Superior Court of Connecticut, Judicial District of New Haven, New Haven
MEMORANDUM OF DECISION
Robin L. Wilson, J.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On June 26, 2014, the plaintiff, Anthony Caruso, filed a partition action pursuant to General Statutes § 52-495 against the defendant, Vincia Caruso, concerning real property known as 97 Maplewood Terrace, Hamden, Connecticut (property). The complaint alleges the following facts. On or about February 25, 1992, by virtue of a warranty deed at Volume 1209, Page 62 of the Hamden land records (land records), the parties were conveyed the property as joint tenants, with a right of survivorship. On or about August 17, 2010, the parties were divorced by virtue of a dissolution agreement (dissolution agreement) dated August 12, 2010, and approved by the court, Markle, J., on August 17, 2010, which was incorporated into a judgment of dissolution of marriage. Pursuant to Article 9(a)(iii) of the dissolution agreement, the parties agreed that either party could file a partition action to force the sale of the property. The property is currently encumbered: (1) by a mortgage in the original amount of $237, 000 from the parties to New Century Mortgage Corporation dated December 15, 2005, and recorded in the land records at Volume 3075, Page 300 (mortgage); (2) by an assignment of the mortgage to U.S. Bank National Association as Trustee under Pooling and Servicing agreement dated as of March 1, 2006 Asset Backed Securities Corporation Home Equity Loan Trust, Series NC 2006-HE2 Asset backed Pass-Through Certificates, Series NC 2006-HE2 dated April 29, 2009, and recorded on May 22, 2009, in Volume 3603, Page 223 of the land records; (3) by an unreleased Lis Pendens in favor of the Greater New Haven Water Pollution Control Authority dated February 17, 2010, recorded on February 24, 2010, in Volume 3689, Page 242 of the land records; and (4) a Notice of Lis Pendens filed contemporaneously with the filing of the present action. The plaintiff asks the court to order, in the exercise of its equitable powers, a partition by sale of the property or, solely as an alternative remedy, a partition in kind.
On July 21, 2014, the defendant filed an answer wherein she either agrees with or leaves the plaintiff to his proof regarding the above allegations. The defendant did not raise any special defenses or counterclaims. The matter was tried to the court on January 20, 2015 and March 26, 2015. Pursuant to the court's order at the conclusion of the trial, the defendant filed a post-trial brief on May 8, 2015, and the plaintiff filed his proposed findings of fact and conclusions of law on May 11, 2015.
STANDARD OF REVIEW
" It is well established that in a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony . . . The credibility and the weight of expert testimony is judged by the same standard, and the trial court is privileged to adopt whatever testimony he reasonably believes to be credible . . . It is the quintessential function of the factfinder to reject or accept certain evidence, and to believe or disbelieve any expert testimony . . . The trier may accept or reject, in whole or in part, the testimony of an expert offered by one party or the other." (Citations omitted; internal quotation marks omitted.) In re Carissa K., 55 Conn.App. 768, 781-82, 740 A.2d 896 (1999). See also In re Jason R., 129 Conn.App. 746, 772-73, 23 A.3d 18 (2011).
" It is an abiding principle of our jurisprudence that [t]he sifting and weighing of evidence is peculiarly the function of the trier [of fact]. [N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to their testimony . . . The trier has the witnesses before it and is in the position to analyze all the evidence. The trier is free to accept or reject, in whole or in part, the testimony offered by either party." (Citations omitted; internal quotation marks omitted.) Welsch v. Groat, 95 Conn.App. 658, 664, 897 A.2d 710 (2006).
