Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal. 

ENTRY ORDER

SUPREME COURT DOCKET NO. 2014-377

MAY TERM, 2015

Tammy Schey } APPEALED FROM:

}

} Superior Court, Chittenden Unit,

 v. } Civil Division

}

}

Daniel Fuller } DOCKET NO. 512-5-13 Cncv

Trial Judge: Michael S. Kupersmith

In the above-entitled cause, the Clerk will enter:

In this partition action, plaintiff appeals a decision of the superior court, civil division, 

apportioning the equity in the parties’ house. We reverse and remand for a new accounting 

award consistent with our decision below.

The following findings are undisputed. Plaintiff and defendant were domestic partners 

for approximately twenty-three years, from 1989 until 2012. In 2000, they purchased a house 

together as joint tenants with right of survivorship. Both of their names are on the title to the 

house, and they intended to share ownership and property expenses equally. Plaintiff paid the 

entire $47,155 down payment, and defendant agreed to reimburse her for half of that amount. 

They obtained a mortgage loan for $113,900, which was refinanced in 2001 for the same amount 

and in 2003 for $113,500. They intended to share their mortgage obligations equally, but in fact 

plaintiff paid all of the mortgage principal and interest between 2000 and 2013, which amounted 

to $138,905. She also paid the entire $41,835 in property taxes, $7994 in homeowner’s 

insurance, and $49,000 in utilities over that time period. At the time of the partition hearing, the 

house was assessed at $236,200, which the court accepted as the fair market value of the house. 

The house had an outstanding mortgage of $42,302, leaving $193,898 in equity. 

The parties renovated, remodeled, and repaired the house between 2000 and 2012. 

Plaintiff paid the entire $42,560 in out-of-pocket expenses for the home projects. Both parties 

contributed labor to the projects. Defendant contributed more labor than plaintiff, but plaintiff 

frequently worked alongside defendant or paid another worker to assist him. Plaintiff paid for 

many of defendant’s non-house-related expenses over the years, including medical bills, 

groceries, household items, truck insurance, and cell phones. During the twelve-year period, 

defendant wrote checks to plaintiff totaling $11,437, but plaintiff could not recall whether those 

checks were intended to reimburse her for house-related or non-house-related expenses, and

defendant did not present any evidence on this issue. 

The court awarded plaintiff exclusive title to the house based on this evidence and the 

parties’ recognition that plaintiff had made nearly all of the financial contributions for the 

purchase and maintenance of the property during the twelve-year period. The focus of the 
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parties’ dispute was on arriving at a proper accounting. Plaintiff asked the court to find that 

defendant’s equitable interest in the house was nominal if not a negative, while defendant 

requested a judgment that recognized his contributions to the house over the years. Based on the 

above evidence, the court found that during the twelve-year period plaintiff contributed a total of 

$328,389 and defendant a total of $53,997. After adding those sums, the court calculated that 

plaintiff had made eighty-six percent, and defendant fourteen percent, of the total house-related 

contributions. Applying those percentages to the house’s equity, the court concluded that 

plaintiff was entitled to $166,520, and defendant $27,378, of the equity in the house. 

Accordingly, the court awarded the house to plaintiff and required her to pay defendant $27,378.

On appeal, plaintiff argues that the trial court erred by applying a novel partition 

accounting methodology and by making certain findings that were unsupported by the evidence. 

Plaintiff first argues that the court erred by not dividing the house’s equity in half and then 

offsetting against defendant’s share of the equity all of her house-related contributions in excess 

of the agreed-upon fifty-percent division. According to plaintiff, doing so here would have 

resulted in a nominal or negative award for defendant, depending on whether we uphold her 

challenges to the trial court’s calculations as to the parties’ respective contributions. Plaintiff 

argues that this Court’s precedents required such an analysis absent compelling circumstances, 

which did not exist here. She also contends that the methodology employed by the court resulted 

in an inequitable accounting.

We disagree. “We review the trial court’s assessment of equitable remedies, like 

partition, for abuse of discretion, and will uphold the trial court’s judgment unless the trial court 

has withheld its discretion entirely or exercised it for clearly untenable reasons or to a clearly 

untenable extent.” Currie v. Jane, 2014 VT 106, ¶ 25, 109 A.3d 876 (quotation omitted). In 

making a partition accounting, the court has broad discretion and is not restricted to one 

approach to achieve an equitable result. Id. ¶ 29. Generally, the partitioning court should divide 

the property in half and then first “determine the contributions of each party towards the actual 

expenses of the house.” Whippie v. O’Connor, 2010 VT 32, ¶ 15, 187 Vt. 523. That is precisely 

what the court did here. “[W]hen one cotenant pays more than his or her share of propertyrelated expenses, she or he is entitled to proportionate reimbursement, or credit, from the other 

tenants to reflect the proportionate burden of co-ownership.” Id. ¶ 16 (emphasis added). In this 

case, the court chose to apply the proportionate share of each party’s contributions to the current 

equity in the house to arrive at an equitable accounting. This methodology is neither precluded 

by our case law nor inequitable under the circumstances of this case. Although plaintiff made 

the vast amount of the property-related contributions, defendant also contributed to the value of 

the property. Thus, the court did not abuse its broad discretion by awarding him a relatively 

small share of the house’s equity proportionate to his limited contributions.

Next, plaintiff challenges certain findings related to the trial court’s assessment of the 

respective contributions of the parties. First, plaintiff contends that no credible evidence 

supported the court’s findings that defendant worked 1064 hours on home projects over the 

twelve-year period and that his work was worth $40 per hour. These findings were based on 

defendant’s admitted exhibit in which he detailed the various home projects he did, indicated the 

number of hours that he worked on each one, and then multiplied those hours by $40 to arrive at 

a final figure. Plaintiff lived with defendant during the years in question and yet she does not 

challenge any of the specifics of his claimed projects, arguing only that defendant’s exhibit was 

insufficient to support the court’s finding and that she hired other workers for a lesser hourly 

rate. It is within the province of the trial court to determine the credibility of witnesses and 
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weigh the evidence; thus, plaintiff has failed to demonstrate that the challenged findings are 

clearly erroneous. Id. ¶ 12 (stating that trial court’s findings are upheld as long as they are 

supported by credible evidence and that we defer to trial court’s assessment of credibility and 

weighing of evidence).

Plaintiff also argues that the trial court should have credited her for her labor 

contributions, given its findings that she contributed labor to plaintiff’s home improvement 

projects and that she frequently worked alongside him or paid a worker to do so. The problem 

with this argument is that plaintiff does not cite to any evidence she submitted quantifying her 

labor on which the trial court could have relied in making its calculations. Accordingly, we find 

no abuse of discretion in the court’s decision not to credit plaintiff for any labor contributions.

Finally, plaintiff argues that the trial court’s calculation of defendant’s financial 

contributions is inconsistent with its findings. The court credited defendant for all of the $11,437 

in checks he gave plaintiff between 2000 and 2012, even though it found that plaintiff paid for 

many of defendant’s non-household expenses during those years and that plaintiff could not 

recall whether the checks were for house-related or non-house-related expenses. We agree that 

given the state of the evidence, the court’s own findings, and defendant’s failure to prove that the 

checks were for house-related expenses, the trial court should not have treated those checks as 

house-related contributions.

Reversed and remanded for the superior court to deduct $11,437 from defendant’s houserelated contributions, to make a new accounting award based on that change, and to enter a new 

judgment.

 

BY THE COURT:

_______________________________________

Paul L. Reiber, Chief Justice

_______________________________________

John A. Dooley, Associate Justice

_______________________________________

Marilyn S. Skoglund, Associate Justice