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                  THE SUPREME COURT OF NEW HAMPSHIRE

                          ___________________________


Rockingham
No. 2015-0255


                              RENEE M. BROOKS

                                       v.

                                STEVEN ALLEN

                          Argued: January 13, 2016
                         Opinion Issued: April 1, 2016

      Bryan J. Kerman, of Methuen, Massachusetts, by brief and orally, for the
petitioner.


      Kenneth P. Doherty, of Lawrence, Massachusetts, by brief and orally, for
the respondent.

       CONBOY, J. The respondent, Steven Allen, appeals an order of the
Superior Court (Wageling, J.) granting a petition to partition real property and
for other equitable relief filed by the petitioner, Renee M. Brooks, and denying
the respondent’s cross-petition to partition. We affirm.

      The relevant facts follow. The petitioner and the respondent lived
together for approximately twenty years from 1993 to 2013, except for an 18-
month period of separation in 2006-2007. They are the parents of a son who
was born in 1996.
      The parties met in 1991. In 1993, the respondent purchased a two-
family apartment building in Haverhill, Massachusetts. The deed and
mortgage were in the respondent’s name only. The parties resided in one of the
apartments and rented the other; the rental income covered the mortgage
payments. The trial court found that both the petitioner and the respondent
“performed renovations and upkeep on the property, with funding for the
repairs and maintenance coming largely from [the respondent], aided by the
proceeds from the mortgage.” Both parties contributed financially to the
household, with the respondent providing the majority of the income.

      In 1995, the parties acquired land in Merrimac, Massachusetts as joint
tenants, intending to build a house for themselves. That project never came to
pass, however, and they sold the property in 1997.

       In 1998, the parties sold the Haverhill property and purchased a house
in Atkinson, New Hampshire (the Atkinson property). The deed and mortgage
were in the respondent’s name only. The trial court found that the money for
the down payment on the Atkinson property came from the sales of the
Merrimac land and the Haverhill house, and the parties’ savings. The court
also found that “[the respondent’s] savings far exceeded the savings
contributed to the down payment by [the petitioner] as [she] had remained at
home during this time frame to care for their son.”

       From 1998 through early 2013, the parties lived together in the Atkinson
home. The trial court found that it was their plan “to remain together and
continue to build on the financial foundation they started in 1993.” The court
also found that “[d]uring this time frame, [the petitioner] had returned to
school and obtained a nursing degree allowing her to gain employment as a
registered nurse,” and that “both parties contributed to the maintenance of the
Atkinson property and the regular functioning of the household, sharing the
responsibility of the expenses of the family unit.”

       In 2003, the parties, as joint borrowers, entered into a home equity credit
agreement secured by a mortgage on the Atkinson property. The November
1998 mortgage in the respondent’s name alone was discharged. Under the
terms of the credit agreement, each party was individually liable for the full
amount of the credit line. The respondent, however, was in control of the
credit line and he alone withdrew funds from it.

       In 2007, the parties, as joint tenants, purchased a property in
Northwood, New Hampshire (the Northwood property). The respondent
obtained a mortgage on the property in his name only. The trial court found
that at the time they purchased the Northwood property, “the parties agreed
that [the respondent] would pay the mortgage and expenses on the Northwood
property and the 2003 line of credit on the Atkinson property while [the
petitioner] would be responsible for all of the other expenses of the Atkinson


                                        2
property (real estate taxes, utilities, and groceries),” and that this agreement
continued until the parties separated in 2013. The trial court also found that
the Northwood property, a seasonal home on a lake, “was in disrepair at the
time of purchase requiring the parties to undertake substantial renovations to
make it habitable. Both parties assisted in this task with [the respondent]
doing the majority of the physical labor.”

       The parties refinanced the Northwood property several times. In 2008,
they jointly obtained a mortgage, and discharged the 2007 mortgage that was
in the respondent’s name only. In 2009, they jointly obtained a mortgage, and
discharged the 2008 mortgage. In 2010, they completed a number of loan
applications, either individually or jointly, for a mortgage on the Northwood
property. On the applications, the respondent represented that his monthly
income was $1,413 and that he did not own any property. The petitioner
represented that her monthly income was $8,036 and that she owned the
Northwood property, the Atkinson property, and a property in Haverhill,
Massachusetts. The parties thereafter jointly executed a mortgage secured by
the Northwood property, and discharged the 2009 mortgage. In 2012, the
parties again sought refinancing, with the petitioner completing the loan
application in her name only. As a result of this refinancing, the 2010
mortgage was discharged.

