Loading...
HomeMy WebLinkAbout2004-6472 Civil ROBERT D. BERRY, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 04-6472 CIVIL SHIRLEY J. DUNN, Defendant IN RE: ACTION IN PARTITION BEFORE HESS, J. OPINION AND ORDER This is an equity action in the nature of partition. The hearing in this case was expedited by a comprehensive stipulation entered with respect to most of the facts of the case. We will not reiterate them here but, rather, will touch on the highlights only. The parties were engaged in March of 1999. The defendant, Ms. Dunn, came to live in the plaintiffs home in Stafford, Virginia. From August of 1999 until January of2000, the plaintiff, Mr. Berry, commuted between his home in Stafford, Virginia and a new job in Cumberland County, Pennsylvania. In February of2000 the parties purchased a home at 1111 Tiverton Road, Mechanicsburg, Cumberland County, for $242,000.00. The home was titled to Robert D. Berry and Shirley J. Dunn as joint tenants with the right of survivorship. The parties obtained a joint mortgage in the amount of $205,700.00. The settlement costs and the balance of the purchase price, $43,547.83, were paid by the plaintiff. We are satisfied that the real estate, so purchased, was specifically intended to become the marital residence after the marriage of the parties. While the parties resided together, the mortgage was customarily paid from a joint checking account. NO. 04-6472 CIVIL The parties, in fact, opened several joint accounts with the plaintiff making the bulk of the deposits. The parties also purchased furniture, including an expensive bedroom set. The personal property and bank accounts have been dispersed between the parties. The plaintiff contends that he is entitled to the return of most of the cash accounts by virtue of his contributions. It should be noted that both parties made expenditures from the accounts during the course of the engagement. While the parties lived together, cosmetic upgrades were made to the Mechanicsburg residence. These included the addition of a deck, sunroom and landscaping. The cost of these upgrades, more than $38,000.00, was paid by the plaintiff. It is impossible to determine from the record the degree to which the upgrades impacted the actual value of the home. Following an investigation of his business in November of2002, the plaintiff was suspended from his employment and his income decreased substantially. On August 20, 2003, the plaintiff and defendant placed the Mechanicsburg home on the market due to their financial difficulties. Around that time, Ms. Dunn left the home and Mr. Berry continued to live there. The investigation of the plaintiff and the loss of his employment caused him significant stress which affected his disposition. Apparently, this contributed to the break-up of the parties. They, of course, did not marry. During the time the plaintiff had exclusive possession of the home, he made no rental payments to the defendant. He did, however, pay the mortgage. On June 28,2004, the Mechanicsburg home was sold for $307,000.00. The proceeds of the sale of the home are being held in escrow. The current balance exceeds $108,000.00. One of the issues in this case involves the question of how the escrow balance should be divided between the parties. 2 NO. 04-6472 CIVIL With one exception, the balances of the parties' joint accounts have been paid to Mr. Berry. However, a Commerce Bank savings account with a balance in excess of$37,000.00 was distributed almost equally between the parties. Because the plaintiff contributed ninety percent of this money, he is seeking a return of some of the funds from Ms. Dunn. In resolving this matter, the case of Nicholson v. Johnston, 855 A.2d 97 (Pa.Super. 2004) is instructive. There the parties, in anticipation of marriage, purchased a home. As here, the parties were named joint tenants with the right of survivorship. Johnston paid the down payment and settlement costs. The Superior Court upheld the decision of the Honorable Penny Blackwell who reached conclusions which are apposite to this case. She observed that not only were the parties engaged and intended to be married, but the wording of the deed represented their commitment at the time of the purchase of the residence. Judge Blackwell also concluded that, after the parties separated, the mortgage expenses incurred by one of the parties offset any claims by the other for rental payments. In reviewing Judge Blackwell's decision, the Superior Court reviewed the law with respect to conditional gifts: In Lindh v. Surman, 702 A.2d 560 (Pa. Super. 