Whitcomb v. Smith

33 Mass. L. Rptr. 172
CourtMassachusetts Superior Court
DecidedAugust 8, 2014
DocketNo. PLCV20090599B
StatusPublished

This text of 33 Mass. L. Rptr. 172 (Whitcomb v. Smith) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Whitcomb v. Smith, 33 Mass. L. Rptr. 172 (Mass. Ct. App. 2014).

Opinion

Davis, Brian A., J.

Introduction

This is an unhappy dispute between family members concerning the disposition of the family homestead. The property at issue is located at 236 Union Street, Hanover, Plymouth County, Massachusetts (the “Property”). Plaintiff Kathleen Whitcomb (“Mrs. Whitcomb”) is the daughter of Defendant Mary L. Smith (“Mrs. Smith”).1 Plaintiff Scott Whitcomb (“Mr. Whitcomb”) is Mrs. Whitcomb’s husband. Mrs. Whitcomb grew up on the Property with her parents, the Smiths.

By means of this action, the Whitcombs seek to enforce a written agreement whereby the Whitcombs agreed to move onto the Property with the Smiths, to expand and help maintain it, and to provide assistance to the Smiths in their senior years, in return for the Smiths’ agreement eventually to transfer the Property to the Whitcombs. The parties actually lived together on the Property for approximately eight and a half years beginning in 2000, but their arrangement ended in a hail of recriminations and lawyer letters in or about early 2009. The Smiths never did transfer the Property to the Whitcombs, and Mrs. Smith still refuses to do so on the ground that the Whitcombs purportedly failed to uphold their end of the parties’ bargain. Mrs. Smith also has asserted a counterclaim against the Whitcombs for damage that they allegedly caused to the Property while they resided there, and for various unpaid costs and expenses that Mrs. Smith claims she still is owed.

All efforts to resolve this family dispute short of a full-blown trial were unsuccessful, with the result that the Court tried the case, juiy-waived, for three days between February 4 and February 7, 2014. The parties subsequently made various post-trial submissions in advance of closing arguments on March 13, 2014. After closing arguments, the Court made certain preliminary findings and rulings from the bench and invited the parties to submit an agreed-upon form of judgment. The parties were unable to agree on a form of judgment, however, which precipitated a further round of post-trial submissions in April and May of this year. Having now received and reviewed all of the parties’ submissions, the following constitutes the Court’s formal findings of fact, rulings of law and order for judgment.

Findings of Fact2

As previously noted, the parties to this action are related to one another. Plaintiff Kathleen Whitcomb is the daughter of defendant Mary Smith, and plaintiff Scott Whitcomb is her husband. The Property at issue was purchased by Mrs. Smith and her now-deceased husband, William Smith, many years ago, and Mrs. Whitcomb was raised there as a child. After she married, Mrs. Whitcomb moved to nearby Rockland, Massachusetts and lived there with Mr. Whitcomb and their children for thirteen years while the Smiths continued to reside on the Property.

In the mid-1990s, Mr. Smith’s health started to decline. Concerns about Mr. Smith’s health and his long-term care apparently led the Smiths, in early 1999, to suggest to Mr. and Mrs. Whitcomb that they move onto the Property and live there with the Smiths.3 More specifically, the Smiths proposed building anew “in-law” addition to their existing house on the Property where they (i.e., the Smiths) would live, thereby freeing up the main house for the Whitcombs [173]*173and their children. The Whitcombs, in turn, would pay for the construction of the addition (including making the monthly payments on any mortgage loan obtained by the Smiths to build the addition), pay a portion of the real estate taxes, utilities, maintenance costs and other expenses associated with the Properly, and eventually receive title to the Property from the Smiths.

The Whitcombs agreed to the Smiths’ proposal. In order to memorialize their joint understanding, Mr. Smith prepared a handwritten, two-page “Agreement between William H. and Mary L. Smith and Scott H. and Kathleen A. Whitcomb relative to [the Property]” (the “Property Agreement” or, simply, the “Agreement”). Trial Exhibit (“Trial Ex.’j 1. The original Property Agreement was circulated among, but never signed by, the parties.4 The first paragraph of the Property Agreement recites the Smiths’ “strong desire to keep the [Property] in the family due to its excellent location . . .” Id., p. 1. The second paragraph of the Agreement sets forth the terms of the parties’ understanding, which are described as follows:

A. An addition will be built onto the existing structure at 236 Union St. per attached exhibit A.
B. William H. Smith and Mary L. Smith will occupy this addition only and Scott and Kathleen Whitcomb and children will occupy the remainder of the house only.
C. In so far as possible, Scott and Kathleen Whitcomb will pay for the cost of this addition in toto including any costs associated with additions to the property as required by state or municipalities because of the addition.
D. Transfer of the entire property from William H. and Maty L. Smith to Scott and Kathleen Whitcomb will be made by legal means that will minimize the tax exposure to Scott and Kathleen Whitcomb.
E. Regardless of circumstances, the rights of William H. and Maty L. Smith to abide in the addition as their home will not be denied or restricted until either:
(i) Both are deceased [or]
(ii) Each decides to leave on their own volition without coercion of any kind from any party.

Id. (emphasis in original).

Page two of the Property Agreement contains a summary of the “Approximate Financial Details” of the parties’ arrangement, including estimates for the cost of the addition ($150,000) and the Smiths’ expected resulting mortgage balance ($120,000), and a provision titled “Gift Tax Exposure,” which states, in relevant part, that the “estimated gift amount from William H. and Mary L. Smith to Scott H. and Kathleen L. Whitcomb is . . . $273,000,” and that a “method of transfer of this asset amount that will minimize the net tax exposure to Scott and Kathleen Whitcomb will be sought.” Trial Ex. 1, p. 2.

Significantly, the Property Agreement does not specify exactly when the Smiths would “[transfer . . . the entire properly to Scott and Kathleen Whitcomb,” but the Court finds, based on all of the credible evidence, that the parties understood a transfer would be made, if not immediately, then certainly within a reasonable time after the Whitcombs moved onto the Property. See, e.g., Mishara Constr. Co. v. Transit-Mixed Concrete Corp., 365 Mass. 122, 125 (1974) (Where “no time for performance is set out in the contract, . . . the court by long established rule will imply a reasonable time”). This finding is consistent with, and further supported by, Mr. Smith’s contemporaneous notes concerning the transaction, which state, in part, “Ownership—do they [i.e., the Whitcombs] understand gradual ownership?” Trial Ex. 60.

After the parties entered into the Property Agreement, implementation of the terms of that agreement proceeded largely on schedule. In May 1999, an appraiser estimated the fair market value of the Property to be $270,000. Trial Ex. 2.

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Cite This Page — Counsel Stack

Bluebook (online)
33 Mass. L. Rptr. 172, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whitcomb-v-smith-masssuperct-2014.