Lima v. Lima

570 N.E.2d 158, 30 Mass. App. Ct. 479, 1991 Mass. App. LEXIS 255
CourtMassachusetts Appeals Court
DecidedApril 24, 1991
Docket89-P-46
StatusPublished
Cited by9 cases

This text of 570 N.E.2d 158 (Lima v. Lima) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lima v. Lima, 570 N.E.2d 158, 30 Mass. App. Ct. 479, 1991 Mass. App. LEXIS 255 (Mass. Ct. App. 1991).

Opinions

Armstrong, J.

On September 23, 1976, while the parties’ divorce action was pending, the plaintiff (wife) voluntarily transferred to the defendant (husband) her interest in a commercial property so that he might sell the business to another. It was understood at the time that the husband, in return, would transfer his interest in the parties’ beachfront home in Mattapoisett to the wife. The divorce judgment was entered December 20, 1978, making provision for custody and child support but not for equitable division of the parties’ assets. Under date of May 17, 1979, the husband executed a deed of his interest in the beachfront residence to the wife, reserving to himself an easement of passage to the beach for recreational activities, including a right to park in the driveway. The deed was recorded June 1, 1979, the wife’s then attorney first having crossed out the language reserving the easement without informing the husband or his counsel.

The parties’ residential property consisted of four contiguous parcels. When the wife’s attorney prepared the 1979 deed (the husband had interlineated the easement language before executing it), he had by inadvertence failed to include three of the four parcels. The error was discovered in 1983, and the wife, by then having retained new counsel, forwarded to the husband or his attorney (also, new), for execution, a deed conveying the other three parcels. (It was then that the husband learned of the 1979 deletion.) The husband’s attorney prepared a substitute deed, transferring the three parcels to the wife but reserving to the husband a right of way to the beach, for travel by vehicle or by foot, including the right to park vehicles and trailers. The husband executed the substitute deed on November 23, 1984, and forwarded it to the wife.

The wife then filed the present complaint, seeking specific performance of the parties’ 1976 unwritten agreement. The husband’s answer raised the Statute of Frauds, the statute of limitations, the clean hands doctrine, and the existence of an adequate remedy at law; and it disputed the terms of the unwritten agreement, the husband asserting that the beach [481]*481easement had been agreed from the outset. By later counterclaim the husband sought a declaration that the recorded deeds1 were null and void and an order that the wife execute a deed (which, on the husband’s theory of the case, would be confirmatory only) conveying the four parcels comprising the residential property to the husband and wife as tenants in common.

The testimony concerning the oral land swap understanding was to the following effect. The wife testified that the parties agreed in 1976 that she would convey her interest in the commercial property to the husband, and he would convey his interest in the residential property to her. The commercial property deed was prepared after a meeting in her former attorney’s office, attended by the husband and his then attorney. No mention was made of the husband’s reserving an easement. This was confirmed by her attorney. A family friend who was present at discussions between the parties before the 1976 conveyance heard no mention of beach rights. The wife was asked if the subject of beach rights came up at a 1975 meeting between her and her husband at a Chinese restaurant, and, over the husband’s objection, she was allowed to answer negatively. She claimed that no mention was made of beach rights until 1979. The husband’s version of the meeting at the office of the wife’s former attorney — a meeting he described as acrimonious — was as follows: It was agreed at that meeting that the exchange would take place and that the attorneys would draw up the deeds, which the parties signed in blank. There was no discussion of the content of the deeds, but the contents had been discussed at other meetings before the divorce. When the blank deeds were signed, it was the husband’s “intention and . . . understanding that [beach rights] would be [482]*482included in the language the attorneys placed on the deeds.” The judge sustained the wife’s objection to the question whether the husband had discussed beach rights with the wife at the Chinese restaurant2; the husband’s counsel made an offer of proof to the effect that the husband would testify that they had discussed a division of assets and that the husband’s position was that, “in essence, if he conveyed or gave the house to her, he would have the right to use the beach with Ethan [the parties’ son], would be able to use the garage for his workshop at any time. That’s the offer of proof.” The judge accepted the husband’s version, finding that the husband “had prior to March, 1977,3 asked for beach rights over the marital property” and that “[i]t was always [the husband’s] desire to reserve to himself rights to the . . . beach . . . .” It is worth noting here that the evidence probably did not warrant, and the judge seems not to have made, a finding that the wife ever agreed to the husband’s reservation of a beach easement.

The judgment entered after trial took the form of an order that the husband execute replacement deeds, conveying the residential properties, and reserving to himself, for his lifetime only, a personal right of passage over the residential lot to the beach and a right to use the beach in common with the wife and any others who might be so entitled (that is to say, an easement substantially narrower than that which the husband reserved to himself in the 1979 and 1984 deeds).

The judge’s ultimate findings leave somewhat unclear the theory on which he based the judgment. After finding that [483]*483the wife’s alterations of the deeds “constituted fraud and deceit,” the judge found that the husband and the wife had reached agreement on the mutual conveyances of their interests in the commercial and residential properties; that the “conveyances . . . were in substantial conformity with their personal agreements”; that a declaration voiding the residential property conveyances would be unjust to the wife, who had acquiesced in the deed alterations on bad advice from her counsel; and that the husband should have equitable relief to restore to him the easement he had reserved in the deeds.4

These findings, read together with the judgment, are, we think, susceptible of the interpretation that the parties had agreed on the main point, prior to the wife’s 1976 conveyance of the commercial property, that the wife should have [484]*484in return the residence, that the parties had discussed the husband’s desire to retain beach rights but may not have resolved the issue, that any failure to resolve it was not regarded by the parties in 1976 as so substantial a detail as to preclude going ahead with the wife’s conveyance of the commercial property, and that the husband, when he included the easement language in the deeds executed after the divorce, may have enlarged its scope beyond what was reasonably contemplated in the 1975 and 1976 discussions. (This interpretation, which is reflective of the parties’ testimony, would explain the judge’s shrinking the scope of the easement to one more in keeping with the husband’s offer of proof, which made no mention of vehicular access, parking rights, or hereditary rights.)

Both parties have appealed. The wife argues that she proved her entitlement to a conveyance of the residential properties free of the husband’s desired easement.

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Cite This Page — Counsel Stack

Bluebook (online)
570 N.E.2d 158, 30 Mass. App. Ct. 479, 1991 Mass. App. LEXIS 255, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lima-v-lima-massappct-1991.