Jerry Perry v. Patricia Brown
2019-0410
N.H.Mar 13, 2020Background
- Petitioner Jerry Perry filed a partition action under RSA chapter 547-C to divide a single-family residence with a detached three-car garage held by respondent Patricia Brown.
- Trial court found the property could not be physically divided without great prejudice or inconvenience and ordered it sold, but allowed Brown to keep the property if she reimbursed Perry for his contributions and paid him for his half-interest based on a current appraisal.
- Brown argued the court should have awarded the property to her (allowing a buyout), that most of her exhibits were wrongly excluded, and that the 30-day marketing order violated her due process/right to appeal.
- The record showed Brown could not promptly refinance to reimburse Perry, and the trial court conditioned any buyout on timely financing and marketing constraints.
- Brown’s timely appeal stayed the sale order; the Supreme Court reviewed the trial court’s discretionary and evidentiary rulings for unsustainable exercise of discretion and affirmed.
Issues
| Issue | Plaintiff's Argument (Perry) | Defendant's Argument (Brown) | Held |
|---|---|---|---|
| Whether court erred by ordering sale rather than awarding property to one party | Sale appropriate given partition statute and circumstances | Court should have awarded property to Brown or allowed her to buy out Perry per RSA 547-C:29 | Affirmed sale order; court allowed buyout option but sale proper given Brown’s inability to promptly reimburse; no unsustainable discretion |
| Admissibility of respondent’s exhibits | Exhibits irrelevant to Perry | Exhibits showed Brown’s mixed personal/business use and were relevant under RSA 547-C:29 | Trial court’s exclusion (except town assessment) not an unsustainable exercise of discretion; no prejudice shown |
| Due process / effect on right to appeal of 30-day marketing order | N/A (Perry sought sale enforcement) | Marketing-within-30-days directive deprived Brown of ability to appeal and obtain stay | No error: Brown’s timely appeal stayed the order; trial court acknowledged it could not order sale pending appeal |
Key Cases Cited
- DeLucca v. DeLucca, 152 N.H. 100 (2005) (probate court may order sale and divide proceeds in partition)
- Hayes, Tr. v. Connolly, Tr., 172 N.H. 102 (2019) (partition relief is equitable; review for unsustainable exercise of discretion)
- In the Matter of McArdle & McArdle, 162 N.H. 482 (2011) (evidentiary rulings reviewed for unsustainable exercise of discretion and prejudice)
- Gray v. Kelly, 161 N.H. 160 (2010) (timely appeal stays trial court order)