLE, ) ) Defendant. ) _) GEORGE W. CANNON, JR., Esquire 71-E Smithfield Fredericksted, St. Croix U.S. Virgin Islands 00841 (809) 772-4444 (Attorney for Plaintiff) MARTIAL A. WEBSTER, Esquire Law Office of Martial A. Webster 298 Peter’s Rest, Suite 10 Christiansted, St. Croix US. Virgin Islands 00820 (809) 773-7577 (Attorney for Defendant) CABRET, Judge NOT FOR PUBLICATION MEMORANDUM OPINION AND ORDER (December VA , 1996) THIS MATTER is before the Court on plaintiff's motion for partition of Plot No. 213 of the Estate Sion Farm Housing Development (“Plot No. 213”). Skepple v. Henry Civil No. 905/1992 Memorandum Opinion and Order STATEMENT OF FACTS AND PROCEDURAL HISTORY Plaintiff, Patricia Henry (“Ms. Henry”), and defendant, Ashfield Skepple (“Mr. Skepple”), were married on August 16, 1974 and divorced on November 20, 1982.' In early November 1981, plaintiff approached her husband about purchasing a home, but he was not in favor of the purchase because of difficulties in the marriage. While defendant was away in Antigua, plaintiff borrowed $5,000.00 from her father and withdrew approximately $1,600.00 from her and defendant’s joint account. On November 9, 1981, while defendant was still in Antigua, plaintiff paid the initial deposit of $4,000.00 on Plot No. 213 Sion farm. Then on February 1; 1982, the parties purchased said property for the sum of $15,000.00.? The property was purchased in both parties’ names. They assumed the seller’s $111.00 monthly mortgage with Banco Popular de Puerto Rico, and defendant subsequently repaid plaintiff's father in full for the $5,000 loan. The parties never occupied Plot No. 213 Sion Farm as their marital homestead.’ During the marriage, and even after the divorce, the parties resided at Building 5, Apartment 186 Harbour View Apartments, Christiansted, St. Croix. Defendant alleges that before the divorce, he spent approximately $10,000.00 to renovate the Sion Farm property in order to make it suitable for habitation. Plaintiff, however, ? The Amended Final Decree of Divorce was signed on December 20, 1982. See Plaintiffs Exhibit 11. * Plaintiff s Response to Request for Production of Documents (Exhibit 1: Purchase Agreement at 1). + “Homestead” is defined as “the abode including land and buildings, owned by, and actually occupied by, a person, or by members of his family free of rental charges.” 33 V.LC. §2305(a). Skepple v. Henry Civil No. 905/1992 Memorandum Opinion and Order claims that defendant’s contribution to the pre-divorce renovations did not exceed $4,000.00. After the pre-divorce renovations were completed, the property was rented to plaintiff's parents for $211.00 per month.’ This tenancy lasted approximately eleven (11) months with a collected total rent of $2,321.00. Defendant contends that he used the rent he collected monthly to pay the mortgage, and that he did not keep the difference between the rent and the mortgage for his personal use. Instead, he often made double payments on the mortgage. Following the parties’ divorce, defendant gave plaintiff's father written notice to vacate Plot No. 213 Sion Farm indicating his intent to have the premises for his own use.° Plaintiff's parents vacated the premises and plaintiff and her three (3) minor children moved into No. 213 Sion Farm. Plaintiff then assumed responsibility for payment of the balance on the mortgage. Defendant’s last payment on the mortgage was made on or about February 1983. Since the property could not be partitioned as part of the 1982 divorce action as it was not the “marital homestead” of the parties, plaintiff filed this action for partition on September 2, 1992 requesting that judgment enter partitioning Plot No. 213 Sion farm according to the rights of the respective parties or as determined after an accounting of the parties’ expenditures. Subsequent to filing this action, plaintiff made considerable repairs and improvements to the property. Defendant did not, nor does he now, dispute partition, but he seeks to be awarded a one half (‘4) interest in said property. * See Plaintiff's Exhibit 8. > See Defendant’s Trial Exhibit 5 Skepple v. Henry Civil No. 905/1992 Memorandum Opinion and Order DISCUSSION Partition is the division between several persons of property which belongs to them as co-owners. Black’s Law Dictionary 1119-1120 (6th ed. 1990) citing O’Brien v. O’Brien, 89 Misc. 2d 433, 391 N.Y.S. 2d 502, 503 (Supreme Court, Oneida County 1976). The fundamental objective in a partition action is to divide the property so as to be fair and equitable and confer no unfair advantage on any of the co-tenants. 59A AM JUR. 2D Partition §6 (1987) citing Blonquist v. Frandsen, 694 P.2d 595, 596 (Utah 1984). The first objective in a partition action is to ascertain the manner in-which the parties hold the property. Where property is purchased during a marriage, each spouse owns the property as a tenant by the entirety. Upon divorce, however, the property held by the entirety automatically becomes a tenancy in common. 