Anania v. Anania

Page 830

576 N.W.2d 830

6 Neb.App. 572

Phil A. ANANIA, Appellant and Cross-Appellee, v. Linda M. ANANIA, Appellee and Cross-Appellant.

No. A-96-894.

Court of Appeals of Nebraska.

March 3, 1998.

Syllabus by the Court

1. Equity: Appeal and Error. In an appeal of an equitable action, an appellate court tries factual questions de novo on the record and reaches a conclusion independent of the findings of the trial court, provided, where credible evidence is in conflict on a material issue of fact, the appellate court considers and may give weight to the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another.

2. Judgments: Appeal and Error. When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling.

3. Partnerships: Words and Phrases. A partnership is an association of persons organized as a separate entity to carry on a business for profit.

4. Property. Voluntary payments for the benefit of another without a request cannot be recovered at law or ordinarily in equity, subject to the exceptions of mistake of law, coercion, or subsequent ratification by the party benefitted.

5. Property: Claims. The fact of a meretricious relationship does not bar claims to the property acquired during the period of such relationship where the claim is based on general principles of law without respect to a marital status.

6. Joint Tenancy. Joint tenants are seized of the whole estate and have an undivided share of the whole estate.

7. Joint Tenancy: Presumptions. The shares of interests of joint tenants are presumed equal.

8. Trial: Expert Witnesses. Triers of fact are not required to take opinions of experts as binding upon them.

9. Trial: Expert Witnesses. The determination of the weight that should be given expert testimony is uniquely within the province of the fact finder.

10. Partition: Joint Tenancy. Joint tenancy may be terminated or severed by any act which destroys one or more of its unities and may also be severed by the act of joint tenants in destroying unity of possession, as by partition.

11. Partition: Joint Tenancy. One common owner of property may partition the property as provided by Neb.Rev.Stat §§ 25-2170 through 25-21,111 (Reissue 1995).

12. Attorney Fees. It is the practice in this state to allow recovery of attorney fees only in such cases as are provided for by statute or where the uniform course of procedure has been to allow recovery of fees.

Steven J. Lefler, Omaha, for appellant.

James T. Boler, of Moore, Boler & McDermott, P.C., Omaha, for appellee.

HANNON, MUES, and INBODY, JJ.

HANNON, Judge.

Phil A. Anania and Linda M. Anania lived in a meretricious relationship for many years after their marriage was dissolved and, while doing so, bought a home in which they and their children lived. After the children went away to college, Phil brought this action seeking to have the court compel Linda to vacate the home and to quitclaim any interest she might have in that home to him. Linda counterclaimed, praying for an order determining her interest in the home and requiring Phil to pay her the value of that interest. The trial court determined that the value of Linda's interest was $21,036.66 and that she should have a lien in that amount, plus interest. The court ordered that if Phil did not satisfy Linda's lien in full by a certain date, the property was to be listed and sold.

Phil appealed, alleging that the trial court erred in finding that Linda had an interest in the home, in determining the fair market value of the home, and in failing to give him credit for the downpayment he made. We conclude that the parties were incorrect in trying the case as a marriage dissolution action, that the case must be tried on the basis of real estate law, and that, after a de novo review, the trial court did not abuse its discretion. We therefore affirm. However, we do modify that part of the order which requires the home to be listed and sold if Phil does not satisfy Linda's lien to provide that Linda shall have a judgment lien in the amount of $21,036.66, plus interest, which may be enforced as a judgment as provided by law.

PLEADINGS

In his petition, Phil alleged that after the parties had been divorced, they continued to live together to provide a "stable family home for the minor children"; that he purchased a home in which the parties and the children lived; that both parties purchased furniture, household goods, and vehicles; and that both parties incurred debts. He further alleged that the children had become emancipated and that he desired to become physically separated from Linda, to remain in the home which he purchased, to have Linda removed from the home, to have Linda be held responsible for her own debts, and to have Linda sign a quitclaim deed transferring her interest in the property to him. He additionally alleged that Linda had taken "certain personal items," which he desired to be returned to him. However, Phil did not describe or identify those items.

