Summary
In Hackett, the court stated that it is established in Connecticut and numerous other jurisdictions that have considered the question that "where one spouse purchases property entirely with his or her funds and takes title in the names of both spouses jointly, a rebuttable presumption arises that a gift was intended to the other spouse of a one-half interest in the property."
Summary of this case from Segal v. SegalOpinion
File No. 281784
Partition by sale of real estate; motion by plaintiff for immediate hearing on division of proceeds from sale of real estate; claim of laches; accounting; allocation of proceeds; contribution; whether defendant required to contribute to plaintiff's mortgage payments and repairs while only latter resided there with children; claim that plaintiff's use and occupancy was financial benefit to him; whether plaintiff's failure to produce evidence of insurance payments and property taxes paid on home precluded contribution by defendant.
Memorandum filed October 12, 1990
Memorandum of decision on the plaintiffs' motion for an immediate hearing. Motion granted.
Alan E. Silver, P.C., for the plaintiff.
Michael J. Daly III and M. Leonard Caine, for the named defendant.
This particular action comes before this court in an unusual posture. The plaintiff James E. Hackett, initiated this action in March, 1989, against the defendant Suellen Hackett, his former wife, seeking a partition of certain real estate on Jerome Lane in Milford to which the record title since 1972 to date has stood in the names of James E. Hackett and Suellen Hackett and the survivor of them. At the time of purchase in 1972, the Hacketts both executed a purchase money mortgage to the First Federal Savings and Loan Association of New Haven in the amount of $38,300.00. The Hacketts were divorced in April, 1978, after approximately fifteen years of marriage. There was no evidence adduced at the trial before the undersigned that the divorce decree at all operated on this Jerome Lane property so that the record title to it remains as it was acquired in 1972. The plaintiff has lived in these premises since September 1978 and has paid the expenses for them since that time.
This action, as originally brought, also names as defendants, First Federal Savings and Loan Association of New Haven now known as First Constitution Bank (the first mortgagee) and Household Finance Company (the second mortgagee). Early on, the action was withdrawn as to the First Constitution Bank and later during this action the Household Finance mortgage has been paid off.
The Hacketts acquired this property in 1972.
The complaint alleges and the answer admits that "the plaintiff and defendant co-owner hold this real estate as joint tenants and each has an individual one-half (1/2) interest therein."
James Hackett has resided in the Jerome Lane premises since the purchase in 1972, except for a brief period when the divorce proceedings were going on. He did not reside there from April, 1978, to September, 1978, having left for that period because the custody of the parties' two minor children, then aged twelve and fourteen, was being worked out. At the time of the divorce he was awarded the custody of the two children, who have lived there with him ever since except for time attending college. Suellen Hackett has not resided there since about October, 1978.
The defendant has filed a counterclaim in which it is alleged that she and the plaintiff hold this real estate as joint tenants. She also alleges and the plaintiff denies that her "interest in the property exceeds one-half" and her counterclaim sets out that claim as follows: "One-half interest in and to the premises . . . plus the value of the deposit the parties made upon the premises at the time they purchased the same." She further alleges that the deposit made on the premises at the time of purchase was made from funds given . . . as a gift to her; she is equitably entitled to the value thereof and a corresponding increase in the value in her interest in the premises." The plaintiff has denied these allegations. She also seeks a partition as well as a "determination of the respective interests of the parties in and to the premises as demanded by law and equity."
The court Fracasse, J., earlier ordered a judgment of partition by sale and appointed a committee to sell the premises in accordance with that judgment. A sale by the committee has already taken place at which the plaintiff James E. Hackett was the successful bidder with a bid of $110,000.00. The court (Celotto, J.) has approved the committee sale, report and deed as well as the motion for the committee's fee and expenses. Thereafter, the plaintiff filed his motion to extend the closing of the sale because he had also filed his motion for an immediate hearing" . . . for the determination of the respective rights of the parties to the proceeds of 18 Jerome Lane, Milford, CT." The Court (Licari, J.) granted the extension for the closing to October 1, 1990. The "Motion for Immediate Hearing," the purpose of which is to obtain an order determining the division of the proceeds of the sale as between the plaintiff and the defendant, was heard before the undersigned at which time both the plaintiff and the defendant, as well as other witnesses testified, and certain documents were admitted into evidence.
That judgment ordered that the cost of the sale was to be borne jointly between the plaintiff and the defendant.
