Rebecca W. Belanger v. Lisa M. Yorke , 2020 ME 24 ( 2020 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2020 ME 24
Docket: BCD-19-115
Argued: September 26, 2019
Decided: February 25, 2020
Panel: SAUFLEY, C.J., and MEAD, GORMAN,* JABAR, and HUMPHREY, JJ.**
Majority: SAUFLEY, C.J., and MEAD, GORMAN, and HUMPHREY, JJ.
Concurrence/
Dissent: JABAR, J.
REBECCA W. BELANGER
v.
LISA M. YORKE
GORMAN, J.
[¶1] Rebecca W. Belanger (Belanger) and Lisa M. Yorke (Yorke) each
claim to have taken title to a piece of property by way of a deed delivered to her
by Brad Belanger (Brad). Brad deeded the property to his daughter, Yorke,
before he deeded it to his wife, Belanger, but Belanger recorded her deed before
Yorke recorded hers. As the trial court (Business and Consumer Docket,
Mulhern, J.) explained, “[t]his is a case about a piece of real property that a man
*
Although not available at oral argument, Justice Gorman participated in the development of this
opinion. See M.R. App. P. 12(a)(2) (“A qualified Justice may participate in a decision even though not
present at oral argument.”).
** Although Justices Alexander and Hjelm participated in the appeal, they retired before this
opinion was certified.
2
inherited from his parents and seems to have conveyed to both his wife and his
daughter (his wife’s stepdaughter) at different times during his life. . . . Both
women now claim exclusive title to the property, and have sued each other for,
inter alia, a declaratory judgment to that effect.”
[¶2] The complex procedural history of this case includes cross-motions
for partial summary judgment and, later, a request for judgment based on a
stipulated record; both of these decisions are currently before us. In ruling on
the summary judgment motions, the court concluded “as a matter of law” that
33 M.R.S. § 480, which requires the signature of a nonowner spouse on a
transfer of real property in certain circumstances, was not an affirmative
defense to Yorke’s ownership claim. Later in the proceedings, based on a
stipulated record, the court (Duddy, J.) found that Brad’s deed to Belanger was
not supported by consideration and that, therefore, she was not a bona fide
purchaser of the property for purposes of Maine’s recording statute, 33 M.R.S.
§ 201 (2018). Concluding that resolution of the consideration issue rendered
all other contested issues moot, the court entered an order of final judgment,
holding that Yorke owned the property. Belanger challenges both of these
rulings on appeal. After reviewing the stipulated facts and the applicable law,
we affirm the ruling regarding section 480, vacate the final judgment entered
3
on behalf of Yorke on the issue of consideration, and remand to the trial court
to address unresolved issues.
I. BACKGROUND
[¶3] The parties stipulated to the following relevant facts.1 In 1976, Brad
acquired property located in West Bath (the Camp) through a deed from his
parents. Belanger and Brad were married on October 1, 1977. This was Brad’s
second marriage.
[¶4] In 1977, shortly after their marriage, Brad and Belanger entered
into an oral agreement (the 1977 Agreement) by which each would deed his or
her separately-owned real estate to the other as his or her joint tenant. In 1978,
Belanger conveyed property on Prospect Street in Bath (the Prospect Street
Property) to herself and Brad as joint tenants. Brad did not reciprocate by
deeding the Camp to himself and Belanger in 1977 or 1978. Instead, in 1978,
Brad and Belanger agreed to postpone the transfer until after his parents died.
Although Brad’s parents died in 1984 and 1989, Brad did not deed the property
to himself and Belanger after either death.
1 Although there are slight differences between the factual record created through the summary
judgment filings and the stipulated record, those differences do not affect this opinion. We use the
stipulated record to provide background for the opinion.
4
[¶5] In 2005, Brad deeded the Camp to Yorke, his daughter from his first
marriage. Yorke did not record the deed until many years later, because she
wanted to give Brad time to tell Belanger about it. Neither Yorke nor Brad ever
did tell Belanger of the deed’s existence.
[¶6] In 2016, during Brad and Belanger’s mutual estate planning process,
Brad executed a deed transferring the Camp to himself and Belanger as joint
tenants, consistent with the 1977 Agreement. Belanger recorded her deed on
June 29, 2016. Yorke recorded her deed on July 15, 2016. Brad died on
August 21, 2016. He was survived by Belanger and by three adult children,
including Yorke. Yorke learned of the 1977 Agreement between Brad and
Belanger after Brad’s death.
[¶7] Belanger filed her initial complaint in the Superior Court (Sagadahoc
County)2 on April 14, 2017, seeking, inter alia, a declaratory judgment
establishing her as the sole legal owner of the Camp and damages for slander of
title. Yorke filed a counterclaim seeking a declaratory judgment establishing
her, not Belanger, as the sole legal owner of the property and asserting a claim
of undue influence. Both parties purported to have taken title by way of the
deeds delivered to them by Brad.
On Belanger’s application, the case was transferred to the Business and Consumer Docket on
2
November 28, 2017.
