warner v. pope

Vermont Superior Court
Filed 01/31 24
Orleans nit

VERMONT SUPERIOR COURT £4 CIVIL DIVISION
Orleans Unit Case N0. 22-CV-04312
247 Main Street
NewportVT 05855
802-334-3305 gfi
WWW.Vermontjudiciary.org

Louise Warner v. Richard Pope, Jr.

ENTRY REGARDING MOTION
Title: Motion; Motion to Set Aside Judgment; Motion for Writ of Attachment; Motion for
Relief From Judgment; Motion for Temporary Restraining Order and Preliminary Injunction -
EMERGENCY; ; ; ; for Findings of Fact and Conclusions of Law (Motion: 8; 9; 11; 12; 13)
Filer: Deborah T. Bucknam; Deborah T. Bucknam; Deborah T. Bucknam; Deborah T.
Bucknam; Harold B. Stevens, III
Filed Date: November O6, 2023; November 16, 2023; November 28, 2023; November 29, 2023;
December 21, 2023

The motion is GRANTED IN PART and DENIED IN PART.

The present matter concerns property rights between a mother, her daughter, and the

daughter’s estranged husband. Following a series of preliminary and summary rulings that were
based on partial information, the Court conducted a hearing in this matter based on Defendant

Pope’s motion to set aside the earlier writ of attachment and summary judgment granted in this
matter. As explained below, the Court grants this motion and grants Pope’s request to re-occupy a

portion of the property located at 81 Cover Road in Newport, Vermont.

Finding;

Defendant Richard Pope, Jr. and Counter Defendant Angela Markwell were married
on October 9, 2009 in Newport Vermont. They have two children together who live the

mother in Canade. Plaintiff Louise Warner is Counter Defendant Markwell’s mother. Both
Markwell and Warner are Canadian citizens with primary residences in Canada. Pope is a
U.S. and Canadian citizen with Canadian permanent residency status. During the bulk of
their marriage, Pope and Markwell lived in Stanstead, Quebec in a house that Markwell

owned prior to their marriage. The testimony is that during the marriage, Pope contributed

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22—CV—04312 Louise Warner v. Richard Pope,Jr.
to the Stanstead home’s upkeep and expenses with money earned at his job. Markwell also
contributed all of her income to the household to maintaining it and raising the couple’s two
children.

In 2014, the parties purchased the lakefront property at 81 Cove Road in Newport,
Vermont. While the property and mortgage were in Markwell’s name, Pope credibly
testified that he contributed $16,000 toward the purchase price and agreed to guarantee the
purchase money loan, which was based on a re-finance of the parties’ Stanstead home. The
Cove Road property was not immediately habitable. It had been abandoned, and the
primary residence had to be torn down. Pope and Markwell did improvements to the garage
on the property, which had a small apartment on the second floor. Since 2015, the parties
have used this apartment as a residence when staying at the property. Pope took on the
work of rehabilitating the property and constructing a new residence. Along with assistance
from Markwell and a few contractors, Pope constructed a new residence, which as of trial is
not inhabitable, but has been framed, roofed, and sided.1 Pope estimates that of the work
done so far on the property, he is responsible for 60% of it. There was credible testimony
that Pope made numerous small purchases for material and equipment to construct the
house. It is also undisputed that Pope did all of the renovation work on the
garage/apartment to make it habitable for himself and his family.

The parties purchased the Cove Road property for $85,000. It is presently assessed at
$203,000 by the City of Newport, and there was credible testimony from Pope that when the
house is complete, the value is likely to increase to $300,000. This value, however, will need
a substantial amount of work to realize. Markwell and Warner’s contractor, Jesse Villeneuve
credibly testified that the house still needs approximately $57,000 in additional work and
repairs to complete basic construction.

1 There was extensive testimony regarding the condition of the house and whether Pope’s work was sufficiently up

to code. The Court will not, for the reasons detailed below, make findings on the exact value or worth of the new
building or the quality of the construction work. It is sufficient to note that the house is not presently habitable
and is unlikely to be habitable in the immediate future without substantial investment and continued work.