The Committee sold the premises on June 9, 1990, subject, inter alia, to the first mortgage to First Constitution Bank (formerly known as the First Federal Savings and Loan Association of New Haven). The balance due on this mortgage as of May 31, 1990, was $28,821 upon which amount the interest runs at the rate of 46.20 per day.
The court allowed the Committee a fee of $2800 and the sum of $907.34 for its expenses.
The plaintiff contends that he has paid everything since 1978, and that the defendant, because of her laches has waived any interest in the property and there he relies on Kievman v. Grevers, 122 Conn. 406, 189 A. 609 (1937). He also maintains that if his claim on laches fails he is entitled to contribution from the defendant for the payments concerning this property which he has made since September 1978 for such things as the first mortgage, insurance, taxes, maintenance, repairs and the like. In addition, he disputes the impact on this case claimed by the defendant of Vesce v. Lee, 185 Conn. 328, 441 A.2d 556 (1981).
On the other hand, the defendant claims that she is entitled to one-half of the $110,000.00 bid price minus one-half of the expenses of the committee's sale, i.e. $1,853.67. The defendant also claims that while the plaintiff paid the expenses since September 1978 it must be realized that he has had this property as a residence since that time and that the value of his use and occupancy over that period exceeds the mortgage payments which he has made. She further maintains that the plaintiff's claim that the court consider his payments of the mortgage, real estate taxes and home insurance over these years in the light of Vesce and contends that they are incident to use and occupancy which plaintiff has had since late 1978 and for which he has never made any payment to her. She also claims that she cannot be charged with laches because the plaintiff has waited since late 1978 until early in 1989 to raise his present claims well-knowing that the divorce decree did not address the ownership of the Jerome Lane property. Acceptance of the plaintiff's claims at this point would, the defendant contends, be tantamount to now awarding to the plaintiff her share of the property in the original 1978 divorce decree which did not touch this property at all. It is the plaintiff, not she, the defendant maintains that is guilty of laches.
There is no evidence to explain why the 1978 divorce decree did not operate upon the Jerome Lane property and this court cannot speculate as to any such reason or reasons.
A partition action is equitable in nature. Gaer Bros., Inc. v. Mott, 147 Conn. 411, 415, 161 A.2d 782 (1960); see Varley v. Varley, 189 Conn. 490, 497 A.2d (1983); "Our courts of equitable jurisdiction are empowered to order the sale of any estate, real or personal, owned by two or more persons, when, in the opinion of the court, a sale would better promote the interest of the owners. General Statutes § 52-500. Ordinarily, in a partition by sale, the claims of the parties as to their interests in the property are considered in connection with the distribution of its proceeds. [citations omitted]." Gaer Bros., Inc. v. Mott, supra. In a partition sale, even where each party may be the owner of an individual one-half interest in the property, it does not necessarily follow that he or she will be entitled to equal shares of the moneys obtained from the sale as the "Equities must be considered and, if established, must be liquidated before distribution is ordered. Rentz v. Eckert, 74 Conn. 11, 16, 49, A. 203 [1901]": Levay v. Levay, 137 Conn. 92, 96, 75 A.2d 400 (1950); See Varley v. Varley, supra: Johnson v. Olmsted, 49 Conn. 509, 517 (1882).
Initially, we note that the defendant alleges that the deposit upon this real estate when originally purchased was made from funds given to her as a gift and that she is equitably entitled to the return of that deposit and a corresponding increase in her interest in the proceeds from the sale. The plaintiff's testimony, however, suggests that he be given credit against the sales proceeds involved because he paid the deposit upon the Jerome Lane premises when the parties acquired them in 1972. This court does not agree here with the claim of either party. The amount of the deposit which the plaintiff said that he paid was $7000 and he testified that it came from the sale of a piece of real estate in Waterbury. This deposit, it is claimed, together with the purchase money mortgages in the amount of $38,300 constituted the purchase price.
