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James F. Silva, Jr v. Ann E. Fitzpatrick and Joseph Fitzpatrick

August 30, 2011

JAMES F. SILVA, JR., PLAINTIFF-APPELLANT,
v.
ANN E. FITZPATRICK AND JOSEPH FITZPATRICK, HUSBAND AND WIFE, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Chancery Division, Atlantic County, Docket No. C-92-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Telephonically argued January 13, 2011

Before Judges Carchman, Graves and Messano.

This partition action involves a dispute between plaintiff James F. Silva, Jr., and his sister, defendant Ann E. Fitzpatrick.*fn1 The property in question is a single-family home located in Longport, New Jersey, with a stipulated value of $900,000. Plaintiff appeals from a final judgment entered on October 14, 2009, which permitted either party to purchase the property in accordance with "an auction process" set forth in the judgment without any credits or adjustments to either party. We affirm.

By way of background, the property was originally purchased in September 1971 by Madeline and James Silva, the parents of plaintiff and defendant, who are two of four siblings. In 1989, James Silva executed a revocable deed of trust (the Trust), which provided for the maintenance and support of his wife, Madeline, if he predeceased her. Upon the death of both parents, the balance remaining in the Trust was to be equally distributed to their children.

When James Silva died on April 12, 1991, the property passed to his wife, Madeline. On March 19, 1993, Madeline, as executrix of her husband's estate, conveyed the property to the Trust. Madeline Silva died on January 24, 1996. On December 30, 1997, after the two non-party siblings were each paid $50,000 for their interest in the property, it was transferred from the Trust to plaintiff and defendant as tenants in common.

Consequently, the parties are equal owners, and they have both used the property in various ways. Plaintiff testified he occupied the property "during the winter months" and "had an office in one of the bedrooms" for his construction business. On the other hand, defendant and her family used the property primarily as a summer home from "mid-July to mid-September."

Plaintiff stated in his complaint that he "paid in excess of $200,000.00" to upgrade "all areas of the original three bedroom bungalow" and that the improvements included a "new heating system, air conditioning, roof, windows, bathroom, carpeting, furnishings and appliances." Plaintiff also stated that it was not practicable to partition the property in kind, and he requested that the property be sold and that he be reimbursed for his expenditures.

In her answer and counterclaim, defendant agreed the property should be sold, but she denied plaintiff was entitled to a greater portion of the proceeds from the sale. According to defendant, "[f]rom 1997 to 2007, [p]laintiff had virtually sole and exclusive possession of the premises," and none of the "alleged improvements to the property were approved by [her]." Defendant also sought to be reimbursed for the expenses she paid to maintain the property after plaintiff "vacated the premises [on] August 1, 2007."

The trial judge heard testimony from three witnesses: plaintiff, defendant, and Kathleen Wohlman, a real estate appraiser. Wohlman testified the property was "about a block and a half from the beach," and that its appraised value was $1,100,000 on November 1, 2007, and $925,000 as of July 20, 2009. Wohlman also confirmed that various improvements had been made to the home. However, when asked if she had an opinion as to "the value of the improvements or renovations," she testified that she "did not prepare a report with that in mind," and it would be difficult to determine "exactly what value was contributed by the renovations."

In addition, on cross-examination, Wohlman testified as follows:

Q. So if Mr. Silva says he put a family room onto the property you would be in no position to say how much that addition would have ...


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