      In 2012, the parties also obtained another home equity line of credit on
the Atkinson property as joint borrowers with each party individually liable for
the full amount. The respondent, however, was in full control of the credit line
and he alone withdrew funds from it. The parties executed a new mortgage
secured by the Atkinson property, and the 2003 mortgage was discharged.

      In 2013, the petitioner moved out of the Atkinson property when she
received a letter from the respondent’s attorney notifying her that if she did not
leave she would be evicted. Upon the advice of his attorney, the respondent
withdrew the remaining balance of approximately $59,000 on the 2012
Atkinson credit line so that the petitioner could not access those funds.

      The trial court found that the respondent’s yearly mortgage payments on
the Northwood property for the years 2007 through 2012 were, respectively:
$14,972; $31,392; $24,295; $25,681; $19,728; and $23,624. For those same
years, the trial court found that, “[o]f note, [the respondent’s] yearly total gross
income” reported on his federal tax returns was, respectively: $27,606;
$16,963; $41,721; $27,908; $24,271; and $34,302. The trial court found that
the petitioner’s yearly total gross income reported on her federal tax returns
was: $47,800 in 2005; $56,209 in 2006; $57,267 in 2007; $70,143 in 2008;
$80,861 in 2009; $69,025 in 2010; $69,055 in 2011; and $69,956 in 2012.

      In March 2013, the petitioner filed a two-count petition to partition. In
count one, the petitioner requested that the trial court order that the


                                         3
Northwood property be sold pursuant to RSA 547-C:25 (2007), that the net
proceeds from the sale be distributed equally between the parties, and that the
court “grant such further relief as is fair and just.” In count two, the petitioner
requested, among other things, that the trial court “[e]quitably determine” each
party’s interest and rights in the Atkinson property, each party’s liability for
any debts or loans jointly entered into, and each party’s liability for any debts
or loans entered into by the petitioner, whose funds were used by the
respondent “individually, or by the parties jointly, to invest in or maintain real
estate.” The respondent cross-petitioned, requesting that the trial court assign
the Northwood property to him, and dismiss count two of the petitioner’s
petition.

       A bench trial was held in February 2015. Subsequently, the court issued
an order setting forth the respective interests of the parties. Regarding the
Northwood property, the trial court found that the fair market value was
$270,000 and, as of January 2015, it had a mortgage of $94,477.02.
Accordingly, the court determined the equity to be $175,522.98, of which the
petitioner was entitled to $70,209.19. Regarding the Atkinson property, the
trial court found that as of December 2014, the fair market value was
$362,000 and, as of the time of the parties’ separation, it had a mortgage
balance of $236,457. Accordingly, the court determined the equity to be
$125,543, of which the petitioner was entitled to $50,217. The court ordered
the respondent either to sell the Northwood and Atkinson properties, or to
refinance or otherwise discharge the mortgages, and to pay the petitioner
$70,209.19 for her interest in the Northwood property and $50,217 for her
interest in the Atkinson property.

       On appeal, the respondent asserts that the trial court erred in
“determining the equitable rights of unmarried parties to a particular jointly
owned property in a partition action pursuant to RSA 547-C,” and in
“determining the equitable rights of unmarried cohabitants to a particular
individually owned property in the absence of express terms of a joint venture
agreement.” He argues that the trial court’s order was “divorce like” because it
“treated payments made solely by [the respondent] as payments made jointly as
if the money came from one domestic partnership of the parties instead of
using the available evidence showing who contributed what and how much
toward each property as intended by a proper application of the controlling
statute.” He asserts that the court “simply used the fair market value and
mortgage balance to determine how much money should be apportioned as
equity of the domestic partnership” and then “entered a sixty-forty percentage
split of said equity without fully explaining how or why it came up with that
formula.” The respondent further argues that “some of the trial judge’s
findings of fact were not supported by the evidence and were so plainly
erroneous that such findings could not reasonably be made.”




                                         4
       We review the trial court’s decision to grant equitable relief for an
unsustainable exercise of discretion. Conant v. O’Meara, 167 N.H. 644, 649
(2015); see Chase v. Ameriquest Mortgage Co., 155 N.H. 19, 24 (2007) (“We will
uphold a trial court’s equitable order unless it constitutes an unsustainable
exercise of discretion.”). In doing so, we determine “whether the record
establishes an objective basis sufficient to sustain the discretionary judgment
made.” State v. Lambert, 147 N.H. 295, 296 (2001) (explaining unsustainable
exercise of discretion standard). “The court has broad and flexible equitable
powers which allow it to shape and adjust the precise relief to the requirements
of the particular situation.” Chase, 155 N.H. at 24 (quotation omitted). “A
court of equity will order to be done that which in fairness and good conscience
ought to be or should have been done. It is the practice of courts of equity . . .
to administer all relief which the nature of the case and facts demand.” Id.
(quotation omitted). “The party asserting that a trial court order is
unsustainable must demonstrate that the ruling was unreasonable or
untenable to the prejudice of his case.” Foley v. Wheelock, 157 N.H. 329, 332
(2008). We will not disturb the findings of the trial court “unless they lack
evidentiary support or are legally erroneous.” In the Matter of Henry & Henry,
163 N.H. 175, 178 (2012).