"It is settled law that where one spouse purchases property entirely with his or her own funds and takes title in the names of both spouses jointly, a rebuttable presumption arises that a gift was intended to the other spouse of a one-half interest in the property . . . . This is the rule whether the person who pays the purchase price is the husband or the wife." (Citations omitted) Osborn v. Osborn, 384 Mass. 591, 602, 428 N.E.2d 810, (1981). Sundin v. Klein; 221 Va. 232 236-37, 269 S.E.2d 787, (1980). Oldham v. Oldham, 192 A. 758, 762 (R.I. 1937); See 3 Pomeroy, Equity Jurisprudence (4th ed.) § 1039. It has been said that the general rule is that when property is paid for by one and taken in the name of another or jointly in both their names, the presumption is that as between husband and wife as to real property a gift is presumed from the husband and that rests upon the proposition that the husband is discharging his duty to provide support for his wife. Becchelli v. Becchelli, 109 Ariz. 229, 232, 508 P.2d 59, (1973). The plaintiff, even assuming that he did pay the deposit as claimed, is not entitled to any "credit" for paying the deposit of $7,000.00 at the time of the purchase in 1942 as there is no credible evidence to rebut the presumption of a gift to her. Although the defendant alleges that she furnished the deposit, there is no evidence upon which the court concludes that she did so. It should be pointed out, however, that there is authority to the effect that the fact that the wife also obligated herself to repay the mortgage loan used toward the purchase price to the same extent as the husband militates toward demonstrating that she furnished consideration at the time of the purchase in 1972. See McPherson v. McPherson, 337 Mass. 611, 614, 150 N.E.2d 727, (1958); Carroll v. Markey, 321 Mass. 87, 89, 71 N.E.2d 756 (1947).
As already noted the parties were divorced in April 1978, and there is no indication that the divorce decree operated in any way on the Jerome Lane property. Actually, counsel have indicated that the decree did not. Therefore, under the statutes, i.e. General Statutes 47-14g their interest in this real estate, as to each other, has been that of tenants in common since the 1978 divorce and each, accordingly, owns of record an individual one-half interest in the Jerome Lane real estate. Moreover, the complaint alleges that at all times mentioned, the plaintiff and the defendant co-owner "hold the [Jerome Lane] real estate as joint tenants and each has an individual one-half (1/2) interest therein; the defendant admits this. Without developing the niceties of real property law, this allegation of the plaintiff is in the nature of a judicial admission in this action, i.e. the plaintiff admits in the pleadings that the defendant owns an individual one-half interest. So, at the outset this means that each party is entitled to one-half of the cash proceeds of the sale, i.e. $55,000.00. It cannot be questioned that each party should pay out of this fund one-half of the costs of the sale, i.e. one half of $3,907.00 or $1,953.50 as the court Fracasse, J., has already so ordered.
General Statutes 47-14g provides: "DIVORCE OR MARRIAGE DISSOLUTION OF HUSBAND AND WIFE JOINT TENANTS. "Whenever a husband and wife are joint tenants in the same real estate, either together or in conjunction with others, a divorce or dissolution of the marriage, unless the divorce decree or decree of dissolution otherwise provides, severs their interests and converts them into tenants in common as to each other but not as to any remaining joint tenant or joint tenants. Such severance does not become effective as to any other persons until a certified copy of the decree or abstract of it, indicating the effective date of the divorce or dissolution, has been recorded in the land records of the town where the real estate is located."
The divorce decree was not offered in evidence nor was there any evidence concerning it except some testimony that the plaintiff was awarded custody of the two minor children and that he is still under an alimony order of $40 per week.
We turn to the plaintiff's claim that the defendant is barred from claiming an interest in this property because of laches. In doing so he points out in his brief his testimony not only of certain moneys expended for repairs and/or improvements but also his contention that, since September 1978 he "has paid the mortgage without any contribution from the defendant . . . [which is for] twelve (12) years at an average of approximately $475 per month for a total of $68,400." Crediting him with these expenses, as he claims he should be, he argues would wipe out any interest of the defendant in this property. On his claim of laches, the plaintiff relies on Kievman v. Grevers, supra asserting that there the court properly refused to apply that doctrine as the court found that the plaintiff had not been prejudiced by the defendant's actions. The present case, he asserts is distinguished from Kievman because here he has been prejudiced by the defendant's conduct. He contends that he has been "forced" to expend much money throughout the years to keep a home for himself and the children. Moreover, the lapse of time here of over eleven years as compared to a three year lapse in Kievman, he asserts supports his position that the defendant cannot simply sit on her rights, gain all the benefits from these payments he has made, while not contributing a penny as well as claiming any interest or right to the property. She, therefore, he concludes is not entitled to any of the proceeds from the partition sale.
