On appeal from Superior Court, Chancery Division, Union County.
Petrella, Dreier and Baime. The opinion of the court was delivered by Petrella, P.J.A.D.
[224 NJSuper Page 604] Plaintiff Sharon Baker appeals from the May 28, 1987 dismissal by the Chancery Division of her partition action and the determination that she had no rights in property which she purchased as a tenant in common with defendant Frank Drabik. Baker argues that she has a right to partition and that the trial judge incorrectly applied the law; that the concept of owelty
was not relevant to the issue before the trial court; that the pretrial order barred defendant from affirmative relief absent proof of fraud, and in the absence of fraud the trial judge could not divest plaintiff of her interest in the property. We reverse.
Some time prior to the April 1985 filing of the lawsuit Drabik was contacted by Baker's attorney who requested that he either sell the jointly purchased house or pay Baker for half of it. That request was rejected. On April 17, 1985 Baker instituted a partition action seeking a determination that she was seized of a one-half undivided interest in the land, and alternatively seeking a sale of the land. She also requested an accounting of all sums of money which she expended and of the value of Drabik's use and occupancy of the lands and building in Drabik's possession.
Drabik counterclaimed on June 27, 1985 on the grounds that property was purchased on her representation that they would be married and her promise that the premises would be used as a marital home. He alleged that Baker knew these representations were false. He also alleged that in reliance on Baker's representations he had the deed made out to them both as tenants in common. He thus sought to have the conveyance to Baker and himself as tenants in common set aside and a determination that he was the rightful owner. Drabik's claim of alleged fraudulent promise to marry was abandoned prior to trial. Instead he asserted that Baker fraudulently represented "that she would assist in the paying of the contemplated mortgage, taxes, utilities and other expenses."
Baker and Drabik purchased a house at 517A Mountain Avenue, Springfield, in 1977 when they were engaged to be married at some unspecified future date. Both parties signed the contract and the mortgage agreement. At the time the contract was signed, they paid a $6,400 deposit. At the closing on September 23, 1987 a mortgage was given by Crestmont Savings & Loan Association in the amount of $51,000. The purchasers also paid $8,046.50 at the closing which represented
the $6,400 balance of the purchase price, adjustments and closing costs. They received a deed naming them as tenants in common. After they had lived together in the house for about two years (September 23, 1977 to December 31, 1979), Baker moved out because of differences. A reconciliation occurred, and she moved back around June 30, 1982 and resumed making the contributions she had previously made. The reconciliation lasted a little more than a year, and Baker moved out again around September 1, 1983.
The trial judge found credible Baker's testimony that she contributed approximately $4,000 in cash towards the purchase, $2,000 of which was from an account she received from a relative, and an additional $1,500 to $2,000 that she obtained from her Ciba-Geigy Credit Union. He made no findings as to whose funds were used to pay the amounts due at the closing.
Although Drabik had testified that he paid the $6,400 deposit from his savings account and a cash reserve account, the judge found that he only contributed about $2,400. Drabik said that he paid the additional balance and closing costs, but that on the final closing they had insufficient funds and Baker had to borrow a "couple thousand" to pay the attorney's fees.*fn1 He did not think that Baker's contribution amounted to $4,000, although he acknowledged that she put some extras into the house like special kitchen cabinets.
The parties had agreed that Drabik, whose salary was larger, would pay the mortgage, which included real estate taxes. Baker was to contribute what she could towards utilities, taxes and household expenses. Baker was unable to provide documentation showing the payments that she made on account of utilities and the like. She testified that the ...