Zealand v. Balber

205 Conn.App. 376

257 A.3d 411

Elise ZEALAND

v.Scott BALBER

AC 43650

Appellate Court of Connecticut.

Argued April 12, 2021

Officially released June 22, 2021

James C. Riley, Greenwich, with whom were Trevor J. Larrubia and, on the brief, Thomas P. O'Connor, Greenwich, and John M. Hendele IV, for the appellant (plaintiff).

Ari J. Hoffman, Bridgeport, for the appellee (defendant).

Elgo, Cradle and Harper, Js.

ELGO, J.

The plaintiff, Elise Zealand, appeals from the judgment of the trial court in this partition by sale action. On appeal, the plaintiff claims that the court improperly (1) concluded that she had a minimal interest in the property at issue, (2) excluded certain evidence that she sought to admit at trial, (3) exceeded its statutory authority under General Statutes § 52-500 (a) and (4) concluded that a payment of $25,000 by the defendant, Scott Balber, to the plaintiff constituted just compensation for her interest in that property. We affirm the judgment of the trial court.

In its September 23, 2019 memorandum of decision, the court found the following relevant facts. The parties "are attorneys who practiced law in New York and who had a common background in civil litigation. ... The parties first became socially acquainted in 2007 .... They began dating. ... In 2008, the defendant ... began living with the plaintiff. In 2010, the parties had a child together.

"At or about the same time, the defendant proposed marriage to the plaintiff and gave her a diamond ring. The plaintiff accepted the ring in contemplation of marriage, but the marriage never occurred. The plaintiff wanted the financial security she felt that the defendant could provide, but, at the same time, she had misgivings about marrying him. The defendant never truly pressed the situation, and he gave the plaintiff a large part of the financial security she wanted. After the birth of their child, the plaintiff left her employment. She continued as the child's primary caregiver. The defendant was the sole source of support for the plaintiff and their child. The defendant also funded and regularly contributed to a joint checking account which was used by the plaintiff and himself.

"In December, 2012, the parties purchased a home at 112 Hillspoint Road in Westport [Westport property]. It was intended to be a ‘getaway’ or ‘country home.’ It was to accommodate the parties and their own child, and also the defendant's two [older] children when he had visitation with them. The closing price was $1.16 million. Title to the [Westport] property was taken by the parties as tenants in common. It was financed with a mortgage for $925,000.¹ The equity needed to close, $235,000, and the closing costs ... were completely funded by the defendant. The costs to carry the [Westport] property (i.e., payments on the mortgage, taxes and insurance) have been approximately $5300 per month, and utilities and regular property maintenance costs have been approximately $8000 per month. These amounts, too, have been funded solely by the defendant's earnings.

"The parties made improvements and repairs to the [Westport] property. The plaintiff was generally ‘onsite’ more regularly than the defendant, so she arranged for or managed many of these [repairs]. Also, in addition to customary and necessary home furnishings, the parties purchased certain artwork. One of the pieces was referred to as a ‘Punching Bag’ by Jeffrey Gibson. ... The defendant had a particular interest in the item, and he purchased it from a dealer with whom he had a close relationship. The dealer waived his customary markup, leaving the defendant to pay $36,000 for this piece. The plaintiff claims that it is worth ‘well into the six figures.’ She bases that upon the fact that the piece was loaned out to a gallery for exhibition and on her opinion that the artist's career was on the rise. The court does not find that the plaintiff's valuation is credible. Moreover, there was no reliable valuation by either party for other home furnishings. Finally, the court finds that, at the time of trial, the fair market value of the [Westport] property was approximately $1.2 million, and the mortgage debt was approximately $765,000.

"In the court's view, the relationship between the parties has been precarious. The tone and demeanor of each of the parties to one another during the trial corroborated this. The parties used [the Westport property] on the basis stated previously for not quite four years. In mid-2016, the plaintiff and the parties’ child moved out of the [Westport] property. The defendant locked its doors. The plaintiff sold the diamond ring, which had been purchased by the defendant for $70,000, for $18,000. She retained the proceeds of the sale." (Footnote in original.)

