Estate of Croteau v. Croteau

HORTON, J. The defendant, George D. Croteau, appeals a decision of the Hillsborough County Probate Court (Cloutier, J.) in a declaratory judgment action brought by the plaintiff, the estate of Rita L. Croteau, to quiet title to real estate in Manchester. The probate court held that the joint tenancy had been severed upon the parties’ divorce in 1975, and granted the plaintiff title to the property. We reverse. On July 30, 1964, George and Rita Croteau, husband and wife, purchased a residence in Manchester as joint tenants with right of survivorship. On March 4, 1975, the superior court issued a divorce decree that provided, inter alia: [S]aid Rita L. Croteau to have use of the real property at 25 Bow Street in Manchester in the County of Hillsborough — 179 — and State of New Hampshire until she desires to sell same or remarry, whichever occurs first, at which time the said Rita L. Croteau will pay the said George D. Croteau the sum of Eight Thousand Dollars ($8,000.00) for his interest. In 1981, George petitioned the superior court for clarification and modification of the decree as it related to the use and sale of the Bow Street property. George claimed the decree “is patently incomplete, in that it does not provide for a settlement date predicated upon other eventualities.” In response, Rita argued that [t]he language of the clause in the divorce decree awarding the use of the real property at 25 Bow Street to Rita L. Croteau until she desires to sell same or remarry, as well as the specification of the monetary sum to be payable to George D. Croteau upon the occurrence of either the sale or rem,arriage, is clear, unambiguous and explicit on its face. (Emphasis added.) The court denied George’s request. Rita never remarried, never sold the property, and continued to reside there until her death on January 17, 1996. Her will, executed on March 25, 1975, left all of her property to the couple’s three children. On January 25, 1996, George notified the estate that he claimed title to the Bow Street property as survivor of the joint tenancy created by the 1964 deed. On March 5, 1996, the estate brought an action to quiet title to the property. The parties agreed to submit the case to the probate court for a decision on the pleadings. On July 18, 1996, the probate court issued an order holding that the property did not pass to George as the surviving joint tenant but was instead an asset of the estate. The court enjoined George from occupying, assuming possession, or entering the property. The court also ordered the property sold, with the first $8,000 to be paid to George, and the remaining proceeds distributed to the heirs. George appeals that order. On appeal, George contends that the probate court erred in finding: (1) that the divorce decree destroyed his rights to succession as surviving joint tenant; and (2) an intent to terminate the joint tenancy in the 1975 divorce decree. In determining whether to sever a joint tenancy, we long ago replaced the classic “four unities” test with an analysis of the “proper expression of intention by the parties.” Mamalis v. Bornovas, 112 N.H. 423, 427, 297 A.2d 660, 662 (1972). The intent of the parties controls when analyzing whether a joint tenancy has been severed. Id. “Our determination of the terms of an instrument — 180 — is based on the parties’ intentions as properly found by the trial court.” McMullin v. Downing, 135 N.H. 675, 678, 609 A.2d 1226, 1229 (1992) (quotation omitted). When a court order affects property held in joint tenancy, however, the interpretation of the order is a question of law, and we therefore review the decree de novo. Estate of Frederick v. Frederick, 141 N.H. 530, 531, 687 A.2d 711, 713 (1996). In Mamalis, the parties stipulated and the divorce decree declared that “the equity in their real estate shall be equally divided . . . and the payment . . . shall either be made or initiated within thirty (30) days from the date of the hearing.” Mamalis, 112 N.H. at 425, 297 A.2d at 661 (quotation and ellipsis omitted). “This agreement and decree certainly contemplated the absolute division of the joint ownership and was totally inconsistent with the prior survivorship rights of the parties.” Id. at 428, 297 A.2d at 663. In contrast, the instant divorce decree contains no intention to sever the mutual rights of survivorship. We agree with those jurisdictions that hold that a divorce automatically terminates only those property rights that are dependent upon the marriage relationship, and that property rights of a husband and wife that exist independently of the marriage may survive divorce. See Sondin v. Bernstein, 467 N.E.2d 926, 929 (Ill. Ct. App. 1984). A divorce would automatically sever only a tenancy by the entirety, a form of ownership whose attributes are not recognized in New Hampshire. See Boissonnault v. Savage, 137 N.H. 229, 231, 625 A.2d 