On the other hand, the defendant rejects the argument of laches as well as arguing that the plaintiff's reliance on Kievman is misplaced. She particularly refers to those portions of Kievman from pages 408 to page 411, where the Supreme Court affirmed the trial court finding of the inapplicability of laches because the plaintiff had not proved prejudice. She further claims Kievman is inopposite on both the law and the facts because it concerned a special rule of law respecting the purchase of an outstanding adversary claim by the plaintiff cotenant which "required payment of contribution by the other cotenants."
The court is of the opinion that its force is not at all that for which the plaintiff contends. As an examination of that decision discloses, it is factually distinguishable. Moreover, it can fairly be said it stands for the well-settled proposition that a cotenant who, because she has redeemed a mortgage on the common property (in a strict foreclosure) in which she and her cotenant were both liable is entitled to contribution as a type of equitable assignee of the rights of the foreclosing mortgagee so as to be able to enforce that mortgage against her cotenant to the extent of the latter's ability to contribute to its satisfaction. Kievman v. Grevers, supra, 410-11; see 42 A.L.R.2d 1305, 1327. Moreover, we note that in Kievman there was no husband and wife relationship between the parties and no indication that any of the parties were in actual possession of the property involved. The court, however, recognizes the nature of the doctrine of laches as discussed in Kievman, but do not read that case as the plaintiff contends in its application to the present case.
In Kievman, in noting the application of equitable principles to that case, said: "Tenants in common stand in confidential relation to each other in respect to their interests in the common title under which they hold, and since it would be inequitable for one, without the consent of the others, to buy in an outstanding adversary claim in the common estate and assert it for his exclusive benefit to their injury, if he does acquire such claim, he is regarded as holding in in trust for the benefit of all of his cotenants in proportion to their respective interest in the common property, who seasonably contribute their share of his necessary expenditures" Kievman v. Grevers, 122 Conn. 406, 409-10, 189 A. 609 (1937)
The doctrine of laches is is "`such neglect or a omission to assert a right, as taken in conjunction with the lapse of time, more or less great, and other circumstances causing prejudice to an adverse party, operates as a bar in a court of equity.'" 2 J. Pomeroy, Equity Jurisprudence (5th Ed. Symons) § 419. Our Supreme Court has said: "Laches consists of two elements. `First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant." Kurzatkowski v. Kurzatkowski, 142 Conn. 680, 685, 116 A.2d 906 (1955); Kievman v. Grevers, [supra, 411]; 27 Am. Jur.2d. Equity § 152. The mere lapse of time does not constitute laches; Finucane v. Hayden, 86 Idaho 199, 206, 384 P.2d 236 (1963); 27 Am. Jur.2d, Equity § 163; unless it results in prejudice to the defendant; see Leary v. Stylarama of New Haven, Inc., 174 Conn. 217, 219, 384 A.2d 377 (1978); Bianco v. Darien, 157 Conn. 548, 556, 254 A.2d 898 (1969); as where, for example, the defendant is led to change his position with respect to the matter in question. Pukas v. Pukas, 104 R.I. 542, 545-46, 247 A.2d 427 (1968)." Bozzi v. Bozzi, 177 Conn. 232, 239 413 A.2d 834 (1979.)
"The burden of proof as to the existence of laches is on the party asserting it. . ." A. Sangivanni Sons v. F. M. Floryan Co., 158 Conn. 467, 476, 262 A.2d 159 (1969); Cleary v. Zoning Board, 153 Conn. 513, 518, 218 A.2d 523 (1966). The conclusion whether a party has been guilty or not of laches is a factual determination. Berin v. Olsen, 183 Conn. 337, 344, 439 A.2d 357 (1981); Kurzatkowski v. Kurzatkowski, supra, 684.
