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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 an d orally , for the

p etitioner

.

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 p etitioner

, Renee M. Brooks, and denying

the responde nt’s cross

- petition to partition . We affirm.

The relevant facts follow. The p etitioner and the responde nt lived together for approximately twenty years from 1993 to 2013, except for an 18

- month period of separation in 2006

- 2007

. T hey are the parents of a son who

was born in 1996

.2

The parties met in 1991. In 1 993, the responde nt purchased a two

family apartment building in Haverhill, Massachusetts

. The deed and

m ortgage were in the responde nt’s name only

. The parties resided in one of the apartments and rented the other; the rental income cover ed the mortgage
payments. The trial court found that b oth the petitioner and the responde nt “performed renovations and upkeep on the property, with funding for the repairs and maintenance coming largely from [the responde nt] , aided by the proceeds from the mortgage. ” Both parties contributed financially to the household, with the responde nt 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 the y 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 responden t’s name only

. The trial court found that the money for the down payment on the Atkinson property cam e from the sale s of the

Merrimac land and the Haverhill ho us e , and the parties’ savings. The court

also found that “ [the responde nt’s] savings far exceeded the savings contributed to the down payment by [the petitioner ] as [she] had remained at home during this t ime frame to care for their son .”

From 1998 through early 201 3, 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 petiti oner ] 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

resp onsibilit

y of the expenses of the family unit.”

In 2003, the parties , as joint borrowers, entered into a h ome e quity credit

a greement secured by a mo rtgage on the Atkinson property. The November 1998 mortgage in the responde nt’s name alone was discharged. Under the

terms of the credit agreement, each party was individu ally liable for the full

amount of the credit line. T he respon d e nt , however, was in control of the

credit line and he alone withdrew funds from it.

I n 2007

, the parties , as joi nt 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 responde nt] would pay the mortgage and expenses on the Northwood property and the 2003 line of credit on the Atkinson property while [the

p etitioner ] would be responsible for all of the other expenses of the Atkinson3

property (real estate t axes, 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 responde nt] doing the majority of the physical labor.”

Th e p arties refinanced th e Northwood property several times

. In 2008,

the y jointly obtain ed a mortgage

, and discharg ed the 2007 mortgage that was

in the responden t’s name only

. In 2009

, they jointly obtain ed 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 application s , the responde nt represented that his monthly income was $1,413 and that he did not own any property. T he p etitioner represented that her monthly income was $ 8,036 and that she owned the

Northwood property, the Atkinson property, and a property in Haverhill

, Massachusetts

. T he parties thereafter jointly executed a mortgage secured by the Northwood property , an d discharged t he 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 responde nt, however, was in full control of the credit line

and he alone withdrew funds from it. The parties execu ted a new mortgage secured by the Atkinson property, and the 2003 mortgage was discharged.

In 2013, the p etitioner moved out of the Atkinson property when she

received a letter from the responden t’s attorney notifying her that if she did not

leave she wo uld be evicted. Upon the advice of his attorney, the responde nt withdrew the remaining balance of approximately $59,000 on the 2012 Atkinson credit line so that the p etitioner c ould not access those funds.

The trial court found that the responde nt’s yearly mortgage payments on the Northwood property for the years 2007 through 2012 were , respective ly: $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 responde nt’s ] yearly tota l gross income ” reported on his federal tax returns was

, respective ly : $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 20 05; $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 p etitioner requested that the trial court order that the4

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

c ourt “grant such further relief as is fair and just.” In count two, the p etitioner 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 liabili ty for any debts or loans entered into by the p etitioner

, whose funds were used by the responde nt “individually, or by the parties jointly, to invest in or maintain real

estate.” The responde nt 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 , t he 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

p etitioner was entitled to $70,209.19. Regarding the Atkinso n 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 p etitioner was entitled to $50,217. The court ordered

the responde nt either to sell the Northwood and Atkinson properties

, or to
refinance or otherwise discharge the mortgages

, and to pay the petitioner $70,209.1 9 for her interest in the Northwood property and $50,217 for her interest in the Atkinson property.

On appeal, the responde nt a sserts that the trial court erred in

“ determining the equitable rights of unmarried parties to a particular jointly owned proper ty 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 responde nt] 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 mu ch 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 partners hip” and then “entered a sixty

- forty percentage split of said equity without fully explaining how or why it came up with that

formula.” The responde nt further argues that “s ome of the trial judge’s findings of fact were not supported by the evidence and w ere 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) ( “W e 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 requirem ents 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 admin ister 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)

.

P ar tition actions are governed by RSA chapter 547

- C

, which vests the trial court with broad power to determine the rights of those with a n 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 a nd consider the special circumstances of the case, in orde r 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 divis ion in the manner hereinafter provided.” RSA 547

- C:1 (2007) ( e mphasis 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 bef ore it, the

court may consider: the direct or indirect actions and6

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 pr operty 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) ( e mphasis added)

. The statute’s provisions “ are to be

l iberally 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, a fter 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 Co urt further finds that [the responde nt] was able to contribute more financial and physical resources than [the

p etitioner ] and that his contribution was more consistent than [the

p etitioner ’s ] . For this reason, the Court will not award a 50

- 50 split of th e property/interest in the property subject to the partition action, but in general terms hereby orders a 60

- 40 split

with [the responde nt] receiving the larger share. However, [the responde nt] 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 responde nt argues that in determining the parties ’ equitable rights,

the trial court erred in award ing a “divorce

- like” settlement . The responde nt
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 res ponde nt , 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, c hild support, p roperty 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 consi deration 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 implie d 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 domest ic 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 theor

y. 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 jurisdict ion 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 pur sua nt 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 distri bution 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 p etitioner did not seek a “divorce

- like” remedy; rather, she sought , under RSA chapter 547

- C, an equitable determination of her rights in8

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. T he trial court ’s

characterization of the parties’ relationship as “domestic partners” did not alter

either the under lying nature of the petition , or the propriety of the court’s analysis

. The responde nt a ssert s that because the trial court stated that it

would not award a “ 5 0

- 50 ” split of the interest in the properties

, it must have been treating this petition as one f or 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 wa s tied to

its consideration of the factors set forth in the p ar t ition statute

, whereby

, in determining what is fair and equit able

, 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 demonstrate s that the responden t’s contributions were greater than the p etitioner ’s, the trial court acknowledged that the equitable

interests in th e properties were not equal and thus it would order a “60

- 40 split with [the responde nt ] receiving the larger share.”

T he responde nt 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 r easonably be made.”

Although there was conflicting evidence presented at trial

, a s the trier of

f act, the trial court was “in the best position to measure the persuasiveness and credibility of evidence and [wa s ] not compelled to believe even

uncontroverte d 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 supporte d by the evidence and are not

erroneous as a matter of law. Accordingly, we will not disturb the court’s findings. See i d

.

Affirmed

.

DAL I ANIS, C

. J

., and HICKS, LYN N, a nd BASSETT, JJ., concurred.