Raymond v. Crites

STATE OF MAINE SUPERIOR COURT
ANDROSCOGGIN, ss. CIVIL ACTION
DOCKET NO. RE-22-20

JOHN RAYMOND,

Plaintiff

V.
ORDER ON MOTION FOR
SANDRA CRITES, f/k/a SUMMARY JUDGMENT
SANDRA RAYMOND

Defendant

The matters before the comi is Defendant Sandra Crites ("Crites") Motion for Summary

Judgment on Plaintiff John Raymond's ("Raymond") Petition For Partition asserting the right to

partition has been waived. Raymond opposes the motion. For the following reasons, the motion

will be denied.

Background

Raymond and Crites were previously married and owners of property located at 18

Florence Lane, in Poland, Maine (the "property"). (D.S.M.F. 16, 8). On December 6, 2017, in

Lewiston District Court a Divorce Judgment was entered pertaining to their marriage. (D.S.M.F.

19). The Divorce Judgment indicated, inter alia, the following: (a) Defendant and Plaintiff

would remain in the Property post-divorce; (b) Defendant and Plaintiff would have the right to

exclusive possession of the Prope1iy until the Prope1iy was sold; (c) the Property shall be sold

when "both parties agree". (D.S.M.F. 1 11).

In August, 2021, Crites filed in the Lewiston District Court a motion for relief from

judgment pursuant to M.R.Civ. P. 60(b)(6). (P.S.A.M.F. 12). In her motion for relief Crites

requested that the divorce judgment be set aside and that she be granted possession of the

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property, arguing the divorce judgment did not achieve actual division of the marital property.

((P.S.A.M.F. 'if 2, Ex. 2, Motion for Relief From Judgment). Raymond did not object to a

partition of the real estate, and the main issue at the hearing on Crite' s motion for relief from

judgment was the distribution of sale proceeds. (P.S.A.M.F. ,r 3, see Ex. 's 3 and 4). The District

Court denied the motion for relief, stating "Rule 60(b) is not intended to provide parties an

alternate path to litigate an equitable partition action." (P.S.A.M.F. ,r 4, Ex. 5, Order, at page 3).

Crites does not want to sell the property and wants to continue to reside there. (D.S.M.F.

'if 17, 18 and 20). Raymond desires to sell the property, and maintains he did not intend to waive

his right to seek partition. (P .S.A.M. F. ,r 1, Ex.I)

Standard

Summary judgment is granted to a moving party where "there is no genuine issue as to

any material fact" and the moving party "is entitled to judgment as a matter of law." M.R. Civ. P.

56(c). "A material fact is one that can affect the outcome of the case, and there is a genuine issue

when there is sufficient evidence for a fact-finder to choose between competing versions of the

fact." Lougee Conservancy v. City Mortgage, Inc., 2012 ME 103, 'if 11, 48 A.3d 774 (quotation

omitted).

"Facts contained in a supporting or opposing statement of material facts, if supported by

record citations as required by this rnle, shall be deemed admitted unless properly controverted."

M.R. Civ. P. 56(h)(4). In order to controvert an opposing party's factual statement, a party must

"support each denial or qualification by a record citation." M.R. Civ. P. 56(h)(2). "Assertion of

material facts must be supported by record references to evidence that is of a quality that would

be admissible at trial." HSBC Mortg. Servs. v. Murphy, 2011 ME 59, ,r 9, 19 A.3d 815.

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Discussion

In his complaint, Raymond invokes the equitable and legal jurisdiction of the court.

There are two types of partition-statutory and equitable.

Title 14, M.R.S. §6501 provides "Persons seized or having right of entry into real estate

in fee simple or for life, as tenants in common or joint tenants, may be compelled to divide the

same by civil action for partition." Statutory partition may be carried out only by physical

division of the jointly owned real estate or perhaps ... by time-sharing of its use. Libby v.

Lorraine, 430 A.2d 37, 39 (Me. 1981) emphasis added. And statutory partition is limited to

persons seized or having a right of ent1y as tenants in common or joint tenants. 14 M.R.S.§6501,

6502.

Partition is also available to joint owners of real estate through the equity jurisdiction of

the court. Libby v. Lorraine, 430 A.2d 37, 39. Equitable partition is more flexible than "partition

by petition" and is not limited to physical division and may be carried out by sale. Id Similar to

statutory partition, equitable partition is limited to cases involving part owners of real (see Boyer

v. Boyer, 1999 ME 128,113) or between those actually seised of the premises.((Hoadley v.

Wheelwright, 131 Me. 435, 437 (1933)- "a tenant in common may maintain his petition for

partition, ifhe has right of entry, though not actually seised" quoting Baylies v. Bussey, 5 Me.

153); see also Pierce v. Rollins, 83 Me. 172 (1891 )-" ... a partition can not be decreed ... unless

the complainants can, by some proceeding at law, establish their legal title").

Crite's however argues she and Raymond both waived their right to partition. The Law

Court has recognized that a co-tenant may voluntarily limit or waive his or her right to partition.