28 V.LC. §7(d); See also Todman v. Todman, 15 V.I. 518, 524 (3d Cir. 1978). The interest of each divorced spouse in the property is presumed to be an undivided one- half share. Creque v. Creque, 19 V.I. 408, 415 (Terr. Ct. 1983). To rebut this presumption that each tenant in common holds a 50% interest, a party may present “evidence showing the source of the actual cash outlay at the time of acquisition,...unequal contribution by way of money or services, unequal expenditures in improving the property or freeing it from encumbrances and clouds, or other evidence raising inferences contrary to the idea of equal interest in the joint estate.” Sebold v. Sebold, 444 F.2d 864, 872 (D.C. Cir. 1971), citing Jezo v. Jezo, 127 N.W.2d 246, 250 (Wis. 1964). Plaintiff contends that she should be awarded total ownership of Plot No. 213 Sion Farm, and defendant should receive $10, 615.50 for his equity in the property. Defendant claims that plaintiff has the burden of rebutting the presumption that the property should be divided equally Skepple v. Henry Civil No. 905/1992 Memorandum Opinion and Order between tenants in common, and that she has failed to meet that burden. Defendant also contends that plaintiff did not make improvements to Plot No. 213 in good faith, and consequently, she should not be allowed any credit for the money she spent in improving the property. Finally, defendant argues that plaintiff is liable to defendant for rent for the period she resided at Plot No. 213 Sion Farm. The property sought to be partitioned was appraised in June 1992 as having a fair market value of $65,000.00. Subsequently, in January 1994, the same appraiser valued the property at $83,000 based upon improvements to the plot. The parties offered into evidence the appraisal value of the property coupled with the fact that no monies are owed on the property. Hence, the parties’ net equity in the property is $83,000. During plaintiff's tenancy she spent substantial sums to maintain and improve the property. Plaintiff submitted receipts of mortgage payments ($9,537.13), and receipts for materials and labor ($31,069.34) totaling approximately $40,606.47.’ Accordingly, the Court shall credit plaintiff with her contribution of $40,606.47 in substantiated mortgage payments, and the costs for materials and labor in improving the property. Defendant contends that he is entitled to rental income for the period that plaintiff has lived at Plot No. 213 Sion Farm as a result of being ousted from said premises by the plaintiff. © Plaintiff's exhibits 4 and 5. 7 Plaintiff asserts that the amount paid in satisfaction of the mortgage was $17, 355.00. However, plaintiff has not presented any evidence which would substantiate her assertion that she paid $17,355.00. She has only proved mortgage payments totaling $9,537.13 evidenced by receipts. Skepple v. Henry Civil No. 9305/1992 Memorandum Opinion and Order Specifically, defendant argues that the immediate occupation of Plot No.213 by plaintiff and her | three children upon plaintiff's learning of defendant’s intention to reside at the premises constituted an ouster. The evidence presented does not support defendant’s argument of an ouster. The common law rule “which prevails in the majority of jurisdictions, founded on the plainest principles of property ownership, is that, absent statute construed to work a different result, a tenant in common...who has enjoyed occupancy of the common premises or some part thereof is not liable to pay rent to the others therefor, or to account to them respecting the reasonable value of his occupancy, where they have not been ousted...” 51 A.L.R. 2d 388,413 (1957); See Barrow v. Barrow, 527 So.2d 1373 (Fla. 1988). The occupancy of one tenant in common does not in and of itself make the occupant liable to the co-tenant for rent of the premises. Olivia v. Olivia, 523 N.Y.S. 2d 859, 860 (A.D.2 Dept. 1988). Possession of a tenant in common is presumed to be the possession of all tenants until the one in possession communicates to the other the knowledge that he or she claims the exclusive right or title, and there can be no holding adversely or ouster by the cotenant in possession unless the adverse holding is communicated to the other.” Barrow, 527 So.2d at 1377 (emphasis added). In this case, as in Barrow, animosity between the parties does not constitute an ouster and absent any evidence that the plaintiff communicated to defendant her intention to exclude defendant from the premises or to claim exclusive right or title to the property, the defendant has failed to make a claim for ouster. However, it is an established principle of law that when a cotenant in possession seeks contribution for amounts expended in the improvement or preservation of the property, his Skepple v. Henry Civil No. 3905/1992 Memorandum Opinion and Order claim may be offset by the value of his or her use of the property which has exceeded