MAINE SUPREME JUDICIAL COURT                                                   Reporter of Decisions
Decision: 2020 ME 24
Docket:   BCD-19-115
Argued:   September 26, 2019
Decided:  February 25, 2020

Panel:      SAUFLEY, C.J., and MEAD, GORMAN,* JABAR, and HUMPHREY, JJ.**
Majority:   SAUFLEY, C.J., and MEAD, GORMAN, and HUMPHREY, JJ.
Concurrence/
  Dissent: JABAR, J.



                                  REBECCA W. BELANGER

                                                 v.

                                         LISA M. YORKE


GORMAN, J.

        [¶1] Rebecca W. Belanger (Belanger) and Lisa M. Yorke (Yorke) each

claim to have taken title to a piece of property by way of a deed delivered to her

by Brad Belanger (Brad). Brad deeded the property to his daughter, Yorke,

before he deeded it to his wife, Belanger, but Belanger recorded her deed before

Yorke recorded hers. As the trial court (Business and Consumer Docket,

Mulhern, J.) explained, “[t]his is a case about a piece of real property that a man




   *
    Although not available at oral argument, Justice Gorman participated in the development of this
opinion. See M.R. App. P. 12(a)(2) (“A qualified Justice may participate in a decision even though not
present at oral argument.”).

   ** Although Justices Alexander and Hjelm participated in the appeal, they retired before this
opinion was certified.
2

inherited from his parents and seems to have conveyed to both his wife and his

daughter (his wife’s stepdaughter) at different times during his life. . . . Both

women now claim exclusive title to the property, and have sued each other for,

inter alia, a declaratory judgment to that effect.”

      [¶2] The complex procedural history of this case includes cross-motions

for partial summary judgment and, later, a request for judgment based on a

stipulated record; both of these decisions are currently before us. In ruling on

the summary judgment motions, the court concluded “as a matter of law” that

33 M.R.S. § 480, which requires the signature of a nonowner spouse on a

transfer of real property in certain circumstances, was not an affirmative

defense to Yorke’s ownership claim. Later in the proceedings, based on a

stipulated record, the court (Duddy, J.) found that Brad’s deed to Belanger was

not supported by consideration and that, therefore, she was not a bona fide

purchaser of the property for purposes of Maine’s recording statute, 33 M.R.S.

§ 201 (2018). Concluding that resolution of the consideration issue rendered

all other contested issues moot, the court entered an order of final judgment,

holding that Yorke owned the property. Belanger challenges both of these

rulings on appeal. After reviewing the stipulated facts and the applicable law,

we affirm the ruling regarding section 480, vacate the final judgment entered
                                                                                                  3

on behalf of Yorke on the issue of consideration, and remand to the trial court

to address unresolved issues.

                                       I. BACKGROUND

       [¶3] The parties stipulated to the following relevant facts.1 In 1976, Brad

acquired property located in West Bath (the Camp) through a deed from his

parents. Belanger and Brad were married on October 1, 1977. This was Brad’s

second marriage.

       [¶4] In 1977, shortly after their marriage, Brad and Belanger entered

into an oral agreement (the 1977 Agreement) by which each would deed his or

her separately-owned real estate to the other as his or her joint tenant. In 1978,

Belanger conveyed property on Prospect Street in Bath (the Prospect Street

Property) to herself and Brad as joint tenants. Brad did not reciprocate by

deeding the Camp to himself and Belanger in 1977 or 1978. Instead, in 1978,

Brad and Belanger agreed to postpone the transfer until after his parents died.

Although Brad’s parents died in 1984 and 1989, Brad did not deed the property

to himself and Belanger after either death.




   1 Although there are slight differences between the factual record created through the summary
judgment filings and the stipulated record, those differences do not affect this opinion. We use the
stipulated record to provide background for the opinion.
4

        [¶5] In 2005, Brad deeded the Camp to Yorke, his daughter from his first

marriage. Yorke did not record the deed until many years later, because she

wanted to give Brad time to tell Belanger about it. Neither Yorke nor Brad ever

did tell Belanger of the deed’s existence.