The plaintiff has lived in the Jerome Lane property since the 1978 divorce and has had complete use of it since that time. Living with him since that time are the two children of the parties. The children are now aged twenty-six and twenty-four. The plaintiff had made all the mortgage, taxes and insurance payments since the divorce. He has also paid for certain repairs and improvements there which he maintains cost him about $2755. He is under an alimony $40 per week and would appear to be relatively current on that order. The defendant lives in Waterbury. She maintains that the alimony payment is her only income. She is unemployed, has no other assets and and pays for her rent and food from money which she borrows and is obligated to repay. The plaintiff knew where she was over the period in question, from 1978 to 1989, although "not all the time." He felt that he was free to repair and/or improve the premises. He never consulted the defendant concerning any of the repairs and/or improvements as it would have been "pointless" according to him. There is no evidence that he ever attempted to get her to contribute to the mortgage, taxes or insurance payments. The defendant visited the premises rarely over the period involved; she did not inquire of the plaintiff concerning the mortgage, taxes or insurance payments nor specifically concerning the repairs and/or improvements. There is no credible evidence that the parties even spoke with one another since 1978 concerning any payments the plaintiff made over the period involved. It was not until the present action was instituted by the plaintiff in 1989 over ten years after the divorce that these matters became contested between them. As pointed out, during that period the plaintiff has had the complete use and occupancy of these premises. Equitably, this cannot be overlooked in this case, given the available credible evidence, especially of a financial nature, of what the plaintiff has paid in living there. An objective view of what the use and occupancy fairly cost him over the entire period indicates that it was in a reasonable range. In that connection, "The trier of fact need not close its mind to matters of common knowledge solely because the evidence includes no expert testimony on those matters. Way v. Pavent, 179 Conn. 377, 388, 426 A.2d 780 (1979). "Nor can judges exclude from their minds realities of which fair decisions would call for judicial notice." Silver Chrysler Plymouth Inc. v. Chrysler Motor Corporation, 518 F.2d 751, 753 (2d Cir 1905); State v. Jones, 180 Conn. 443, 455, 429 A.2d L 936 (1980). He also admittedly had a free hand to repair and/or improve it and this without any effort on his part to consult, by contact or otherwise with the defendant, about the repairs or any of the questions now raised. Of course, this is not to say that she could not have undertaken to do so. It is the plaintiff, however, who has raised laches, not the defendant. Equity looks to the substance of a matter not to mere form. Connecticut National Bank v. Chapman, 153 Conn. 393, 397, 216 A.2d 814 (1966) and it never does anything by halves. Barber v. International Co., 73 Conn. 587, 605, 48 A. 758 (1901). The burden to prove laches is on the plaintiff and, after balancing the equities, the court concludes on the credible evidence that the plaintiff has not sustained his burden on either of the two elements of laches, either inexcusable delay or prejudice to himself whereby he was led to change his position. Bozzi v. Bozzi, supra.
We next turn to Vesce v. Lee, supra, particularly as the parties claim it applies to the matter of contribution for mortgage payments, repairs and the like. The defendant relies on Vesce arguing that the plaintiff has neither alleged nor attempted to prove any agreement by her to make any such contributions as well as to his admission that he never made any such claim prior to bringing this action. Therefore, she maintains that the presumption exists, as set out in Vesce, that "when . . . parties have been living together [as] husband and wife, there is a presumption that, when one party vacates the commonly owned family residence, future expenditures will continue to be made for the joint benefit of the cotenants. In other words, the simple fact that the [defendant] vacated the family home, leaving the [plaintiff] in possession, was not sufficient to rebut the presumption that the parties intended that all expenditures made after the separation, even if made by only one of them, would continue to accrue for the benefit of both without any further accounting or contribution" Id., 336. The plaintiff's answer is that Vesce is distinguishable from this case because here the Hackett mortgage was taken out in the names of both the plaintiff and the defendant by so doing "agreed to be responsible for the mortgage," and that, unlike Vesce, there was an agreement in this case.
Here the Vesce court cited inter alia "Seidel v. Seidel, 110 Conn. 651, 656, 149 A.2d 394 (1930); see Neumann v. Neumann, 134 Conn. 176, 178-79, 55 A.2d 916 (1947). Vesce v. Lee, 185 Conn. 328, 336-37, 441 A.2d 556 (1981). In making her claim in this case the defendant draws heavily on the language from Seidel that is set out in Vesce. See id., 337, as well as on Seidel itself.
The court is inclined to accept the plaintiff's view as to Vesce as applied to this mortgage including the tax and insurance payments. The presumption referred to in Vesce is to be considered in this case. As Vesce notes, however, the mere fact that the defendant vacated is not sufficient to rebut that presumption. There is, however, more than that in this case.
Under the circumstances, the defendant knew that the plaintiff had been living at the Jerome Lane property with the children from 1978 to 1989 and she also knew that this first mortgage which she had signed was being paid or if it had already been paid off that she had not, in either case, paid any money on it (including the taxes and the real estate insurance).
