2011-107, Tracy M. Walbridge v. The Estate of Raymond A. Beaudoin, Jr. & a.

No. 2011-107 Strafford

property located at 15 Walbridge Court in Rochester. The petitioner and her

Raymond A. Beaudoin, Jr. and its co-administrators, Steven P. Beaudoin and

, of Rochester (Carl W. Potvin, of Dover (Gregory D. Wirth

page is: http://www.courts.state.nh.us/supreme. right exempt from the mortgage held by the respondents, the Estate of a.m. on the morning of their release. The direct address of the court's home Superior Court (O’Neill, J.) denying her petition to establish her homestead reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 HICKS, J. The petitioner, Tracy M. Walbridge, appeals an order of the

on the brief and orally), for the respondent. The Law Offices of Gregory D. Wirth, P.L.L.C.

brief and orally), for the petitioner. Law Office of Carl W. Potvin, P.C. on the to press. Errors may be reported by E-mail at the following address:

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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 22 as exempt from the respondents’ mortgage. See p. 2 mortgage and promissory deed were conveyed, her homestead right was not

the petitioner did not actually occupy the Walbridge Court property when the

respondents’ mortgage. Following a hearing, the trial court ruled that because homestead right to the Walbridge Court property was exempt from the In May 2010, the petitioner filed a petition to establish that her

although it has been stayed. sale by the respondent that was originally scheduled for June 17, 2010, Court property. The property is subject to a real estate mortgage foreclosure

decree, the petitioner was awarded all right, title, and interest in the Walbridge

investments in real estate, or the rents and profits derived therefrom.” Stewart and their families, the shelter of the homestead roof; not to exempt mere homestead.” “The purpose of the homestead exemption is to secure to debtors The petitioner and Walbridge divorced in 2009. Pursuant to their divorce

worth of his or her homestead, or of his or her interest therein, as a Under RSA 480:1 (Supp. 2011), “[e]very person is entitled to $100,000 Court home until June 4, 2005. yet occupied. The petitioner and Walbridge did not move into the Walbridge equivalent to actual occupancy.” We disagree.

were conveyed, the home on Walbridge Court was not completed and was not the home . . . followed by [her] actual occupancy within a reasonable time, was

homestead of the mortgagor. When the mortgage deed and promissory note contends that her “obvious intention of present and immediate occupancy of property and states that the Walbridge Court property is not part of the property was not established until she actually, physically occupied it. She Beaudoin, Jr. The deed lists Walbridge’s address as the Charles Street matter of law when it found that her homestead right in the Walbridge Court

on the Walbridge Court property in favor of the decedent, Raymond A. On appeal, the petitioner first argues that the trial court erred as a

to the existence of the homestead right.” Id. (quotation and brackets omitted); v. Bader, 154 N.H. 75, 88 (2006) (quotation omitted). “Occupancy is essential

to the petitioner, Walbridge executed a mortgage deed and a promissory note homestead rights to that property. On April 28, 2005, allegedly unbeknownst mortgage on the Charles Street property, and the petitioner released her

appeal followed.

building the home, they lived at 74 Charles Street in Rochester. petitioner and Walbridge built a home on the property. While they were

when it was undeveloped land. Over the next approximately two years, the then husband, Steven Walbridge (Walbridge), purchased this property in 2003, brief, are deemed waived. In re Estate of King p. 3 All issues raised in the petitioner’s notice of appeal, which she did not

acquired homestead right “according to law.” RSA 480:4.

have to comply with RSA 480:5-a in order to be a “charge” on her later-

husband, if any, with the formalities required for the conveyance of land.” In after the mortgage to the respondents was conveyed, the mortgage deed did not petitioner did not have a homestead right in the Walbridge Court property until circumstances, RSA 480:5-a does not apply to the mortgage deed. Because the

.

payment of the purchase money, unless it is executed by the owner and wife or DALIANIS, C.J., and CONBOY and LYNN, JJ., concurred. acquired her homestead right in the property. We hold that under these Here, by contrast, the mortgage deed was executed before the petitioner A f f i r m e d

mortgage instrument. Id

homestead right, except a mortgage made at the time of purchase to secure 480:5-a. RSA 480:5-a provides that “[n]o deed shall convey or encumber the she actually and physically occupied the Walbridge Court property. Id homestead right “according to law,” it must satisfy the requirements of RSA not err when it found that the petitioner’s homestead right did not accrue until to a homestead right, we conclude, as a matter of law, that the trial court did not comply with RSA 480:5-a. Id according to law.” RSA 480:4. In Chase v. Ameriquest Mortgage Co. at 22-23. encumber the plaintiff’s homestead right in the property, in part, because it did right is exempt from attachment or encumbrance. Id. We held that this mortgage instrument did not N.H. at 20. Several years later, the husband forged the plaintiff’s name on a mortgage deed did not comply with RSA 480:5-a. Generally, the homestead , the plaintiff and her husband bought their home in 1996. Chase, 155

homestead right in the property. See

19, 22-23 (2007), we held that for a mortgage to be a “charge” on the

Because “occupancy must be actual and physical in nature” to give rise exempt from “the enforcement of mortgages which are made a charge thereon

Court property is exempt from the respondents’ mortgage because the The petitioner next asserts that her homestead right in the Walbridge

intent to occupy the property in the future was insufficient to establish her

or occupancy, is insufficient to establish a homestead.” Id. occupy the premises as a home at some future time, without actual residency actual and physical in nature.” Bader, 154 N.H. at 88. “The mere intention to see Currier v. Woodward, 62 N.H. 63, 65 (1882). “Such occupancy must be