        [¶6] In 2016, during Brad and Belanger’s mutual estate planning process,

Brad executed a deed transferring the Camp to himself and Belanger as joint

tenants, consistent with the 1977 Agreement. Belanger recorded her deed on

June 29, 2016. Yorke recorded her deed on July 15, 2016. Brad died on

August 21, 2016. He was survived by Belanger and by three adult children,

including Yorke. Yorke learned of the 1977 Agreement between Brad and

Belanger after Brad’s death.

        [¶7] Belanger filed her initial complaint in the Superior Court (Sagadahoc

County)2 on April 14, 2017, seeking, inter alia, a declaratory judgment

establishing her as the sole legal owner of the Camp and damages for slander of

title. Yorke filed a counterclaim seeking a declaratory judgment establishing

her, not Belanger, as the sole legal owner of the property and asserting a claim

of undue influence. Both parties purported to have taken title by way of the

deeds delivered to them by Brad.


    On Belanger’s application, the case was transferred to the Business and Consumer Docket on
    2

November 28, 2017.
                                                                                                      5

       [¶8] On April 24, 2018, Belanger filed a motion for partial summary

judgment with regard to her declaratory judgment and slander of title claims

and seeking judgment in her favor on Yorke’s counterclaims. In that motion,

she argued that as Brad’s widow she had a superior claim to the property

because Brad’s transfer to Yorke was invalid in view of the fact that Belanger

did not sign the deed as required by 33 M.R.S.A. § 480 (1999);3 that she held

superior title by operation of the Maine Recording Act, 33 M.R.S. § 201; that

Yorke’s deed was invalid because it failed to adequately describe the property;

that Yorke was estopped from claiming a right to the property by the

affirmative defenses of equitable estoppel and laches; and that Yorke’s claim of

undue influence against Belanger must fail as a matter of law. Yorke countered



   3 The transfer to which the section 480 argument applies occurred in June of 2005. Thus, all

relevant citations are to the statute in effect at that time, which provided, in relevant part:

           An owner of real estate may convey that real estate, or any interest in it free from
       any claim to the real estate by his nonowner spouse, by deed, mortgage or any other
       instrument, without signature of his nonowner spouse, unless:

           1. Nonbona fide purchaser. The transfer requires signature pursuant to the
       Title 18-A, section 2-202, subsections (1) and (3) . . . ;

           ....

           After that conveyance, any claim of the nonowner spouse under probate, divorce
       or any other laws, shall be against the proceeds of that conveyance and not against
       the real estate.

33 M.R.S.A. § 480 (1999). Section 480 has since been amended, though not in any way relevant to
this appeal. See P.L. 2017, ch. 402, §§ A-1 to -2 (effective Sept. 1, 2019); P.L. 2019, ch. 417, § B-14.
6

with her own motion for partial summary judgment on the section 480 issue

and the affirmative defenses Belanger had raised.

      [¶9] On November 2, 2018, after oral argument, the court (Mulhern, J.)

issued an order (the Combined Order) granting Yorke a partial summary

judgment as to the section 480 issue, concluding “as a matter of law that

33 M.R.S. § 480 is not an affirmative defense to Ms. Yorke’s ownership.” The

court determined that genuine disputes of fact remained as to Belanger’s claims

of slander of title, estoppel, and laches, and denied her motion for summary

judgment as to those issues. It also found that genuine disputes of material fact

remained regarding Yorke’s claim of undue influence and denied summary

judgment on that count.