In addition, the defendant having lived there for about six years before the divorce, it is not unreasonable to impute to her some knowledge that reasonable repairs and/or improvements are required during an eleven year period, i.e. from 1978 to 1989. This court, therefore, inclines to the view that Vesce does not control here and that the payments on the first mortgage (which included taxes and insurance) and repairs and/or improvements were not, after September 1978, to "continue to accrue without any future . . . contribution." Cf. Vesce v. Lee, supra. Each party had the opportunity to speak or contact the other concerning these payments yet did not. The plaintiff, however, continued to make them and the defendant, who was equally liable for them, cannot now equitably be heard to say that she has no responsibility for them insofar as that responsibility can be translated into dollars out of the sales proceeds.
"The liability of a cotenant who has been in possession of the common property arising from his use and occupancy thereof may be affected by the nature of the proceeding in which the matter requires determination. When, in a suit for partition or other proceeding between cotenants in equity or in which equitable powers may be exercised, an occupying cotenant seeks contribution from his cotenant, the court, in some jurisdictions as incidental to the relief sought and by way of adjusting the rights of the parties, may charge the claimant defensively, with at least part of the reasonable value of his use and occupancy. . . ." (Emphasis added) 20 Am. Jur.2d, Cotenancy and Joint Ownership § 44.
"[T]he general rule [is] that in the absence of an agreement to pay or ouster by the cotenant in possession, a tenant in common who occupies all or more than her proportionate share in the common premises is not liable, because of such occupancy alone, to her cotenant for the rent or the use of the premises. Williams v. Sinclair Refining Co., 39 N.M. 388, 47 P.2d 910 (1935); Hunter v. Schultz, 240 Cal.App.2d 24, 49 Cal.Rptr. 315 (Dist.Ct.App. 1966); Lanigir v. Arden, 85 Nev. 79, 450 P.2d 148 (1969). there is, however, an exception to this general rule. When a cotenant in possession invokes the jurisdiction of a court of equity to obtain contributions from the cotenant out of possession for funds expended for the betterment of the common interest, the cotenant out of possession may defensively charge the cotenant in possession with a part of the reasonable value of the occupancy or use by the cotenant in possession and in some cases may hold the cotenant in possession accountable for profits realized from the premises. Hunter v. Schultz, supra; Lanigir v. Arden, supra; 20 Am. Jur.2d Cotenancy and Joint Ownership § 44 (1965); 68 C.J.S. Partition § 41 (1950)." (Emphasis in original) Chance v. Kitchell, 99 N.M 443, 445, 659 P.2d 895, (1983); see Lanigir v. Arden, supra, 81; 20 Am. Jur.2d, Cotenancy and Joint Ownership, § 44. This exception comports with the equitable considerations to be considered because as Professor Casner has said "Since partition settles the relation existing between the cotenants [as to the jointly owned property] all equities arising out of that relation are finally adjusted by the final decree." 2 A. Casner, American Law of Property § 6.26, p. 117. The plaintiff by his demand for contribution has brought himself within this exception and having done so, it should, if possible, be reflected in the division of the proceeds of the sale. At the trial the defense indicated that it was not making a formal claim for entitlement to payment for use and occupancy as its trial brief asserted which included the citation of Lerman v. Levin, 14 Conn. App. 402. 541 A.2d 523, cert. denied, 208 Conn. 813, 546 A.2d 281 (1988). The defense, however, does emphasize that the plaintiff "has had complete use and occupancy of the premises for approximately twelve years at very reasonable monthly payments for mortgage, insurance and taxes." The money from the sale in partition "is to stand for the land" in making necessary orders for the protection of the rights of the parties. Johnson v. Olmsted, supra, 519.
