Mark A. Hooper v. Kristine M. Fernandes.

• Court: Massachusetts Appeals Court
• Decided: November 18, 2024
• Docket: 23-P-1337
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-1337

MARK A. HOOPER

vs.

KRISTINE M. FERNANDES.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On a petition to partition property, a Probate and Family

Court judge divided the proceeds from the sale of a property

formerly owned as tenants in common by the plaintiff, Mark

Hooper, and the defendant, Kristine Fernandes. Hooper appeals

and contends that the judge failed to credit him with payments

he made to cover all the carrying costs of the property after

Fernandes stopped making any contributions. We affirm.

Background. On January 18, 2018, the parties, who never

married, purchased property in Sagamore as tenants in common for

$489,000. They shared equally in the down payment, mortgaged

the property as co-borrowers, and initially shared all expenses

related to the home. Months later, in October 2018, Fernandes prematurely gave birth to their daughter. The daughter and

Fernandes suffered from medical issues following childbirth, and

Fernandes took a six-month maternity leave before returning to

work on a part-time basis. From 2019 through early 2020,

Fernandes contributed to less than half of the mortgage payments

and household expenses. Hooper and Fernandes ended their

relationship in December 2019. In May 2020, Hooper refinanced

the mortgage and continued making all mortgage payments while

Fernandes paid nothing. Fernandes moved out of the property in

December 2020, leaving Hooper as the sole occupant.

In January 2021, Hooper filed a petition to partition in

the Probate and Family Court. Thereafter, the parties agreed to

list the property for sale, Fernandes obtained a referral fee

from a broker, the judge authorized the sale of the property,

and the property sold for $710,000 on May 25, 2023. Counsel for

Fernandes held the net sale proceeds of $269,250.42 in escrow

pending a determination by the judge. In June 2023, the case

proceeded to a trial, and the judge divided the escrowed funds

between Hooper ($145,878.98) and Fernandes ($123,371.44).

Hooper appealed.

Discussion. "[T]he purpose of partition proceedings [under

G. L. c. 241] is to balance the rights and equities of the

parties concerning the property at issue." Gonzalez v. Pierce-

Williams, 68 Mass. App. Ct. 785, 787 (2007). The judge is

2 tasked with making a "just and equitable" division "according to

the respective rights of the parties." Batchelder v. Munroe,

335 Mass. 216, 218 (1957). "The equality is not absolute, but

is an equality according to the respective rights of the parties

in interest." Id. There is a rebuttable presumption that

partitioned property should be divided equally, and "the burden

of showing that a departure from equal division is appropriate

rests with the party who seeks the departure." Canepari v.

Pascale, 78 Mass. App. Ct. 840, 844 (2011). The judge has

"considerable leeway in making an equitable division." Id.

After examining the record, including the judge's rationale, we

discern no error or abuse of discretion.

Hooper argues that the judge's decision arbitrarily

provided a "windfall" to Fernandes who contributed "almost

nothing" to meet the carrying costs of the property between 2019

and the sale in 2023. Far from being arbitrary, the decision

showed that the judge carefully considered whether departure

from the presumption of equal division would be appropriate.

The judge attempted to discern the expectations of the parties

and found that there was no written contract that identified

"the terms of the handling of expenses of the home or any other

details of their co-ownership." In the absence of a written

agreement, the judge credited testimony that showed the parties

shared the expenses of the property up until the birth of their

3 child. The judge found it "unclear what the understanding was

between them once the parties' child was born" in 2018, but

Fernandes cared for the child full-time for six months before

returning to work on a part-time basis. Fernandes'

contributions from late 2019 through early 2020 amounted to

"less than half" of what was necessary to cover property

expenses. Given the lack of clarity in the parties' agreement

and the burden of proof placed upon Hooper, the judge was not

bound to accept Hooper's contention that equal division (or in

this case near-equal division) was inappropriate.

We also note that this is not a case where the judge

neglected to consider Hooper's payments of carrying costs during

a period when Fernandes made no contributions at all. Judges

must consider whether payment of carrying costs (such as

mortgage payments, taxes, and insurance) incurred to preserve

the common estate, may become a "windfall" to the

noncontributing tenant who fails to bear a proportional share of

the costs. Stylianopoulos v. Stylianopoulos, 17 Mass. App. Ct.

64, 69-70 (1983). Here, the judge considered this possibility

and adjusted the division of the sale proceeds to avoid such a

windfall. She added $21,087.53 to Hooper's share of the sale

proceeds to account for his mortgage principal payments from

January 2020 through May 2023. Apart from the carrying costs,

the judge also added $1,420 to Hooper's share to account for

4 one-half of a finder's fee that Fernandes received from the real

estate broker. Thus, the record shows that the judge understood

the range of her discretion and duly exercised it. While Hooper

suggests other formulations could have been better, it "is

plainly not an abuse of discretion" simply because a different

result could have been reached. L.L. v. Commonwealth, 470 Mass.

169, 185 n.27 (2014). See Canepari, 78 Mass. App. Ct. at 846

("judge should begin with the presumption of equal division" and

adjust "to the extent that the party seeking the adjustment

carries his or her burden"); Sanborn v. Johns, 19 Mass. App. Ct.

721, 724 (1985) ("choice of charges to be made and their

allocation varies according to the circumstances").

Decree affirmed.

By the Court (Blake, Walsh & Hodgens, JJ. 1),

Clerk

Entered: November 18, 2024.

1 The panelists are listed in order of seniority.