       Partition actions are governed by RSA chapter 547-C, which vests the
trial court with broad power to determine the rights of those with an interest in
real property. See DeLucca v. DeLucca, 152 N.H. 100, 102 (2005) (“An action
for partition calls upon the court to exercise its equity powers and consider the
special circumstances of the case, in order to achieve complete justice.”).
“Partition is equitable in nature, and the jurisdiction of the court extends to
adjustment of conflicting claims in a fair division of the proceeds in the light of
the attendant circumstances.” Bartlett v. Bartlett, 116 N.H. 269, 272 (1976).

       RSA 547-C:1 provides that “[a]ny person owning a present undivided
legal or equitable interest in real or personal property . . . shall be entitled to
have partition or division in the manner hereinafter provided.” RSA 547-C:1
(2007) (emphasis added). “Upon petition . . . , the court may cause any
property to be partitioned or divided and awarded or assigned in accordance
with procedures described in this chapter.” RSA 547-C:2 (Supp. 2015). The
trial court “shall have full power to determine the respective interests of all the
parties.” RSA 547-C:10 (2007).

      The statute sets forth several factors the court may consider in
determining any award:

            In entering its decree the court may, in its discretion, award
      or assign the property or its proceeds on sale as a whole or in such
      portions as may be fair and equitable. In exercising its discretion
      in determining what is fair and equitable in a case before it, the
      court may consider: the direct or indirect actions and


                                         5
      contributions of the parties to the acquisition, maintenance, repair,
      preservation, improvement, and appreciation of the property; the
      duration of the occupancy and nature of the use made of the
      property by the parties; disparities in the contributions of the
      parties to the property; any contractual agreements entered into
      between the parties in relation to sale or other disposition of the
      property; waste or other detriment caused to the property by the
      actions or inactions of the parties; tax consequences to the parties;
      the status of the legal title to the property; and any other factors
      the court deems relevant.

RSA 547-C:29 (2007) (emphasis added). The statute’s provisions “are to be
liberally construed in favor of the exercise of broad equitable jurisdiction by the
court in any proceeding pending before it.” RSA 547-C:30 (Supp. 2015).

      Here, after reciting the factors set forth in the statute, the trial court
applied them to the evidence presented at trial. The court found that

      the parties intended their purchasing and maintaining of real
      estate to be for the benefit of both, as a partnership – that is, as
      domestic partners. The parties’ relationship was not of short
      duration, nor was it one based solely on economic convenience as
      evidenced by their manner of living as a family. The Court finds
      that both parties contributed their respective resources to the
      domestic partnership throughout the course of the relationship.
      The Court further finds that [the respondent] was able to
      contribute more financial and physical resources than [the
      petitioner] and that his contribution was more consistent than [the
      petitioner’s]. For this reason, the Court will not award a 50-50
      split of the property/interest in the property subject to the
      partition action, but in general terms hereby orders a 60-40 split
      with [the respondent] receiving the larger share. However, [the
      respondent] shall be held responsible to solely pay $59,077.92
      which is a portion of the balance of the equity line of credit
      remaining on the Atkinson property.

       The respondent argues that in determining the parties’ equitable rights,
the trial court erred in awarding a “divorce-like” settlement. The respondent
asserts that the trial court’s decision “is a departure from many holdings of this
Court over the last thirty-five years that unmarried parties are not entitled to
divorce-like remedies until and unless the legislature determines otherwise.”
The cases cited by the respondent, however, are not based upon equitable
distribution of property pursuant to RSA chapter 547-C, and are otherwise
distinguishable.




                                          6
       In Joan S. v. John S., 121 N.H. 96 (1981), the parties “lived together
without benefit of marriage” for approximately 15 years. Joan S., 121 N.H. at
97. Upon the end of the relationship, the woman filed a petition requesting the
trial court to decree the relationship of the parties a “void marriage,” and
impose upon the defendant “alimony, child support, property division and
injunctions.” Id. (quotation omitted). We affirmed the trial court’s dismissal of
the petition on the ground that New Hampshire “is a jurisdiction which does
not recognize the validity of common-law marriages.” Id. at 98 (quotation
omitted). We noted, however, that our refusal to apply the divorce statute to
the dissolution of non-marital living arrangements does not prevent equitable
adjustment of the rights of the parties, that either party may bring a bill in
equity or petition for declaratory judgment to determine equitably the rights of
parties in particular property, and that a court will enforce an action in
contract “to the extent that it is not founded upon the consideration of
meretricious sexual relations.” Id. at 99. We further concluded that the
plaintiff’s request that the real estate be partitioned was properly dismissed for
the plaintiff’s failure to comply with the provisions of the statute. Id.

