2004-247, DENA DeLUCCA & a. v. ROLAND DeLUCCA

will to the respondent, Rolan d H. DeLucca, and the petitioners. Each were formerly owned by Mildred F. DeLucca. Title to the property passed by and is located on the northerly side of Crockett Road (“northerly lot”). Both lots southerly side of Crockett Road (“southerly lot”); the other contains 28.97 acres of two parcels of land. One parcel contains 23.14 acres and is located on the The record supports the following facts. The petitioners sought partition

proceeds. We vacate and remand. Probate Court (Hampe, J.) t o partition property by selling it and dividing the Cushman and Lori Fasshauer, appeal an order from the Belknap County NADEAU, J. The petitioners, Dena DeLucca, Dean DeLucca, Toni

brief and orally), for the respondent. Fitzgerald, Ses sler & Nichols, P.A., of Laconia (Shawn M. Tanguay on the

brief and orally), for the petitioners. Cleveland, Waters and Bass, P.A., of Concord (William B. Pribis on the

No. 2004 - 247 Belknap County P robate Court

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

licensed appraiser, that if the properties were considered single lots, they the southerly lot. During trial there was testimony by Joanna Chase, a probate court’s ruling that the northerly lot was worth significantly more than A review of the record reveals the evidence was sufficient to sustain the

the weight to be given evidence. Cook v. Sullivan, 149 N.H. 774, 780 ( p. 2 2003). court’s resolution of conflicts in the testimony, the credibility of witnesses, and 598, 602 (2000) (quotation and citation omitted). Thus, we defer to the trial expert witnesses.” Tennessee Gas Pipeline Co. v. Town of Hudson, 145 N.H. portions of the evidence presented as he found proper, including that of the to resolve conflicts in the evidence. The trial court could accept or reject such brackets omitted). Furthermore, “it was within the discretion of the trial judge not compelled to believe even uncontroverted evidence.” Id. (quotation and best position to measure the persuasiveness and credibility of evidence and is reviewing this record we are guided by the rule that “the trier of fact is in the th e testimony presented. In re Buttrick, 134 N.H. 675, 676 (1991). In the findings, as made by the probate judge, could be reasonably made, given We review the record of the proceedings before the probate court to determine if law. See RSA 567 - A:4 (1997); In re Estate of Locke, 148 N.H. 754, 755 (2002). unless it is unsupported by the evidence or plainly erroneou s as a matter of 232 (1993). With that in mind, we will not disturb the probate court’s decree in order to achieve complete justice. Boissonnault v. Savage, 137 N.H. 229, exercise its equity powers and consider the special circumstances of the case, finding that they were not. An action for partition calls upon the court to essentially of the same value, and that there was insufficient evidence for the introduced in to evidence two separate appraisals showing both lots to be With respect to the first issue, the petitioners argue that at trial they

inconvenience. as to give each owner his or her share or interest without great prejudice or order a sale of property without finding that the property cannot be divided so northerly lot was of significantly greater value; and ( p. 2 2) in ruling that it could The petitioners contend the trial court erred: (1) when it found that the

they be sold and the proceeds divided among the parties. fault. The trial court found the lots were not of equal value and ordered that that in any event, any deterioration of the southerly lot was the respondent’s southerly lot. The petitioners argued that both lots were of equal value and partition the la nd by giving them the northerly lot and respondent the in a manner detrimental to the property. The petitioners asked the court to petitioners argue that the respondent has allowed the southerly lot to be used by the respondent’s son and grandsons to work on their race cars. The common. The southerly lot contains a garage building, which is cu rrently used common and the respondent holds an undivided 50% interest as a tenant in petitioner holds an undivided 1 p. 2 2.5% interest in the property as a tenant in p. 3 3

it cannot be divided so as to give each owner his or her share or petition that the property is so situated or is of such a nature that When the proceedings are pending, if it is alleged in the

RSA 547 - C:25 (Supp. 2004) provides: We begin by examining the relevant provisions of RSA chapter 547 - C.

de novo. See Remington Invs., 150 N.H. at 654. N.H. 442, 445 (200 p. 3 3). We review the probate court’s interpretation of a statute scheme and not in isolation. In the Matter of Watterworth & Watterworth, 149 Furthermore, w e interpret statutes in the context of the overall statutory statutory language is ambiguous, we need not look to legislative intent. Id. its meaning is not subject to modification. Id. Unless we find that the and ordinary meaning. Id. Where the language of a statute is clear on its face, the statute itself, and, if possible, construe that language according to its plain N.H. 653, 654 (2004). In interpreting a statute, we first look to the language of words of a statute considered as a whole. Remington Invs. v. Howard, 150 court is the final arbiter of the intent of the legislatur e as expressed in the The second issue presents a question of statutory interpretation. This