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22-CV-04312 Louise Warner v. Richard Pope, Jr.
During their relationship, Pope and Markwell appear to have slowly grown more and
more distant to the point where today there is open animosity between the parties. Markwell
puts the date of this schism at September 25, 2022 when she told Pope to leave their
residence in Canada following Pope’s alleged physical and verbal abuse of her. Pope’s
testimony painted a different, longer-term estrangement. Pope stated that as early as 2020,
the parties had grown distant, and that he began spending more and more time at the 81
Cove Road property. The Court finds both parties to be credible, but it finds the more
credible testimony lies with Pope’s version of events. The September 25, 2022 may have
been the culmination of their growing rift and the formal end to Pope residing with
Markwell, but it was not the beginning point of this dispute. This is evidenced by the fact
that most if not all of Pope’s personal possessions were moved and located to 81 Cove
Road. The evidence and testimony indicates that at some point prior to 2020, Pope began
spending more and more time at the Newport property, which only increased in 2020 during
COVID when travel restriction limited and complicated travel across the international
border, even for an exempt worker like Pope. By late 2021 to early 2022, Pope had largely
moved out of the residence in Canada as his primary residence and had begun occupying the
apartment at 81 Cove Road as his primary residence. Thus, in September 2022, when
Markwell formally kicked him out of their home in Canada, this was more of a formal
recognition of the change than change itself.

Two events further complicated the parties’ relationship. Just prior to events on
September 25, 2022, Pope was hospitalized in Vermont and diagnosed with advanced
Chronic Obstructive Pulmonary Disease (COPD). Doctors at the time gave Pope 3 to 5
years to live. Over the next several months, Pope’s ability to work decreased rapidly, and by
early 2023, he was unable to work and lost all income. Since his August hospitalization,
Pope has been on oxygen 24/7. Pope is dying, and he has limited assets or resources outside
of the common assets to which he and Markwell have contributed. Given Pope’s
circumstances, he has no other home or place to go. There was some testimony that Pope
has a mother in Maine, but such a situation would remove him from his doctors and medical
team as well as his children.
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22-CV-04312 Louise Warner v. Richard Pope, Jr.
The second event that complicated events is that Markwell transferred the 81 Cove
Road property on June 13, 2022 to her mother, Louise Warner. This transfer, Markwell and
Warner claim, was made for consideration in the amount of $109,750.30, which was the
outstanding mortgage on the property and an amount that Markwell claims she could not
manage. This transfer was done without the knowledge or consent of Pope. As part of this
transfer, Markwell and Warner executed a Vermont property transfer tax return stated the
transfer was without consideration. Neither Markwell, nor Warner paid any property
transfer tax or capital gains tax on the transfer to the State of Vermont. Since transferring
the property to Warner, Markwell has maintained control over the property and has
continued to pay expenses. She has paid for all the utilities associated with 81 Cove Road as
well as all property taxes. Markwell has also hired and directed contractors to perform work
at the property. After several hearings in this matter, the Court is persuaded that while
Warner’s name is on the deed, Markwell continues to act as the owner of the 81 Cove Road
property for all meaningful purposes. This is not to say that Markwell is managing the
property in a manner inconsistent with Warner’s wishes, but it is clear that nearly every
action from the hiring and supervision of contractors to strategic decisions on litigation and
how to evict Pope have been directed by Markwell and that Markwell has acted as if she
continues to own the property.

Legal Analysis

As a preliminary matter, Pope seeks to set aside the Court’s prior judgment and writ
of restitution, which it issued in September 2023 following a hearing where Pope did not
appear and following filings where Pope did not file an opposition. Pope has testified that
despite receiving mail at 81 Cove Road, he has not received mail there consistently and has,
upon occasion, found mail missing. Pope has credibly testified that he was unaware of both
the July 27, 2023 hearing as well as the subsequent motions for summary judgment filed by
Warner. The Court finds this testimony consistent with Pope’s earlier appearances in this
case wherein he filed timely responses and oppositions to Warner’s complaint and motion.
Further, the Court finds this situation was further complicated by Pope’s illness that has
limited his access to the physical courthouse and his lack of familiarity with internet-based
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22-CV-04312 Louise Warner v. Richard Pope, Jr.
services. Finally, after hearing testimony, the Court is persuaded that its prior determination
was based off incorrect or partial representations and that the nature of the parties’
relationship, ownership, and claims are more complicated than Plaintiff has previously
portrayed them to be. For these reasons, the Court finds sufficient basis to set aside the
summary judgment order and to rescind the writ or restitution under V.R.C.P. 60(b)(6).