      [¶10] As the matter proceeded toward trial, Yorke sought leave to file a

second motion for summary judgment, having identified a discrete legal issue

that she believed could resolve the case: whether Brad’s deed to Belanger was

supported by consideration. The court (Duddy, J.) denied this request as

untimely but agreed to consider motions for judgment on the issue if the parties

could agree on a stipulated record and abbreviated briefing schedule. The

parties so agreed, submitted a stipulated record, and briefed the issue.
                                                                                   7

      [¶11] On March 7, 2019, the court entered a judgment on the stipulated

record in favor of Yorke. The court found that Belanger provided no “new

consideration” to Brad in 2016 and noted that Brad’s verbal 1978 promise to

transfer the property to Belanger “was unenforceable due to the statute of

frauds.” Based largely on those findings, the court determined that Brad’s deed

to Belanger “was not supported by consideration, and thus [Belanger] was not

a bona fide purchaser for the purposes of Maine’s Recording Act.” Shortly

thereafter, the court issued a final judgment, concluding that Yorke owned the

real estate at issue and that, “[a]s a result of the findings of fact and conclusions

of law contained in the Combined Order and Stipulated Record Order, all other

claims raised by the parties are moot.”

      [¶12] Belanger appeals, asserting that the court erred in holding that

Yorke’s ownership of the property is not barred by section 480 and that there

had been no consideration for the 2016 deed to her.

                                  II. DISCUSSION

A.    Title 33 M.R.S.A. § 480

      [¶13] As discussed above, the court ruled on the section 480 issue in the

context of Yorke’s motion for summary judgment. “We review the grant of a

motion for summary judgment de novo, and consider both the evidence and
8

any reasonable inferences that the evidence produces in the light most

favorable to the party against whom the summary judgment has been granted

in order to determine if there is a genuine issue of material fact.” Grant v. Foster

Wheeler, LLC, 2016 ME 85, ¶ 12, 140 A.3d 1242 (quotation marks omitted). A

genuine issue of material fact exists “when a fact-finder must choose between

competing versions of the truth, even if one party’s version appears more

credible or persuasive.” Id. (quotation marks omitted). When there is no

genuine issue of material fact, “we review de novo the trial court’s

interpretation and application of the relevant statutes and legal concepts.” Id.

¶ 13 (quotation marks omitted).

      [¶14] At the time of Brad’s transfer to Yorke, there were two sets of

circumstances under which a transfer of real estate to someone other than a

bona fide purchaser required the signature of the transferor’s nonowner

spouse. 33 M.R.S.A. § 480. Relevant to this case is the provision in subsection

480(1) requiring the signature of a nonowner spouse when “[t]he transfer

requires signature pursuant to [18-A M.R.S.A. § 2-202(1)].”
                                                                                                       9

        [¶15] Title 18-A M.R.S.A. § 2-202(1) (1998),4 in turn, required signatures

of nonowner spouses for “[a]ny transfer under which the decedent retained at

the time of his death the possession or enjoyment of, or right to income from,

the property.” If an owner of real estate transferred the property without the

signature of a nonowner spouse, any subsequent “claim of the nonowner

spouse under probate, divorce or any other laws, shall be against the proceeds

of that conveyance and not against the real estate.” 33 M.R.S.A. § 480.

        [¶16] Belanger argues that Brad “retained the possession [or] enjoyment

of” the Camp property at the time of his death, and thus her signature was

required on the Yorke Deed. Even viewed in the light most favorable to

Belanger, however, the parties’ statements of material fact do not create a

genuine dispute of material fact as to whether Brad maintained possession or

enjoyment of the Camp at the time of his death. The record shows that Brad

and Belanger last spent a night at the Camp in the 1980s, and although they

kept a boat there, the last time the couple used the boat was “six or seven years

ago”—that is, no later than 2012. In contrast, the Yorke family used the Camp

several weekends per month, and Yorke’s husband lived at the Camp full time



   4  In 2017, 18-A M.R.S. § 2-202 was recodified at 18-C M.R.S. § 2-208(1). See P.L. 2017, ch. 402,
§§ A-1 to -2 (effective Sept. 1, 2019); see also P.L. 2019, ch. 417, § B-14. Again, all references are to
the statute in effect in 2005, the time of the relevant transfer. See supra ¶ 8 & n.3.
10

for a period beginning in 2015. The Yorkes had spent tens of thousands of

dollars in repair and maintenance costs since 2005. Because the record does

not support the conclusion that there is any genuine dispute as to whether Brad

maintained the “possession or enjoyment” of the Camp property at the time of

his death in 2016, Brad’s 2005 gift transfer to Yorke is not the type of transfer

that required the signature of a nonowner spouse pursuant to section 480. The

court did not err in granting summary judgment on that issue.