       In Tapley v. Tapley, 122 N.H. 727 (1982), we declined to allow recovery
for “domestic services” under an implied contract or in quantum meruit,
adopting the view of other jurisdictions that have concluded that until their
legislatures determine otherwise, they will not recognize a contract which is
implied from the rendition of “housewifely services.” Tapley, 122 N.H. at 729
(quotation omitted). We stated that our holding was “not meant to limit
recovery for business and personal services, other than normal domestic
services, rendered between unmarried cohabitants,” noting that in Humiston v.
Bushnell, 118 N.H. 759, 761-62 (1978), we permitted an unmarried individual
to recover from her cohabitant’s estate her share of a joint farming venture on a
partnership theory. Id. at 730-31.

       In In the Matter of Mallett & Mallett, 163 N.H. 202 (2012), we considered
whether the family division lacked subject matter jurisdiction over claims
between unmarried parties who have children together “to partition jointly
owned real estate, order one parent to provide health insurance coverage to the
other parent, or adjudicate legal or equitable claims to assets and claims for
compensation for services rendered.” In the Matter of Mallett, 163 N.H. at 207,
209. We concluded that pursuant to the overall scheme of the relevant
statutes, “[w]hile unmarried parties are expressly within the family division’s
jurisdiction for purposes of child-related matters, this statutory scheme plainly
restricts all divorce remedies and property distribution to married couples,”
and that “[s]hould the legislature determine that ‘unwed families’ should have
the opportunity to have all their claims . . . heard in the family division, it has
the power to grant that jurisdiction to the family division.” Id. at 209.

     Here, the petitioner did not seek a “divorce-like” remedy; rather, she
sought, under RSA chapter 547-C, an equitable determination of her rights in


                                         7
two parcels of real property. In determining the interests of the parties, the
trial court took into consideration the factors it deemed relevant, as it is
authorized to do under the statute. See RSA 547-C:29. The trial court’s
characterization of the parties’ relationship as “domestic partners” did not alter
either the underlying nature of the petition, or the propriety of the court’s
analysis. The respondent asserts that because the trial court stated that it
would not award a “50-50” split of the interest in the properties, it must have
been treating this petition as one for divorce because the partition statute,
unlike the divorce statute, contains no such presumption of equal entitlement
to property. However, the trial court’s reference to a “50-50” split was tied to
its consideration of the factors set forth in the partition statute, whereby, in
determining what is fair and equitable, it may consider “the direct or indirect
actions and contributions of the parties to the acquisition, maintenance,
repair, preservation, improvement, and appreciation of the property,” as well as
“disparities in the contributions of the parties to the property.” Id. Here,
because the evidence demonstrates that the respondent’s contributions were
greater than the petitioner’s, the trial court acknowledged that the equitable
interests in the properties were not equal and thus it would order a “60-40 split
with [the respondent] receiving the larger share.”

      The respondent also argues that the trial court made three erroneous
factual findings: (1) that the parties jointly purchased the property in
Merrimac; (2) that the parties’ savings formed part of the down payment for the
Atkinson property; and (3) that the November 1998 Atkinson mortgage in the
respondent’s name only was paid off by the 2003 line of credit. He asserts that
these factual findings were “not supported by the evidence and were so plainly
erroneous that such findings could not reasonably be made.”

        Although there was conflicting evidence presented at trial, as the trier of
fact, the trial court was “in the best position to measure the persuasiveness
and credibility of evidence and [was] not compelled to believe even
uncontroverted evidence.” DeLucca, 152 N.H. at 102 (quotation omitted). “[I]t
was within the discretion of the trial judge to resolve conflicts in the evidence.
The trial court could accept or reject such portions of the evidence presented as
[it] found proper.” Id. (quotation omitted). We “defer to the trial court’s
resolution of conflicts in the testimony, the credibility of witnesses, and the
weight to be given evidence.” Id. We have reviewed the record and conclude
that the trial court’s findings are supported by the evidence and are not
erroneous as a matter of law. Accordingly, we will not disturb the court’s
findings. See id.

                                                   Affirmed.

      DALIANIS, C.J., and HICKS, LYNN, and BASSETT, JJ., concurred.




                                        8