"[C]ontribution involves a claim for reimbursement of a share of a payment necessarily made by the claimant which equitably should have been paid in part by others." Kaplan v. Merberg Wrecking Corporation, 152 Conn. 405, 412, 207 A.2d 732 (1965); see Kievman v. Grevers, supra 409-10. It is based not on contract, but upon that equitable principle that those voluntarily assuming a common burden should bear it equally. Fidelity Casualty Ins. Co. v. Sears Roebuck, Co., 124 Conn. 227, 231-232 199 A.2d 93 (1938); see 18 C.J.S. Contribution §§ 1, 3. Our Supreme Court has said that "actions for contribution are based upon the principle, equitable in origin, but now recognized in courts of law, that where one person has been compelled to pay money which others were equally bound to pay, each of the latter in good conscience should contribute the proportion which he ought to pay of the amount expended to discharge the common burden or obligation." Azzolina v. Sons of Italy, 119 Conn. 681, 692, 179 A. 201 (1935); see 18 Am. Jur.2d Contribution § 31. Contribution may operate "wherever one has paid more than his share of a joint obligation, [and] he may, in general, recover the excess from those bound with him." 18 Am. Jur.2d, Contribution § 31.
On the contribution phase of the matter we turn to the mortgage on the Jerome Lane real estate which the evidence indicates was undertaken as the obligation of both parties. It was stipulated that the present balance on the mortgage was $28,821 with interest on that amount accruing at the amount of $6.20 per diem. There is no dispute that the plaintiff has made all the mortgage payments since September, 1978. The plaintiff testified that the mortgage payments include payments of taxes and insurance. The plaintiff's brief maintains that he "has paid the mortgage since September 1978, without any contribution from the defendant [and that] this is twelve (12) years at an average of approximately $475 per month for a total of $68,400." The plaintiff, however, does not point out how he gets this figure of approximately $475 per month on the evidence adduced in this case. There is not in evidence in this case any cancelled check, any receipt, any book of record, any proof of payment of any payment claimed to have been made by the plaintiff. It is true that the mortgage which was originally (in 1972) in the amount of $38,300 now has a principal balance of $28,821 and that the original 1972 mortgage (a copy of which is in evidence) states that the monthly payment is to be $275 and the court credits that as well as the plaintiff's statement that he has paid this mortgage since September 1978. He also testified that the present monthly payment is now $560 and he maintains that that is so because the taxes and insurance payments have increased. There is, however, no evidence as to what the tax and insurance payments were in September 1978, at what time or times each have increased over the years since that time or what the increases have been at the time or times of the increases even assuming, without knowing, there was even only one increase for each. The plaintiff simply testified, without reference to any timeframe except from September 1978 to the time of trial that the taxes had increased from $1,200.09 to $3600 per year and he said that the cost of insurance had increased.
The figure of $560 per month might be the present monthly payment as he states but, there is no evidence to show what increments over the years were involved to get to that figure, including its components. The court is not saying that precision or mathematical exactitude is needed for such evidence, but there should be evidence, with such certainty as the nature of the particular case may permit such as to lay a foundation which will enable the trier to make a fair and reasonable estimate. See Waterbury Petroleum Products, Inc. v. Canaan Oil Fuel Co., 193 Conn. 208, 226, 477 A.2d 988 (1984). It is recognized that there may be cases where proof of such claims, as with damages, are difficult, but it is relevant here to remember that "the court must have evidence by which it can calculate damages, which is not merely subjective or speculative, but which allows for some objective ascertainment of the amount." Bronson Townsend Co. v. Ballistoni, 167 Conn. 321, 326-27, 355 A.2d 299 (1974). Moreover, to do so, there must "be such evidence as the nature of the particular case permits." See Waterbury Petroleum Products, Inc. v. Canaan Oil Fuel Co., supra. It is submitted that it is not at all unreasonable to say that the nature of this case permitted much more certainty as to the nature of the evidence to support the plaintiff's claim here than was offered. The plaintiff, who is seeking contribution and has the burden in that claim, has paid all the bills, yet not only was there a lack of testimony on how and when the taxes and insurance increased over the years, especially as to incremental increases, but, as pointed out earlier not one single cancelled check, receipt and the like was introduced into evidence. "Equity is a two-way street and must be recognized as such whereon the court employs equity to resolve a dispute." Jerry Harmon Masters Inc. v. Heth, 316 N.W.2d 324, 329 (N.D. 1982). The lack of evidence, therefore, upon which to accept the plaintiff's claim of an average of approximately $475.00 per month for approximately twelve years obviously seriously blunts the thrust of the $68,400.00 contention. The only hard evidence before the court of any figure of the mortgage that fairly extends over the entire period from September 1978 to the time of trial is the monthly payment of $275 on principal and interest. Starting with September 1978 and through September 1990 these monthly payments amount to a gross figure of about $39,875. The plaintiff and defendant had a right to an undivided one-half of this real estate. As to mortgage payment, which includes the taxes and insurance, to which she has never contributed, her share of this obligation set at that she is to contribute now to the plaintiff on this matter is 50 percent of $39,875, which is $19,937.50. If the evidence furnished any reasonable basis, which as pointed out earlier is lacking, it would require her share of the sales proceeds to be further diminished by having "contribute" 50% of the taxes and insurance would be appropriate. The evidence, however, does not furnish any such for any reasonable basis and it would be indulging in pure speculation for the court to come up with any such figures. It is also pointed out that, considering the complete use and occupancy of the Jordan Lane premises which the plaintiff has enjoyed since 1978, that equitably the amount of $19,937.50 is fair and proper for the plaintiff to "contribute" here as well as that amount is one that it is fair and proper for the plaintiff to receive. It is, therefore, concluded that the amount which the defendant must "contribute" to the plaintiff out of the sales proceeds with reference to the mortgage, taxes and insurance claim of the plaintiff is $19,937.50.