      [¶17] Belanger’s argument also fails for a second reason, grounded in the

statutory language of section 480. Even assuming for the sake of argument that

the statute required Belanger’s signature on the Yorke Deed, the language of

the statute does not provide her with a claim against the real estate as a remedy.

As noted above, section 480 provides an explicit remedy for nonowner spouses:

“After [a conveyance by the owner spouse], any claim of the nonowner spouse

under probate, divorce or any other laws, shall be against the proceeds of that

conveyance and not against the real estate.” Belanger argues that section 480

must provide an implied remedy for nonowner spouses that includes a claim to

the real estate where the improper transfer is gratuitous, because the proceeds

are necessarily zero in such a situation, leaving the nonowner spouse with no

remedy at all. In order to avoid an illogical result, argues Belanger, section 480
                                                                             11

must be interpreted to provide her with an affirmative defense against Yorke’s

ownership claim. Belanger’s argument ignores the fact that the Maine Probate

Code provides spouses in such a position a clear remedy by including the actual

value of such gratuitous transfers in the augmented estate from which a

surviving spouse may take his or her elective share.         See 18-A M.R.S.A.

§ 2-202(1).

      [¶18] Belanger posits an implausible reading of the plain language of

section 480, grounded in an argument that, absent such a reading, spouses in

her position will be left without a remedy to a legal wrong. The plain language

of the statute, however, does not support Belanger’s position, and a remedy

does exist elsewhere in Maine law.          Furthermore, even if Belanger’s

interpretation prevailed, the record cannot support a finding in her favor. We

affirm the trial court’s grant of Yorke’s motion for summary judgment on the

issue of Belanger’s section 480 affirmative defense.

B.    Consideration

      [¶19] The court resolved the consideration issue on a stipulated record,

which consisted of the stipulated statement of facts plus certain exhibits. “[A]

record of stipulated facts does not, by itself, mean that there are no genuine

issues of material fact,” Blue Sky West, LLC v. Me. Revenue Servs., 2019 ME 137,
12

¶ 16 n.10, 215 A.3d 812, and unlike in the summary judgment context, a trial

court undertaking a merits analysis on a stipulated record may “draw factual

inferences from that evidence and decide disputed inferences of material fact

to reach a final result,” Rose v. Parsons, 2015 ME 73, ¶ 8, 118 A.3d 220. Although

we normally review with deference a trial court’s factual findings, such as

whether consideration existed, we review “de novo for errors of law when the

parties stipulate” to a set of facts. Christian Fellowship & Renewal Ctr. v. Town

of Limington, 2006 ME 44, ¶ 9, 896 A.2d 287.

      [¶20] The trial court determined that Brad’s 2016 deed to Belanger was

not supported by consideration largely because Belanger advanced no “new

consideration” to Brad in 2016. To support this determination, the trial court

cited language from our cases explaining the familiar rule that “past

consideration” is not consideration. Cadwallader v. Clifton R. Shaw, Inc., 127

Me. 172, 179, 142 A. 580 (1928); Hayden v. Russell, 119 Me. 38, 39-40, 109

A. 485 (1920).     The past consideration rule, however, is not a rule about

temporal proximity, but rather a necessary connotation of the rule that the

benefits and detriments on both sides of a contract must be bargained for. See

infra ¶¶ 25-27; Restatement (Second) of Contracts §§ 71, 86 & cmt. a (Am. Law

Inst. 1981).     When one party has already provided a gratuitous (i.e.,
                                                                              13

unbargained-for) benefit, that benefit cannot be consideration for the

recipient’s subsequent promise to pay for it, whether five minutes or five years

after receiving the unanticipated benefit. When there is a bargain, however, the

fact that the parties’ performances are separated by some time does not

retroactively negate the initial bargain.