matter of law. valuation is not lacking in evidential support, we do not find it erroneous as a Barnstead, 1 p. 3 39 N.H. 476, 478 - 79 (1995). Therefore, be cause the trial court’s particularly when a view has been taken. See Husnander v. Town of property, and the findings of the trial court are within its sound discretion, 143 N.H. 122, 127 (1998). We also note that the trial court had a view of the unsupported by the evidence. See Rye Beach Country Club v. Town of Rye, trial court, and we will not overturn its finding unless it is clearly erroneous or stan dard. In addition, the valuation of property is a question of fact for the thus it was not error for the trial court to apply the highest and best use 145 N.H. at 602 (brackets omitted). Here, there is no legislative directive and formula in the absence of legislative directive.” Tennessee Gas Pipeline Co., never attempted to tie the fact finder’s hands with a rigid fa ir market value standard in determining the lots had disparate values. However, we “have subdivided lots and when it applied the “highest and best use” valuation hypothetical subdivision plan that did not establish an actual value for the The petitioners argue the trial court erred when it relied upon a

significantly more valuable than the southerly lot. testimony and his actual observation of the lots, that the northerly lot was cul - de - sac were constructed. The trial court fou nd, based upon the expert testified the northerly lot could be subdivided into five lots, if a short road and surveyor, testified that the southerly lot could be subdivided into two lots. He as to the current highest and bes t use of the lots. Dean M. Clark, a land would be of approximately the same value. However, she was unable to testify p. 4 4

sale is necessary, if not based o n the consent of the parties or on necessity and advisability of such sale. . . . A determination that a rather than a partition in kind, is on the party alleging the burden of proof to establish the necessity for a partition sale, ordered unless the necessity for it is clearly established. The into money, possibly against the will of an owner, it should not be Since a partition sale results in the conversion of real estate

inconvenience. See RSA 5 p. 4 47 - C:25. so as to give each owner his or he r share or interest without great prejudice or that the property is so situated or is of such a nature that it cannot be divided must look at each parcel individually and only order sale if it is determined N.E.2d 9, 10 (M ass. 1947). Real property is unique and thus the trial court itself by metes and bounds among the tenants in common.” Mello v. Mello, 76 We note that the “primary method of partition is by division of the land

Moran, 5 p. 4 4 N.H. 441, 443 (1874). for a choice of the parcels into which the premises are divided. Timon v. the court should consider such offers as may be made by the several owners Leavitt v. Benzing, 97 N.H. 118, 120 (1951). In addition, before ordering sale, as a whole may be substantially greater than the aggregate value of its parts. or inconvenience, the court should consider the fact that the value of the land In determining whether lands may be partitioned without great prejudice

of real estate. Pedersen, 151 N.H. at 67. stated that probate cou rts have full authority to try issues relating to partition ordered. Abbott v. Abbott, 77 N.H. 601, 602 (1915). Additionally, we have prejudice or inconvenience is required before a sale of the whole can be of the question whether a physical division can be made without great case. Pedersen v. Brook, 151 N.H. 65, 67 (200 p. 4 4). Furthermore, determination are appropriate to the special circumstances and situation of each particular court’s equity powers, so that complete justice may be done by such means as Recently, we held that an action to partition property calls upon the

jurisdiction by the probate court in any proceeding pending before it.” are to be liberally construed in favor of the exercise of broad equitable t his chapter shall be remedial in nature. The provisions of this chapter RSA 5 p. 4 47 - C:30 (Supp. 2004) further provides: “Proceedings under

proceeds, as a court of equity may do in like cases. be necessary to cause such sale and the distribution of the rights, titles, or interests, and may make all other orders that may sale to be divided among the owners according to their resp ective finds, the court may order it to be sold and the proceeds from the interest without great prejudice or inconvenience and the court so p. 5 5

concurred. BRODERICK, C.J., and DALIANIS, DUGGAN and GALWAY, JJ.,

conduct of the respondent should affect his share. determinations. The court should also determine the extent to which any the court. On remand, the trial co urt should consider any contamination in its the property by the actions or inactions of the parties” should be considered by RSA p. 5 547 - C:29 (Supp. 2004), provides that “waste or other detriment caused to due to such h azardous waste would be the responsibility of the respondent. or allowed to be caused, contamination of the southerly lot and that any loss The trial court found that the respondent may have potentially caused,

before ordering sale. property cannot be divided without causing great prejudice or inconvenience under the statute the trial court must make an express finding that the accomplished by agreement or upon conditions set by the court, we hold that While the court may order sale of the properties if partition cannot be

not, then sale of the lots may be ordered. owner his or her share or interest without great prejudice or inconvenience. If determine whether the properties together can be divided so as to give each lot should be ordered. If neither lot can be so divided, the court should prejudice or inconvenience. If either lot could be divided, then partition o f that determine whether each lot individually can be divided without causing such in great prejudice or inconvenience. On remand, the trial court must been made as to whether each lot could be divi ded separately without resulting individually to each party. Under the statute a determination also should have sold because they were not of the same value and could not be awarded the two lots together. That error resulted in the order that the lots had to be separately, we hold that the trial court erred by limiting its assessment only to construe RSA p. 5 547 - C:25, however, to mean that each lot must also be assessed the a uthority to order the sale of property and divide the proceeds. Because we According to the plain language of RSA 547 - C:25, the probate court has

p. 5 59A Am. Jur. 2d Partition § 134 (2003) (footnotes omitted).

of sale. findings grounded in competent evidence, will not support an order