Dellamattera v. Dellamattera

• Court: Superior Court of Maine
• Decided: October 7, 2008
• Docket: PENcv-08-100
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT PENOBSCOT, SS. CIVIL ACTION DOCKET NO CV-08-100 vJ V:- _Vr ,.,' ' }', :

LAWRENCE DELLAMATTERA r'- _ ..- --- "..... JOANNE DELLAMATTERA, F1 ;~~'.' {' '.,' ] l :.-,. .

Plaintiff, / ' I" l i 1

v. ORDER T I' JULIE DELLAMATTERA, 0,,: 0 '7 2DDB

Defendant. PENOBSCOT COUNTY f ---~--'"-~----

Hearing was held on the defendant's motion to dissolve attachment on October

7, 2008. The plaintiffs were represented by counsel, David Walker, Esq., while the

defendant was present and represented by counsel, Joseph Baiungo, Esq.

From representations made at the hearing, the court concludes that in September

of 2007, defendant and her husband entered into a land installment sales contract with a

third party to sell their residential real estate. Later, defendant and her husband

divorced and the plaintiffs, defendant's former in-laws, brought this suit to collect on a

promissory note signed by the defendant and her husband that became due upon the

sale of the plaintiff's residence in Belfast, Maine. That residence is not yet sold but only

subject to the aforementioned contract. In 2008, however, the defendant sold to the

person who is buying the residence an adjoining lot of raw land that had formerly been

a part of the residential parcel. Because the court had Signed an attachment prior to the

sale, the parties agreed that the proceeds up to the amount of the attachment, $19,600

would be held in escrow by plaintiff's firm. The total proceeds had been approximately

$20,000.

Defendant claims that the attachment should be dissolved because of the

homestead exemption found at 14 M.R.S.A. § 4422 indicating that $35,000 in value of a debtor's residence is exempt from attachment. She also cites In Re MacLeod, Blatcy. D.

Me. 2003, 295 B.R. 1 for the proposition that the exemption also applies to property

owned by the debtor that is contiguous to the residence. In MacLeod, the issue was

whether business real estate that comprised the same parcel of land upon which the

debtor's mobile home was located was entitled to the exemption. The court decided that

it was not, but indicated that if the contiguous land were used in a manner appurtenant

to the residential use it could be subject to the exemption. There was no indication that

the case involved land described in separate deeds.

This court finds that because the land sold by the defendant was not residential,

it is not subject to the exemption. Not only did the parcel not contain a residence, but its

relationship with the adjoining residential parcel was severed because the occupant of

the residential parcel, the person buying it under the installment contract, was not the

owner of the parcel of raw land that generated the disputed proceeds.

Motion to dissolve denied.

The clerk is directed to incorporate this Order into the docket by r

Dated: October 7, 2008 LLIAM ANDERSON JUSTICE, SUPERIOR COURT 10/08/2008 MAINE JUDICIAL INFORMATION SYSTEM ksml th PENOBSCOT COUNTY SUPERIOR COURT mjtvi001 PAGE P - PARTY VIEW LAWRENCE J DELLAMATTERA ET AL VS JULIE DELLAMATTERA UTN:AOCSsr -2008-0040723 CASE #:BANSC-CV-2008-00100

SEQ TITLE NAME DOB ATTY 001 PL LAWRENCE J DELLAMATTERA by F.D. Walker, Esq. I I T 003 PL JOANNE DELLAMATTERA """ II T 002 DEF JULIE DELLAMATTERA by Joseph Baiungo, Es~ I T