      [¶21] As we set forth in greater detail below, the relevant time period for

determining whether Belanger’s transfer to Brad was consideration for Brad’s

2016 transfer to Belanger is 1977. See infra ¶ 27 & n.6. In other words, if in

1977 both Belanger and Brad considered that Belanger’s transfer of the

Prospect Street Property was “in exchange for” Brad’s transfer of the Camp—

whenever those transfers might take place—then Brad’s 2016 deed to Belanger

was supported by consideration for purposes of the bona fide purchaser

protections; Belanger was not required to provide any additional consideration

in 2016. Brad’s intention in 2016 is therefore irrelevant except to the extent

that it sheds any light on what his understanding was in 1977, and the trial

court erred in basing its consideration determination solely on its analysis of

Brad’s and Belanger’s actions and intentions in 2016.

      [¶22]    Furthermore, to the extent that the court also based its

determination of the consideration issue on its understanding that the 1977
14

Agreement was unenforceable pursuant to the Statute of Frauds, see 33 M.R.S.

§ 51(4)-(5) (2018), the court erred. There is no need to address the Statute of

Frauds or any potential exceptions to it, because Belanger is not trying to

enforce a contract. Section 78 of the Restatement (Second) of Contracts

provides that unenforceable promises may constitute consideration, e.g., for

purposes of rendering a party a bona fide purchaser for value. See also

Restatement (Second) of Contracts § 75 cmt. d & illus. 4-6. The enforceability

of any contract between Belanger and Brad has no bearing on whether

Belanger’s transfer of her own property—a transfer she indisputably made—

qualifies as consideration for Brad’s 2016 conveyance.

      [¶23] If Brad had not deeded the Camp to Belanger, and unless some

exception applied, such as the part performance exception, the Statute of

Frauds might have barred her from enforcing a claim that she and Brad had a

contract that required him to transfer the property. See, e.g., Sullivan v. Porter,

2004 ME 134, ¶ 11, 861 A.2d 625. But Belanger is not trying to enforce a

contract; she is simply arguing, in effect, that when Brad deeded the Camp to

her he was doing so pursuant to a contract, and that therefore she is a bona fide

purchaser for purposes of Maine’s recording statute.
                                                                                                   15

       [¶24] Because neither Brad’s 2016 intention nor the Statute of Frauds

has any bearing on the issue of consideration, the trial court did not apply the

correct legal standard to resolve this issue, and we have no choice but to vacate

the judgment. See Christian Fellowship & Renewal Ctr., 2006 ME 44, ¶ 9, 896

A.2d 287.       Furthermore, as we explain below, the stipulated record is

insufficient to allow us to determine—as a matter of law—whether Belanger’s

1978 transfer was consideration for Brad’s 2016 transfer. Because we must

remand this issue to the trial court, we take this opportunity to provide

guidance to the parties and the court.

       [¶25] The parties’ stipulated statement of facts establishes that, in 1977,

Belanger and Brad “made an agreement to put each other’s names on their

separately owned properties, as joint tenants (the ‘1977 Agreement’).” Mutual

promises to convey property interests to one another may constitute sufficient

consideration for purposes of a contract or for the purpose of determining

whether someone is a bona fide purchaser.5 See Restatement (Second) of


   5 There is essentially no case law—in Maine or any other jurisdiction—addressing any differences

between the meaning of “consideration” for purposes of contract enforceability and “consideration”
for purposes of a recording statute’s bona fide purchaser protections. Courts have, however, held
that the contract-law meaning of consideration does not map precisely onto the term’s meaning in
other contexts, such as the Internal Revenue Code. See, e.g., Bank of N.Y. v. United States, 526 F.2d
1012, 1015-18 (3d Cir. 1975) (“That [a decedent] may have been obliged under New Jersey [contract]
law to carry out her original intention . . . does not alter the nature of her original intention [for
purposes of the Internal Revenue Code].”). For purposes of this opinion, we assume that the
definitions are coextensive.
16

Contracts, § 75, cmt a. (“In modern times the enforcement of bargains is not

limited to those partly completed, but is extended to the wholly executory

exchange in which promise is exchanged for promise.”); see also Zamore v.