Phil prayed for an order compelling Linda to vacate the home, to sign a quitclaim deed transferring her interest in the property to him, and to take her physical possessions with her when she vacated the home. He also prayed for an order requiring both parties to be responsible for their own debts and for "temporary and restraining orders preventing [Linda] from transferring, encumbering, hypothecating, concealing, destroying or otherwise disposing of any real and personal property."

In her answer, Linda admitted that they had formerly been married but otherwise denied the allegations. Linda also filed a counterclaim alleging that the parties had divorced on August 3, 1983; that they continued to reside in their home until June 8, 1990, when they sold it; that on June 19, 1990, they acquired the home now in dispute; that pursuant to an "agreement" between them, the new home was to "take the place of the prior family residence"; that she paid for improvements and repairs to the home; and that she supplied a substantial number of hours of labor painting and refurbishing the home. She also alleged that since June 1990, pursuant to the parties' agreement, she has paid for food, furnishings, the majority of the costs of tuition and clothing for their children, and all other family expenses other than mortgage payments and utilities. Linda prayed for an order determining the value of the home and "other assets of the parties," determining each party's interest in the property, and requiring Phil to pay her the value of her interest in such property. Phil generally denied each of Linda's allegations.

SUMMARY OF RELEVANT EVIDENCE

The parties married in 1975 and divorced in 1983. In the divorce decree, Linda was awarded physical possession of the parties' twin children, date of birth February 29, 1976, and Phil was ordered to pay child support. After the divorce, the parties continued to live together as though married. In 1984, the court modified the decree by awarding the parties joint custody, with possession in Linda. The modification order also provided that child support payments were to stop and that the parties were "jointly responsible for all of the financial needs" of the children.

The record reveals that both parties had separate jobs and incomes. They kept their money, automobiles, and all property separate, except for the home and perhaps its furnishings. They do not agree on what expenses each of them had agreed to pay or, in fact, did pay toward the support of the children and the household. Phil testified that they agreed that she would buy the family's groceries and other incidentals and that he would make all other major payments, including house mortgage payments, utilities, and "most of the large cash purchases." Phil stated that they had agreed that she would buy anything under $75 and that he would buy anything over $100. Linda testified that although Phil paid the house payments and utilities, she paid other home improvements, maintenance, expenses for the children, clothing, and food. There is no testimony establishing that either party ever demanded reimbursement for any expenses he or she paid. However, the record does establish that the parties gave each other gifts and maintained the appearance of still being married before their children, family, friends, and business associates.

After the divorce, the parties continued to live in the marital home until 1990, when they sold it and equally divided the equity of approximately $15,000. The parties then bought and moved into the home which is the subject of this action. It is clear that both parties regarded the new home as a desirable improvement in the family's living arrangement. The parties agreed on its purchase, and the home was conveyed to them as joint tenants with rights of survivorship. The evidence does not establish the cost of the new home with the clarity that such facts are usually established; however, it was, according to Phil, approximately $149,300. Phil paid the $46,175.22 needed as a downpayment and for closing costs. The balance of the purchase price was financed by a mortgage on the home, which both of them signed. The evidence does not show the amount of that mortgage, but it would necessarily have been approximately $103,000. Phil also paid all of the monthly mortgage payments and the insurance premiums on the home.

Phil testified that when they were

in front of a realtor signing agreements [to purchase the home] I said to [Linda] I would really like to enter the same type of agreement that Rose and I and Tom and I had. And, in fact, the fact I'm putting down $50,000 now for this, and for any reason we try to sell this place, I'd like my $50,000 back. And if there's any equities left, then we'll split it. And she said, fine. It wouldn't be any problem.

On the other hand, Linda testified that she and Phil never...