1997), affirmed 560 Pa. 1, 742 A.2d 643, a panel of this Court discussed the law of conditional gifts set forth in the Restatement of Restitution: Gifts Made in Reliance on a Relation. A person who has conferred a benefit upon another, manifesting that he does not expect compensation therefore, is not entitled to restitution merely because his expectation that an existing relation will continue or that a future relation will come into existence is not realized, unless the conferring of the benefit is conditioned thereon. Comment: (b) Conditional gifts. The gift may be 3 NO. 04-6472 CIVIL conditional upon the continuance or creation of a relation, and if conditional the donor is entitled to its return if the relation terminates or is not entered into. The condition may be stated in specific words or it may be inferred from the circumstances. Likewise, as in the case of engagement and wedding gifts, justice may require the creation of a condition although the donor had no such condition in mind. ( c) Wedding and engagement gifts. Gifts made in the hope that a marriage or contract of marriage will result are not recoverable, in the absence of fraud. Gifts made in anticipation of marriage are not ordinarily expressed to be conditional and, although there is an engagement to marry, if the marriage fails to occur without the fault of the donee, normally the gift cannot be recovered. If, however, the donee obtained the gift fraudulently or if the gift was made for a purpose which could be achieved only by the marriage, a donor who is not himself at fault is entitled to restitution if the marriage does not take place, even if the gift was of money. If there is an engagement to marry and the donee, having received the gift without fraud, later wrongfully breaks the promise of marriage, the donor is entitled to restitution if the gift is an engagement ring, a family heirloom or other similar thing intimately connected with the marriage, but not if the gift is one of money intended to be used by the donee before the marnage. Lindh, 702 A.2d at 561-562 (emphasis added). Additionally, the Reporter's notes recognize: As to gifts other than services or engagement rings the decided cases have generally allowed recovery upon the same basis as in the case of the rings. It is to be noted, however, that in all the cases in which recovery was allowed the money or other things were transferred in contemplation of marriage in the sense that they 4 NO. 04-6472 CIVIL were to be used by the parties after marriage. Restatement of Restitution, S 58 Reporter's Notes. Here, it is clear that based on the testimony presented to her, Judge Blackwell found that Johnston extended the down payment monies in question in contemplation of marriage and for the purchase of a property to be used by the parties after the marriage occurred. Id at 101-102. While we agree with the plaintiff s assertion that he is entitled to the return of his down payment and settlement costs, we cannot agree with his contention that he is entitled to the return of his contributions to the joint bank accounts. Ms. Dunn did not receive any of this money by fraud. Nor do we agree that the creation of joint checking accounts was "for a purpose which could be achieved only by marriage." In fact, expenditures were made from these accounts even prior to marriage. Even if this were not the case, Mr. Berry is not a donor who "is not himself at fault." To the contrary, it was apparently a change in his behavior which caused the parties to drift apart. ORDER AND NOW, this 31st day of January, 2006, after hearing and consideration of the testimony adduced as well as the stipulation of the parties and memoranda of counsel, it is ordered and directed that: 1. The sum of$43,547.83 shall be paid to the plaintiff from the proceeds of the sale of real estate located at 1111 Tiverton Road, Mechanicsburg, Pennsylvania. The remaining balance of said proceeds shall be divided equally between the parties. 5 NO. 04-6472 CIVIL 2. The petition of the plaintiff to be reimbursed for upgrades to the foregoing real estate and for mortgage payments and repairs is DENIED. 3. The complaint for partition of the remaining property of the parties previously distributed, including furniture and bank accounts, is DENIED. BY THE COURT, Kevin A. Hess, J. Barbara Sumple-Sullivan, Esquire F or the Plaintiff Linda A. Clotfelter, Esquire F or the Defendant Court Administrator :rlm 6 ROBERT D. BERRY, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 04-6472 CIVIL SHIRLEY J. DUNN, Defendant IN RE: ACTION IN PARTITION BEFORE HESS, J. ORDER AND NOW, this 31st day of January, 2006, after hearing and consideration of the testimony adduced as well as the stipulation of the parties and memoranda of counsel, it is ordered and directed that: 1. The sum of$43,547.83 shall be paid to the plaintiff from the proceeds of the sale of real estate located at 1111 Tiverton Road, Mechanicsburg, Pennsylvania. The remaining balance of said proceeds shall be divided equally between the parties. 2. The petition of the plaintiff to be reimbursed for upgrades to the foregoing real estate and for mortgage payments and repairs is DENIED. 3. The complaint for partition of the remaining property of the parties previously distributed, including furniture and bank accounts, is DENIED. BY THE COURT, Kevin A. Hess, J. Barbara Sumple-Sullivan, Esquire F or the Plaintiff Linda A. Clotfelter, Esquire F or the Defendant Court Administrator :rlm