Whitten, 395 A.2d 435, 443 n.3 (Me. 1978) (“In a bilateral contract, one promise

is good consideration for another.”), overruled on other grounds by Bahre v.

Pearl, 595 A.2d 1027, 1035 (Me. 1991). In order “[t]o constitute consideration,”

however, “a performance or a return promise must be bargained for.”

Restatement (Second) of Contracts § 71(1). A “return promise is bargained for

if it is sought by the promisor in exchange for his promise and is given by the

promisee in exchange for that promise.” Id. § 71(2). The objectively manifested

intentions of both parties are relevant because it takes two to bargain. See id.

§ 71 cmt. b (“[I]t is not enough that the promise induces the conduct of the

promisee or that the conduct of the promisee induces the making of the

promise; both elements must be present, or there is no bargain.”); accord

Laflamme v. Hoffman, 148 Me. 444, 450-51, 95 A.2d 802 (1953).

      [¶26] Inducing the other person’s promise need not be the primary or

substantial motive for the action constituting consideration (whether promise

or performance), see Restatement (Second) of Contracts § 81(1); likewise, a

promise induced by the promise constituting consideration need not be
                                                                                                  17

primarily motivated by it, see id. § 81(2). Here, for instance, Belanger’s promise

to convey her property to Brad may constitute consideration for Brad’s 2016

deed even if the 1977 agreement was primarily motivated by Brad’s and

Belanger’s love and affection for each other.

       [¶27] Thus, two facts must be found to be true in order for Brad’s 2016

deed to Belanger to have been supported by consideration: (1) Belanger must

have made her 1977 promise or her 1978 conveyance in exchange for Brad’s

promise to convey his property, and (2) Brad must have intended for his

reciprocal 1977 promise to convey his property to induce Belanger’s promise

to convey hers.6 Brad’s intent at that time may be discerned by evidence of his

statements and actions in 1977 as well as his actions related to that alleged

promise thereafter. If either Brad or Belanger viewed the 1977 agreement

exclusively as a mutual exchange of gifts, rather than as “bargained-for”

exchange (at least in part), then neither Belanger’s promise to convey her

property nor her performance of that promise in 1978 can constitute


   6 Brad’s intention only in 1977 is relevant, because by the time of his 1978 promise, Belanger’s

performance was complete, and Brad could not have intended any promise he made after Belanger
conveyed her property to have induced her to convey the property. See Restatement (Second) of
Contracts § 86 (Am. Law Inst. 1981).

      Belanger’s intention to induce Brad’s promise, by contrast, might be established either in 1977
or in 1978, because Brad made his two promises—his original 1977 promise and his revised 1978
promise—either contemporaneously with or after Belanger made her promise, so the “past
consideration” rule does not apply. Id.; see supra ¶¶ 20-21.
18

consideration for purposes of rendering her a bona fide purchaser of Brad’s

property.

      [¶28] We recognize that whether the fact that mutual promises have

been made establishes, even presumptively, that each promise constitutes

consideration for the other is an unsettled question in Maine. Context matters:

the evidentiary weight of the simple fact that both parties have made promises

will vary depending on the parties’ relationship. See Restatement (Second) of

Contracts § 71 cmt. c. For instance, in a business setting, the fact that one party

promises to pay money and the other party promises to render a service is very

strong evidence of a “bargain.” In the context of marriage, family relationships,

and even friendship, however, the motives behind a mutual exchange are more

complex and more difficult to determine. The “gift or bargain” question that

bedevils courts interpreting a property transfer between family members does

not lend itself to a per se rule that reciprocity indicates a bargain.

      [¶29] Accordingly, in several jurisdictions, the fact that spouses have

made mutual wills does not establish, per se, that each will was made in

consideration of the other. See, e.g., Reznik v. McKee, 534 P.2d 243, 254-55 (Kan.