Pew v. Sayler, 2015 ME 120, ,i 28, citing Mathews v. Mathews, 2008 ME 66, ,i,i 2, 5. Consistent

with Matthews, the Court has referenced the Restatement (Second) of Property which states "A

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restraint on the power of a co-tenant to compel partition, created to last for a reasonable time

only, is valid. Pew v. Saylor, ,i 29, citing Restatement (second) ofProp.: Donative Transfers§

4.5.

Despite Crites' argument to the contrary, Matthews is distinguishable. In Mathews the

parties specifically agreed Marylou would have possession of the house for as long as she

desired. Matthews, ,i 5. In this case, the divorce judgment failed to indicate what would happen if

the patties could not agree to sell. The Real Estate Schedule A to the Divorce Judgment indicates

that until the real estate is sold both Plaintiff and Defendant have the right to exclusive

possession. That itself is contradictory. The schedule further states the real estate shall be sold

when both patties agree. This is far different than the situation described in Matthews where one

party was granted exclusive possession and she alone could decide how long she wished to

remain in the property. In contrast, in this case the parties are left in an untenable position. Were

the divorce judgment to be interpreted as Crites argues, and interpreted as a waiver of partition, it

would potentially leave the parties never being able to sell the property or resolve their affairs.

That flies against the requirement of the Restatement (Second) of Property that waivers last for a

reasonable time only. But more imp01tantly, it underscores the unce1tainty to what the parties

were to do if they could not agree. It is unimaginable that through a divorce in which parties'

marital assets are to be set apatt and their affairs dissolved they could remain permanently bound

as co-tenants of real estate due to an inability to agree to sell. Generally, courts will not infer

from a general contractual provision that the parties intended to waive a statutorily protected

right unless explicitly stated, and that waivers must be clear and unmistakable. Dow v. Billing,

2020 ME 10, ,i 17(dealt with waiver ofrights to marital property in a divorce).

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Contrary to the absurdity of the patties waiving the right to partition, the patties actions

clearly indicate they desire to be able to resolve their co-ownership of the property. Crites has

alleged in her counterclaim that there was at one time post divorce an agreement for her to buy

out Raymond's interest, but that arrangement apparently fell apatt over financing. Additionally,

as previously discussed, Crites filed a motion for relief from judgment requesting the divorce

judgment be set aside and that she be granted possession of the property. But as the District

Court judge indicated "Rule 60(b) is not intended to provide parties an alternate path to litigate

an equitable partition action.", the District Court refused to set aside the judgment and provide

further relief. In other words, the divorce court that had jurisdiction over the marital dissolution

has indicated that it is indeed a partition action that is required to resolve this matter.

Crites desires to remain in the prope1ty while Raymond desires to sell. These are not

binary choices excludable from the range of possible outcomes of a pat·tition action. The comt

finds the parties did not clearly and unmistakably waive their right of partition in this case. 1

Crites also raises res judicata. "The doctrine of res judicata prevents the relitigation of

matters already decided in order to promote judicial economy and efficiency, the stability of final

judgments, and fairness to litigants." Estate of Treworgy v. Comm'r, Health and Human Servs.,

2017 ME 179, ,r 11, 169 A.3d 416 (quotations and citations omitted). The doch-ine consists of

two components, issue preclusion and claim preclusion. Portland Water Dist. v. Town of

Standish, 2008 ME 23, ,r 7,940 A.2d 1097. The Law Court has characterized the two

components of res judicata as follows:

Issue preclusion, also referred to as collateral estoppel, prevents the relitigation of
factual issues already decided if the identical issue was determined by a prior final
judgment, and ... the party estopped had a fair opportunity and incentive to

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The court further notes that the Divorce Judgment was a court prepared form in which various boxes were checked
off and very basic terms were handwritten onto the blank lines. And Raymond was not represented by counsel at the
time of the divorce.

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litigate the issue in a prior proceeding. Claim preclusion bars relitigation if: (1)
the same parties or their privies are involved in both actions; (2) a valid final
judgment was entered in the prior action; and (3) the matters presented for
decision in the second action were, or might have been litigated in the first action.

Macomber v. Macquinn-Tweedie, 2003 ME 121,122, 834 A.2d 131. The Law Court requires

that a factual determination be "essential to the judgment," meaning it "must be regarded by the

court and the part[iesJ as essential to a determination on the merits," before issue preclusion can

apply. Pacheco v. Libby O'Brien Kingsley & Champion, LLC, 2022 ME 63, 11 8-9, 288 A.3d

398.

In short, neither the issue of waiver or partition have not been litigated in anyway. Crites

herself attempted to litigate via the motion for relief from judgment a means to remove herself

from owning and possessing the property jointly with Raymond and sought to have the property

set aside to her. But the District Court that handled the divorce shut down that litigation,

indicating a partition action was the appropriate action. Crites argument that Raymond already

had an opportunity in the divorce action to negotiate or litigate when and how the prope1ty could

be sold misses the mark, as the parties did not clearly and unmistakably waive the right to

partition.

As a matter of law, the parties did not waive the right to pmtition, and accordingly the

motion for summary judgment must be denied.

The entry is:

Defendant Sandra Crites's Motion for Summary Judgment
is DENIED.

The Clerk is directed to enter this order into the docket JV..-·· ······ - " ~ · /.......- ­
.........
reference pursuant to M.R.Civ.P. 79(a).

Date: June JQ2023

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