While Defendant Pope was never listed on the deed to the property, the most recent
evidence demonstrates that he has an equitable claim to title from his contributions to the
purchase of the property, his investment in the property through the purchase of
improvements and sweat equity of performing improvements. While there is some dispute
about the nature and quality of his work, the evidence demonstrates that he contributed a
substantial amount of work to improving the property. Furthermore, the evidence indicates
that prior to the June 2022 transfer of the property, Pope had established the garage
apartment as his homestead. Under Vermont law, a property where one or more spouses
can make a homestead claim cannot be transferred without the signature of both spouses.
15 V.S.A. § 64.

Under the homestead exemption of 27 V.S.A. § 101, the party claiming it must have
some ownership claim to the property, even if that claim is an equitable one, as well as actual
occupancy. In re Avery, 41 B.R. 224, 226 (Bankr.D.Vt. 1984).

Given the additional evidence and testimony demonstrating Pope’s interest in and
occupancy of the property, the Court cannot sustain his removal from the property. Further
complicating this analysis is evidence demonstrating that the transfer from Markwell to
Warner was substantially flawed and has not been treated by the parties as an actual transfer
as Markwell has continued to control and manage the property and has carried the costs of
maintaining the property. Under such circumstances, it would be inequitable to treat
Markwell’s transfer of the property to Warner as terminating whatever homestead and on-
going occupancy rights that were enjoyed by Pope prior to the transfer while the parties are
ignoring every other distinction of the transfer in their behavior and use of the property.

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22-CV-04312 Louise Warner v. Richard Pope, Jr.
Based on this, the Court finds that the June 2022 transfer from Markwell to Warner
was improper as Pope had a potential homestead claim in the garage/apartment portion of
the property at the time of transfer and that his subsequent removal under the entry and
detainer statutes was improper. Further, the Court finds grounds for a Pope to have a
constructive trust interest in the property. Shattuck v. Peck, 2013 VT 1, ¶ 11.

ORDER

Given these equities, the Court directs Warner to restore Pope to occupancy of the
garage and garage apartment at 81 Cove Road in Newport, Vermont within the next seven
calendar days. This Order extends only to the garage and apartment area that Pope was
occupying prior to his removal from the property as well as its immediate yard and
driveway/parking access. It does not, at this time, extend to the partially built house or any
other portion of the property that Pope was not occupying. If possession is not restored,
Pope may request a formal writ of restitution, which the Court will issue and will have
served by the Orleans County Sheriff.

Given that the Court is able to resolve this preliminary issue, it will not address
Defendant’s claims of fraudulent conveyance or intentional infliction of emotional distress at
this time. Further given this restoration of Pope’s occupancy, the Court agrees with Plaintiff
that the majority of the remaining issues in this case fall under the jurisdiction of the Family
Division. The exception to this is the question of whether Pope’s equitable and homestead
interests in the property have effectively nullified the Markwell to Warner deed or simply
carved out an ownership intertest for Pope while keeping the remainder of the Markwell to
Warner transfer intact.

If it is the former, then this matter would fall under the jurisdiction of the Family
Division where the parties have filed. If it is the latter, then the question of partition arises.
As well, Pope may elect to continue his IIED claims, fraudulent conveyance claims, and
financial exploitation of a vulnerable adult claims against Warner and/or Markwell in the
present matter. The Court shall set this for a status conference in 30 days, unless the parties

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22-CV-04312 Louise Warner v. Richard Pope, Jr.
file a stipulation or joint request to stay these proceedings following the restoration of Pope
to the garage/apartment space.

Finally, given that Pope’s right to occupy comes from his equitable and homestead
claims, the Court denies Plaintiff’s request for rent and compensation for his occupancy of
the property, but Pope is responsible for any utilities and maintenance costs associated with
his occupancy of the property. Issues such as property tax, insurance, and other property-
wide maintenance costs will be addressed at a later hearing.

Electronically signed on 1/30/2024 2:08 PM pursuant to V.R.E.F. 9(d)

__________________________________
Daniel Richardson
Superior Court Judge

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