1975); Curry v. Cotton, 191 N.E. 307, 310 (Ill. 1934) (noting, however, that

“where [a joint will] is one jointly executed by the husband and wife, while in
                                                                               19

itself not conclusive evidence of a contract, it is a very material circumstance”

to the question of whether a contract exists).

      [¶30] Here, the stipulated record does not establish as a matter of law

that Brad’s and Belanger’s mutual promises were either a quid pro quo (and

thus consideration for each other) or a matter of marital obligation or perceived

social propriety (and thus not consideration). For instance, the stipulated

record contains Belanger’s deposition testimony that Brad’s 2016 transfer was

“similar to when I put his name on my house [in 1978]. It made a couple. I

didn’t gain anything . . . when I put his name on my house, and he didn’t gain

anything when he put my name on his cottage.” (Emphasis added.) On the

other hand, the stipulated record states that “Belanger considered that her

1978 transfer of the Prospect Street property was in exchange for the transfer

of the 2016 Deed from Brad.”

      [¶31] Furthermore, the parties’ use of the term “agreement” does not

resolve the question. Paragraph 22 of the Stipulated Statement of Facts states,

inter alia, that Brad “delivered a deed of the Camp to [Belanger] and himself as

joint tenants . . . consistent with the 1977 Agreement.” In this context, however,

the word “agreement” does not imply, by itself, that both promises are

supported by consideration. The Restatement defines “agreement” simply as
20

“a manifestation of mutual assent.” Restatement (Second) of Contracts § 3. The

comments to section 3 clarify that “[a]greement has in some respects a wider

meaning than contract, bargain or promise,” and that there exist some

“agreements which are not contracts, such as transactions where one party

makes a promise and the other gives something in exchange which is not

consideration.” Id. § 3 cmts. a, c. Spouses or friends may “agree” in a colloquial

sense to exchange gifts, but in many such exchanges there is no element, even

minor, of quid pro quo or bargain.

      [¶32] As discussed above, the stipulated record simply does not permit

us to determine, as a matter of law, whether Brad and Belanger would have

made their mutual property transfers even if the other one did not—because

that was their understanding of their domestic partnership—or, instead,

whether each spouse did so because the other spouse did as well.

      [¶33] On remand, the trial court must determine whether Brad’s promise

was made “in exchange for” Belanger’s promise. Restatement (Second) of

Contracts § 71(2). The court’s resolution of that issue—including its possible

conclusion that the stipulated record is insufficient to allow it to make such a

determination in the first instance, see Rose, 2015 ME 73, ¶¶ 7-8, 118 A.3d 220,
                                                                                            21

a possibility about which we do not currently opine—will determine how it

should proceed.7

       The entry is:

                     The judgment on the 33 M.R.S.A. § 480 issue is
                     affirmed. The final judgment on the issue of
                     consideration is vacated and the case is
                     remanded for further proceedings consistent
                     with this opinion.



JABAR, J., concurring in part and dissenting in part.

       [¶34] I respectfully concur in part and dissent in part. I agree with the

Court’s decision to vacate the judgment holding that Belanger failed to prove

that there was any consideration for the 1977 Agreement to convey each

other’s separately owned property into joint tenancy. See Court’s Opinion

¶¶ 24, 33. I also agree with the Court’s remand to address other unresolved

issues. However, I do not believe that we should remand to the trial court to

resolve the issue of consideration because I believe that the stipulated facts

establish as a matter of law that there was consideration for the 1977

Agreement wherein Brad and Belanger both agreed to convey all of their

individual properties into jointly owned properties.


  7  Because Belanger’s appeal is not frivolous, we deny Yorke’s motion for sanctions. See M.R.
App. P. 13(f); Lincoln v. Burbank, 2016 ME 138, ¶ 46, 147 A.3d 1165.
22

      [¶35] We review the court’s decision on a stipulated record de novo.

Mason v. City of Augusta, 2007 ME 101, ¶ 18, 927 A.2d 1146 (“Because the facts

are stipulated, we review de novo the legal issues presented to the [trial

court].”).

