NOTICE: This opinion is subject to motions for rehearing under Rule 22 as 

well as formal revision before publication in the New Hampshire Reports. 

Readers are requested to notify the Reporter, Supreme Court of New 

Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 

editorial errors in order that corrections may be made before the opinion goes 

to press. Errors may be reported by E-mail at the following address: 

reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 

a.m. on the morning of their release. The direct address of the court's home 

page is: http://www.courts.state.nh.us/supreme.

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.
2

The parties met in 1991. In 1993, the respondent purchased a twofamily 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 
3

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
4

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.”
5

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 
6

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.
7

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 
8

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.