his or her proportionate share of ownership.” Phaire v. Phaire, 24 V.I. 311 (D.C.V.I. 1989); See 51 ALL.R. 2d 388, 395 (1957). It is clear that, under this exception, defendant is entitled to claim the reasonable rental value solely as an offset against the amount plaintiff claims for the costs of maintaining the property. However, defendant has submitted no evidence of the fair rental value of the property. In response to this concern expressed by the Court during trial, defendant argues that the amount plaintiff's parents paid in rent is the best evidence of the fair rental value. Defendant testified that plaintiff's parents rented the property for $211.00 per month. Accordingly, we will credit defendant with 50% of the rental income, or $15,192.00, that would have been received over the twelve (12) year period plaintiff resided at Plot No. 213." Defendant submitted proof of his mortgage payments totaling $951.18 and rent collected in the amount of $2,321.00. Because defendant paid the mortgage payments out of the rent collected from plaintiff's parents, the Court will subtract the defendant’s mortgage payments ($951.18) from the collected rental income ($2,321.00) and distribute the remaining amount ($1,369.82) equally among the parties. Accordingly, plaintiff and defendant shall each be credited with approximately $685.00 as their share of the rent collected from plaintiffs parents. Additionally, plaintiff has testified that she withdrew $1,600 from her and defendant’s joint bank account which she used to pay the initial deposit of $4,000 on Plot No. 213. Thus, the Court will 2 Rent at $211.00 monthly for 12 years totals $30,384.00. Of this amount, $15,192.00 shall be credited to defendant. * Defendant’s Exhibits 1 through 4. Skepple v. Henry Civil No. 3905/1992 Memorandum Opinion and Order credit both parties with $800.00 as their respective contributions from their joint account. Finally, the Court shall credit defendant with $5,000 representing defendant’s repayment in full to plaintiff's father for the $5,000 loan. Based upon the foregoing, defendant’s total contributions in the property therefore amount to $21,677.00." Thus, based upon the $83,000 appraisal value of the property, the Court shall award defendant with a twenty-six percent (26%) interest in the property and award the remaining seventy-four percent (74%) interest to plaintiff. The manner in which each party shall receive their respective interest is as follows. First, plaintiff shall have the right to exercise the option of buying out defendant’s interest in the property. If plaintiff fails to buy out defendant’s interest within one hundred-twenty (120) days from the date of entry of this order, then defendant shall be given the right to buy out plaintiff's interest within one hundred-twenty (120) days from the expiration of plaintiff's 120 days. If defendant fails to buy out plaintiffs interest, then the property shall be immediately listed for sale. Both parties shall diligently and in good faith take such steps as are necessary to facilitate the sale of the property. An offer to purchase will not be binding until accepted by both parties and either party shall have the right to compel the other party to accept a reasonable offer to purchase. Once the property is sold, seventy-four percent (74%) of the net proceeds of the sale shall go to plaintiff, Patricia Henry, and the remainder, twenty-six percent (26%), to defendant, Ashfield Skepple. 10 Specifically, the Court credits defendant with a) rental income in the amount of $15, 192.00 during plaintiff's sole occupation of the premises for a 12 year period; b) rental income in the amount of $685.00 which was collected during plaintiff's parents’ tenancy of Plot No. 213; c) $5,000.00 representing defendant’s loan repayment in full to plaintiff's father; and d) $ 800.00 representing defendant’s share of the $1,600 that plaintiff withdrew from the parties’ joint account to make an initial deposit on the purchase price for Plot No. 213. Skepple v. Henry Civil No. 905/1992 Memorandum Opinion and Order CONCLUSION The plaintiff has successfully rebutted the presumption that she and the defendant, as tenants in common of Plot No. 213, should be awarded equal interest in this action for partition. Equity demands that plaintiff should be awarded a greater interest in the property by virtue of the fact that she made the greater contributions to the property’s purchase and improved and maintained the property. However, the Court recognizes defendant’s contributions, particularly during the time when the property was initially purchased, and shall credit defendant with $21, 677.00 representing his financial contributions to Plot No. 213. Based on Plot No. 213's net equity-value of $83,000, defendant’s contributions constitute a 26% interest in said property. The Court shall credit plaintiff with the remaining 74%, or $61, 323.00, in the property. Litt dilferl we Territorial a Judge