      [¶36] The stipulated facts establish that Belanger and Brad entered into

an agreement wherein they agreed “to put each other’s names on their

separately owned properties as joint tenants (the ‘1977 Agreement’).” Mutual

promises to convey property interests to one another constitute consideration

for purposes of a contract or for the purpose of determining whether someone

is a bona fide purchaser. See Restatement (Second) of Contracts, § 71(1), (2)

(Am. Law Inst. 1981) (“To constitute consideration, a performance or a return

promise must be bargained for. . . . A performance or return promise is

bargained for if it is sought by the promisor in exchange for his promise and is

given by the promisee in exchange for that promise.”).

      [¶37] This bedrock principle of contract law is a common thread seen

throughout our jurisprudence for more than a century. See First Nat’l Bank v.

Ware, 95 Me. 388, 398, 50 A. 24 (1901) (“mutual promises of . . . creditors to

one another [to partially forgive debt] constitute a sufficient consideration for

the promise of each.”); see also A.L. Brown Constr. Co. v. McGuire, 495 A.2d 794,
                                                                              23

797 (Me. 1985) (“Mutual promises to exchange releases and settle claims are,

themselves, adequate consideration for a contract.”).

      [¶38] The parties’ stipulated statement of facts states, “Soon after their

marriage, [Belanger] and Brad made an agreement to put each other’s names

on their separately owned properties, as joint tenants (the ‘1977 Agreement’).”

In addition, stipulated facts 5, 6, and 7 indicate that Belanger and Brad agreed

to create a mutual estate plan under which Belanger would receive everything

Brad owned if he predeceased her, and vice versa. The parties also stipulated

that, “During their 39 year marriage, Brad and [Belanger] named each other as

beneficiaries in their insurance, individual investments, and wills pursuant to

the estate plan.” Belanger also established Brad as joint owner of a vehicle and

her retirement account.

      [¶39] In addition, Belanger and Brad made several conveyances of real

estate pursuant to the 1977 Agreement during their lifetimes. “In 1978,

[Belanger] conveyed her Prospect Street property in Bath to herself and Brad

as joint tenants . . . as part of the 1977 Agreement.” In 1982, Belanger and Brad

had property on Front Street in Bath conveyed to themselves in joint tenancy,

in “conformity with the 1977 Agreement.”         Finally, in 2016, when Brad

conveyed the Camp to Belanger and himself as joint tenants, it was conveyed
24

“consistent with the 1977 Agreement.” These stipulated facts establish as a

matter of law that there was a mutual estate plan, a quid pro quo—not an

agreement to exchange gifts without any understanding of required reciprocity.

      [¶40] Belanger and Brad’s agreement was much broader than Belanger’s

conveyance of her separately-owned Prospect Street property into joint

tenancy in exchange for Brad’s conveyance of his separately-owned camp into

joint tenancy. The 2016 deed of the Camp by Brad to himself and Belanger as

joint tenants was only one part of the “mutual estate plan.” The stipulated facts

indicate that Brad and Belanger characterized the transfer of the Camp as being

made pursuant to the 1977 Agreement. They both executed other documents

and conveyances consistent with this estate plan. They both had named each

other as beneficiaries on their insurance, investments, savings, wills and

personal property. These transactions were not merely an agreement “in a

colloquial sense to exchange gifts.” Court’s Opinion ¶ 31. These facts establish

as a matter of law that the 1977 Agreement was a bargained-for exchange.

      [¶41] We should remand the matter to the trial court with the direction

that judgment be entered for Belanger on the issue of consideration.
                                                                             25

Christopher E. Pazar, Esq., and William J. Kennedy, Esq. (orally), Drummond &
Drummond, LLP, Portland, for appellant Rebecca W. Belanger

Chris Neagle, Esq. (orally), Troubh Heisler, LLC, Portland, for appellee Lisa M.
Yorke


Business and Consumer Docket docket number CV-2017-56
FOR CLERK REFERENCE ONLY