454, 455 (1993); 7 R. Powell & P. Rohan, Powell on Real Property ¶ 624[5], at 52-36 (1998). In New Hampshire, therefore, title to real property is severed by divorce only upon a “proper expression of intention by the parties.” Mamalis, 112 N.H. at 426, 297 A.2d at 662. The divorce decree provided Rita Croteau with the right to use and occupy the property, to be terminated by her remarriage or her sale of the property. The court found two instances in which George “would receive a specific sum of money, namely remarriage by Rita L. Croteau or sale of the real property.” Neither event occurred. Instead, Rita died without selling the property or remarrying, a contingency not addressed by the divorce decree. If she desired to remarry or sell the property during her lifetime, and therefore sever the joint tenancy, Rita could have done so, thereby limiting George’s claim to the $8,000 provided in the decree. However, by surviving Rita with neither condition having occurred, George is entitled as the surviving joint tenant to full and exclusive — 181 — possession of the property. 7 R. Powell & P. Rohan, supra ¶ 617[3], at 51-11 to 51-12. The estate argues that the trial court’s denial of George’s 1981 motion to clarify and modify the decree serves as “the law of the case” and bars George’s present claim of title to the Bow Street property. At the 1981 proceeding, neither George nor Rita proffered arguments about the status of title or ownership of the Bow Street property, but rather only about its use. The divorce decree never addressed, and the parties never sought to modify the decree to consider, the eventual death of one party. The estate further relies upon the trial court’s authorization to consider “the need of the custodial parent, if any, to occupy or own the marital residence and to use or own its household effects.” RSA 458:16-a, 11(e) (1992). We find this argument unpersuasive. As a general rule, [ w]here a law affects substantive rights and liabilities, it is presumed to apply only to future causes of action unless there is some evidence of legislative intent that the statute be applied retrospectively. . . . When a statutory change . . . solely affects procedures or remedies, rather than substantive rights, the normal presumption against retrospective application is reversed. Norton v. Patten, 125 N.H. 413, 417, 480 A.2d 190, 193 (1984) (citations omitted). RSA 458:16-a, 11(e) was enacted in 1987 to be effective January 1, 1988. Finding no indication that the legislature intended that the statute be applied retrospectively, we refuse to do so. Even if applicable, the statute merely provides the trial court with one factor to consider in allocating the marital home. By contemplating the needs of a custodial spouse to either “occupy or own the marital residence,” RSA 458:16-a, 11(e) (emphasis added), the statute provides no answer to the present dispute. We do not read the decree as providing for a termination of the joint tenancy. The decree provides that Rita shall “have use of the real property.” The court knew how to provide for an outright distribution of property to one spouse as evidenced by other provisions in the decree. In particular, the decree provided that “the household furniture and furnishings be awarded to the said Rita L. Croteau disencumbered of all rights of the said George D. Croteau” and that “the 1971 Cadillac be awarded to the said George D. Croteau.” The court chose language that did not provide for an outright distribution of the Bow Street property, and we will not interpret the decree to produce that result. — 182 — The estate claims that George “is not entitled to a review of the factual issues in his divorce which pertain to the disposition of the 25 Bow Street property” because he “failed to provide this Court with a record of the divorce proceedings.” We refuse to interpret George’s failure to appeal the court’s silence on the issue of title to the Bow Street property as vesting title in Rita. Because neither party appealed the ambiguity in the divorce decree, this claim could not be subject to res judicata. Cf. Grossman v. Murray, 141 N.H. 265, 270-71, 681 A.2d 90, 94 (1996). Our review is limited to the language contained within the divorce decree, which did not provide for the eventuality of either party dying before the property was sold. In the absence of a clarifying opinion, or even an opinion on the basis for denying George’s request to clarify and modify, we cannot discern any intention by the trial court to terminate the joint tenancy. We reiterate our strong request that marital masters “make final disposition of all property which is specifically in contention, especially where either party reasonably and seasonably moves for clarification.” Henderson v. Henderson, 121 N.H. 807, 810, 435 A.2d 133, 135 (1981). Reversed. BRODERICK, J., concurred specially; JOHNSON, J., dissented; the others concurred.