On November 13, 2017, the plaintiff commenced this action seeking a partition by sale of the Westport property and the punching bag artwork.² In response, the defendant filed an answer accompanied by two special defenses.³ A court trial was held over the course of three days, at which both parties testified.⁴

In its subsequent memorandum of decision, the court found that "[i]t is beyond dispute that the defendant was the sole source of providing the moneys to purchase the [Westport] property, to make improvements, to purchase furnishings, artwork and other artifacts, and to carry the mortgage debt and other property expenses. However, the plaintiff assisted in several ways. She worked with a broker to find the property, she followed up on matters for mortgage funding and she handled some preclosing inspections. After the closing, she was responsible for making arrangements for many repairs and for purchasing general furnishings. Both parties had a hand in identifying possible purchases." The court further found that the plaintiff had a "relatively minimal interest [in the property at issue] compared to that of the defendant. ... [T]he plaintiff can receive an equitable and just compensation for that interest by means of a payment from the defendant, and ... a sale is not necessary and would not better promote the relative interests of the plaintiff and of the defendant. This is not a situation that demands a sale of these assets. There appears to be ample equity in the [Westport] property. A sale would carry with it attendant costs and expenses. A court-ordered sale would also likely signify that it is being sold under ‘distress’ conditions, which would most likely result in a lower price than one achieved on an open market. In the court's view, a lump sum payment to the plaintiff would equitably compensate her and would allow the defendant to control the retention or disposition of these assets without unnecessary penalty to him." The court thus ordered in relevant part that "the defendant shall have sole right, title [to] and interest [in] the [Westport] property, and to all furnishings and artwork therein .... The plaintiff shall have sole right, title [to] and interest [in] the diamond ring or to any proceeds from its sale. ... The defendant shall pay the plaintiff the sum of $25,000 at the time of the plaintiff's transfer to the defendant of the plaintiff's right, title [to] and interest [in] the [Westport] property."

The plaintiff thereafter filed a motion to reargue, which the court granted, "limited to [the] claim that, under the present orders of the court, she continues to remain an obligor on the mortgage note, and what relief, if any, should be extended to her incident thereto." Following a hearing on October 29, 2019, the court entered a set of corrected orders that obligated the defendant, inter alia, to "complete a sale, a refinance or a like transaction that results in the satisfaction of the note and the recording of the lender's release of the mortgage deed such that [the] plaintiff bears no liability or exposure on or arising under said documents ...." The court also ordered the plaintiff to tender a quitclaim deed to the defendant, after which the defendant was required to make the previously ordered payment to the plaintiff in the amount of $25,000. The court rendered judgment accordingly, and this appeal followed.

As a preliminary matter, we note certain well established principles. "The right to partition has long been regarded as an absolute right, and the difficulty involved in partitioning property and the inconvenience to other tenants are not grounds for denying the remedy. No person can be compelled to remain the owner with another of real estate, not even if he become[s] such by his own act; every owner is entitled to the fullest enjoyment of his property, and that can come only through an ownership free from dictation by others as to the manner in which it may be exercised. Therefore the law afford[s] to every owner with another relief by way of partition ...." (Internal quotation marks omitted.) Fernandes v. Rodriguez , 255 Conn. 47, 55, 761 A.2d 1283 (2000). The statutory authority for "the power of our courts to order a sale in partition proceedings was enacted in 1844.... The early decisions of this court dealing with the new statutory remedy of partition by sale emphasized that [t]he statute giving the power of sale introduces ... no new principle; it provides only for an emergency, when a division cannot be well made, in any other way. ... [A] sale of one's property without his consent is an extreme exercise of power warranted only in clear cases." (Citations omitted; internal quotation marks omitted.) Id., at 56–57, 761 A.2d 1283.

The authority to order a partition by sale is codified in § 52-500 (a), which provides: "Any court of equitable jurisdiction may, upon the complaint of any person interested, order the sale of any property, real or personal, owned by two or more persons, when, in the opinion of the court, a sale will better promote the interests of the owners. If the court determines that one or more of the persons owning such real or personal property have only a minimal interest in such...