BURDEN OF PROOF/STANDARD OF PROOF
The burden of proof is on the plaintiff to prove all of the essential allegations of its complaint. Lukas v. New Haven, 184 Conn. 205, 211, 439 A.2d 949 (1981). The appropriate standard of proof in a partition action based on a theory of equitable ownership is a fair preponderance standard. Cook v. Allstate Insurance Company, Superior Court, judicial district of Tolland, Docket No. 52896, 1996 Conn. Super. LEXIS 3228(Dec. 5, 1996, Rittenband, J.). The ordinary civil standard of proof is the fair preponderance of the evidence standard. Freeman v. Alamo Management Co., 221 Conn. 674, 678, 607 A.2d 370 (1992). " The burden of persuasion in an ordinary civil action is sustained if evidence induces in the mind of the trier a reasonable belief that it is more probable than otherwise that the fact in issue is true." (Internal quotation marks omitted.) Lopinto v. Haines, 185 Conn. 527, 533, 441 A.2d 151 (1981). The standard of proof, a fair preponderance of the evidence, is " properly defined as the better evidence, the evidence having the greater weight, the more convincing force in your mind." (Internal quotation marks omitted.) Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981).
TESTIMONY OF WITNESSES
The court heard testimony on January 20, 2015, and March 26, 2015. The court first heard testimony from the plaintiff's expert, Shane Trotta, the plaintiff's residential real estate appraiser, on January 20, 2015. On the basis of an exterior viewing of the property, Trotta testified that the property's land is about a quarter of an acre, and the property's dwelling is an average, 1, 000-square-foot, ranch-style home with three bedrooms, one bathroom, an unfinished basement, and no garage. Trotta created a report, (first report) dated January 8, 2015, on the basis of his inspection. Trotta explained that an interior inspection of the property was not necessary, and that any assumptions he made as to the interior of the property were reflected in this first report and in the appraised value of the property. Trotta determined that the fair market value of the property is $155, 000 by utilizing the sales comparison approach, which he testified is the most common and reliable method for single-family residential properties.
Thereafter, on March 26, 2015, Trotta continued his testimony and testified that he completed an interior inspection of the dwelling on the property on February 6, 2015, while the defendant was present, and that he discovered during that inspection that the kitchen was updated, there were wood floors throughout the home, and that the bathroom, although outdated, was well-maintained. Overall, Trotta found the dwelling to be in an average condition for the neighborhood and market area. Trotta also created a new report, dated February 6, 2015, in which he corrected mistakes in the first report concerning the type of siding and the lack of gutters on the dwelling. He noted the updated kitchen, the outdated bathroom, that there were minor repairs to be made to the exterior of the dwelling, and that there was a side porch on the dwelling. Notwithstanding the corrections to his report, Trotta opined, using the same sales comparison approach, that the fair market value of the property remained at $155, 000 because the updated kitchen and general condition of the dwelling's interior offsets the necessary exterior repairs and missing gutters, and the fair market value was supported by a recent sale of a similar property for $153, 000. Additionally, as to the practicality of physically dividing the property rather than selling it, Trotta opined that dividing the property would negatively impact the value of the property because doing so would make it hard to control, sell, market, and finance, and he had never seen a buyer interested in owning a fraction of a piece of residential real estate.
The court next heard testimony from the plaintiff. The plaintiff testified that he and the defendant, his now ex-wife, purchased the subject property together while they were married, and that they both took out a loan, secured by a mortgage, they are both responsible for said loan, and the loan and the mortgage were executed while the parties were still married. The plaintiff further testified that the parties entered into a dissolution agreement, through the mediation process, and that the parties were unrepresented by counsel during that time. The plaintiff testified as to the terms of the dissolution agreement and article 9(a) of the dissolution agreement and his understanding of same, which provides that: (1) the parties agreed not to sell the property in order to minimize disruption to their children; (2) the defendant and their children would remain in the property; (3) the parties would remain joint owners of the property, with rights of survivorship; (4) the plaintiff would be responsible for and liable on the loan and the mortgage until the property was sold or, refinanced and the plaintiff's name was removed from the documents; and (5) " [t]he parties [understood] that if they [could not] agree in the future whether to sell the home, either party [would have] the right to file a partition action to force the sale." See Tr. Tran., March 26, 2015, pp. 23-26; Pl.'s Ex. 4.