As to repairs and improvements, the plaintiff claims that since September, 1978, he has had the expenditure of $3375 for the following:
There is no evidence in the present case of the value of the real estate involved at any time since 1972, when the purchase price paid appears to have been $45,300.
(1) Installation of wall to wall carpeting in the family room and living room . . . . . $1500
(2) Purchase of a new hot water heater . . . . . $ 400
(3) Replacement of flooring in the kitchen and foyer . . . . . . . . . . . . . . . . . $ 675
(4) Replacement of gutters on house . . . . . . $ 600
(5) Purchase of new storm windows and doors . . $ 200 ----- $3375
A "`repair' restores the original condition" and "`an improvement' changes, supposedly for the better, the original condition." See Masterson v. Atherton, 149 Conn. 302, 312, 179 A.2d 592 (1962). It seems fair to the court that from the defendant's share of the sales proceeds she "contribute" 50 percent of these expenses which is $1687.50 whether any or all of them be called an "improvement" or "repair." All appear to be reasonable.
To recapitulate, the proceeds of the sales price of $110,000 are ordered to be divided as follows:
At the trial the defendant produced a certified public accountant who testified, inter alia, concerning certain tax consequences to the parties arising out of this lawsuit. This testimony was offered on the defendant's claim that she was entitled equitably to one-half of the capital gains tax liability from the proceeds of the sale. He testified concerning the amount of the capital gains tax both under federal and state law which the defendant would incur in the event that she was awarded 50 percent interest in the proceeds of this sale of the Jerome Lane real estate. That witness indicated in answer to a hypothetical question in that regard that given her present income of only $40 dollars per week from her alimony payment that she becomes subject to a total of about $12,000 in capital gains taxes (about $9000 on the federal level and about $3000 on the state level). On cross-examination, however, that accountant stated that these figures were "speculation depending on the amount that's awarded." An "award" can fairly be said to mean "a judgment or finding upon a disputed matter submitted for decision." People ex rel. Halloch v. Hennessy, 205 N.Y. 301, 308, 98 N.E. 516, 131 N.Y.S. 327 (1912). The award here is not on the order of $55,000 but is $31,421.50. Accordingly, the accountant's opinion cannot be accepted by this court so and no allowance for any resulting capital gains tax liability of the defendant can be made.
To plaintiff James E. Hackett plaintiff's 50 percent share in 18 Jerome Lane $55,000.00 minus 50% of the costs of the committee sale 1,953.50 ---------- $53,046.50
plus contribution by defendant for 19,937.50 mortgage payments, insurance and taxes plus 50 percent contribution from defendant for improvements and/or repairs 1,687.50 ---------- Total to be paid to plaintiff $74,671.50
To defendant Suellen Hackett Defendant's 50 percent share in $55,000.00 18 Jerome Lane minus 50 percent of costs of committee sale 1,953.50 ---------- $53,046.50
minus contribution to plaintiff for mortgage payments, taxes and insurance 19,937.50 ---------- $33,109.00
minus contribution of 50 percent to plaintiff for improvements and repairs 1,687.50 ---------- Total to be paid to the defendant $31,421.50
Therefore, on the plaintiff's motion for immediate hearing it is ordered that the sale proceeds of 110,000 dollars be paid out as follows:
To the plaintiff James E. Hackett $74,671.50 To the defendant Suellen Hackett $31,421.50.