The plaintiff further testified that subsequent to the court's approval of the dissolution agreement on August 17, 2010, he asked the defendant to sell or refinance the property and filed motions with the family court requesting that the court order the defendant to sell or refinance. He testified that the parties executed a written agreement (agreement), dated April 24, 2013, regarding the sale or refinance of the property, which was presented to and accepted by the court, Burke, J. The plaintiff testified as to the terms of that agreement which again provides that the plaintiff would have the right to force the sale of the property, however, he would first have to give the defendant a chance to refinance the property and remove his name from the mortgage/loan. The plaintiff testified that the defendant failed to refinance the property.
The plaintiff testified that the defendant did not always pay the mortgage on time. The plaintiff further testified that he obtained a document titled Home Affordable Modification Agreement (modification), executed on March 13, 2013, and March 15, 2013, through the bank holding the mortgage, which he claims that he did not execute although his signature appears on the document. The plaintiff testified that his signature was from a different modification application and that he complained about this error to the North Branford Police Department, the banking commission, and Senator Richard Blumenthal. The plaintiff acknowledged, however, that, notwithstanding his complaints, the modification is operative and in effect, and includes principal reductions of the loan amount. The plaintiff further acknowledged that the payoff statement provided by the loan servicer, Ocwen, states that the total payoff amount is $132, 122.
The plaintiff testified as to the reasons for his request for a partition by sale. The plaintiff testified that, contrary to the defendant's claim, he is not requesting a sale of the property because he is vengeful, but because he no longer wants his name on the mortgage, nor to be liable under the loan/mortgage, his long-term plan is to retire in thirty-nine months, he is concerned that if the defendant makes a late payment, which he alleges she has done in the past, it could ruin his credit and his ability to get another job, he wants the dissolution agreement enforced, and he believes that it would be impractical to physically divide the property. The plaintiff further testified that his reasons for seeking a partition is because the property is worth more than the current debt owed; and the existing debt affects his credit as it has shown up on his credit report as a debt. The defendant acknowledged that he was able to purchase another home in December 2014, however, it was done through a non-traditional private lender, for which he had to pay a higher interest rate, and had to make a large down payment on the home, which funds were obtained through the sale of his current wife's condominium.
The plaintiff further testified that the property should be sold because, consistent with the dissolution agreement, the parties' children no longer reside at the property. He also believes that the parties' interests are better promoted by a sale of the property because a sale will improve his credit, remove a debt in his name concerning property that he neither lives in nor has control over, give him financial peace of mind as he cannot control the defendant's timeliness in making the mortgage payments, make it easier for him to retire, and provide the defendant with any net proceeds pursuant to the dissolution agreement.
The defendant, Vincia Caruso, testified in the plaintiff's case in chief and agreed that the dissolution agreement allows for either party to force the sale of the property. She acknowledged that the plaintiff wants the property sold. The defendant called Annemarie Cacace, her mother, to testify on her behalf. Cacace testified that because the plaintiff was sending his alimony checks late, she would help the defendant make the mortgage payments to keep them timely, and the defendant would repay her upon receipt of the alimony checks. Cacace testified that the mortgage payments were approximately $2, 000 a month, although the plaintiff's prior testimony indicated that the payments were higher.
The defendant testified in her own defense, and also testified as to her understanding of the terms of the dissolution agreement which she believed that, because the loan-to-value ratio was such that a sale of the property in the economic climate likely would have resulted in a deficit, the property would not be sold at that time and she could remain in the property indefinitely rather than sell it at a loss, she was to have exclusive occupancy of the property, and she was responsible for all bills, which she testified that she has paid. The defendant further testified that she did not believe that there would be any profit if the property were sold, she did not have anywhere else to live, and she will have nothing to leave to her children. She also testified that the modification is proof that she makes her mortgage payments timely as the mortgage company would have " reneged on this agreement" otherwise. See Tr. Tran., March 26, 2015, p. 103.
FINDINGS OF FACT