5
[¶8] On April 24, 2018, Belanger filed a motion for partial summary
judgment with regard to her declaratory judgment and slander of title claims
and seeking judgment in her favor on Yorke’s counterclaims. In that motion,
she argued that as Brad’s widow she had a superior claim to the property
because Brad’s transfer to Yorke was invalid in view of the fact that Belanger
did not sign the deed as required by 33 M.R.S.A. § 480 (1999);3 that she held
superior title by operation of the Maine Recording Act, 33 M.R.S. § 201; that
Yorke’s deed was invalid because it failed to adequately describe the property;
that Yorke was estopped from claiming a right to the property by the
affirmative defenses of equitable estoppel and laches; and that Yorke’s claim of
undue influence against Belanger must fail as a matter of law. Yorke countered
3 The transfer to which the section 480 argument applies occurred in June of 2005. Thus, all
relevant citations are to the statute in effect at that time, which provided, in relevant part:
An owner of real estate may convey that real estate, or any interest in it free from
any claim to the real estate by his nonowner spouse, by deed, mortgage or any other
instrument, without signature of his nonowner spouse, unless:
1. Nonbona fide purchaser. The transfer requires signature pursuant to the
Title 18-A, section 2-202, subsections (1) and (3) . . . ;
....
After that conveyance, any claim of the nonowner spouse under probate, divorce
or any other laws, shall be against the proceeds of that conveyance and not against
the real estate.
33 M.R.S.A. § 480 (1999). Section 480 has since been amended, though not in any way relevant to
this appeal. See P.L. 2017, ch. 402, §§ A-1 to -2 (effective Sept. 1, 2019); P.L. 2019, ch. 417, § B-14.
6
with her own motion for partial summary judgment on the section 480 issue
and the affirmative defenses Belanger had raised.
[¶9] On November 2, 2018, after oral argument, the court (Mulhern, J.)
issued an order (the Combined Order) granting Yorke a partial summary
judgment as to the section 480 issue, concluding “as a matter of law that
33 M.R.S. § 480 is not an affirmative defense to Ms. Yorke’s ownership.” The
court determined that genuine disputes of fact remained as to Belanger’s claims
of slander of title, estoppel, and laches, and denied her motion for summary
judgment as to those issues. It also found that genuine disputes of material fact
remained regarding Yorke’s claim of undue influence and denied summary
judgment on that count.
[¶10] As the matter proceeded toward trial, Yorke sought leave to file a
second motion for summary judgment, having identified a discrete legal issue
that she believed could resolve the case: whether Brad’s deed to Belanger was
supported by consideration. The court (Duddy, J.) denied this request as
untimely but agreed to consider motions for judgment on the issue if the parties
could agree on a stipulated record and abbreviated briefing schedule. The
parties so agreed, submitted a stipulated record, and briefed the issue.
7
[¶11] On March 7, 2019, the court entered a judgment on the stipulated
record in favor of Yorke. The court found that Belanger provided no “new
consideration” to Brad in 2016 and noted that Brad’s verbal 1978 promise to
transfer the property to Belanger “was unenforceable due to the statute of
frauds.” Based largely on those findings, the court determined that Brad’s deed
to Belanger “was not supported by consideration, and thus [Belanger] was not
a bona fide purchaser for the purposes of Maine’s Recording Act.” Shortly
thereafter, the court issued a final judgment, concluding that Yorke owned the
real estate at issue and that, “[a]s a result of the findings of fact and conclusions
of law contained in the Combined Order and Stipulated Record Order, all other
claims raised by the parties are moot.”
[¶12] Belanger appeals, asserting that the court erred in holding that
Yorke’s ownership of the property is not barred by section 480 and that there
had been no consideration for the 2016 deed to her.
II. DISCUSSION
A. Title 33 M.R.S.A. § 480
[¶13] As discussed above, the court ruled on the section 480 issue in the
context of Yorke’s motion for summary judgment. “We review the grant of a
motion for summary judgment de novo, and consider both the evidence and
8
any reasonable inferences that the evidence produces in the light most
favorable to the party against whom the summary judgment has been granted
in order to determine if there is a genuine issue of material fact.” Grant v. Foster
Wheeler, LLC, 2016 ME 85, ¶ 12, 140 A.3d 1242 (quotation marks omitted). A
genuine issue of material fact exists “when a fact-finder must choose between
competing versions of the truth, even if one party’s version appears more
credible or persuasive.” Id. (quotation marks omitted). When there is no
genuine issue of material fact, “we review de novo the trial court’s
interpretation and application of the relevant statutes and legal concepts.” Id.
¶ 13 (quotation marks omitted).
[¶14] At the time of Brad’s transfer to Yorke, there were two sets of
circumstances under which a transfer of real estate to someone other than a
bona fide purchaser required the signature of the transferor’s nonowner
spouse. 33 M.R.S.A. § 480. Relevant to this case is the provision in subsection
480(1) requiring the signature of a nonowner spouse when “[t]he transfer
requires signature pursuant to [18-A M.R.S.A. § 2-202(1)].”
9
[¶15] Title 18-A M.R.S.A. § 2-202(1) (1998),4 in turn, required signatures
of nonowner spouses for “[a]ny transfer under which the decedent retained at
the time of his death the possession or enjoyment of, or right to income from,
the property.” If an owner of real estate transferred the property without the
signature of a nonowner spouse, any subsequent “claim of the nonowner
spouse under probate, divorce or any other laws, shall be against the proceeds
of that conveyance and not against the real estate.” 33 M.R.S.A. § 480.
[¶16] Belanger argues that Brad “retained the possession [or] enjoyment
of” the Camp property at the time of his death, and thus her signature was
required on the Yorke Deed. Even viewed in the light most favorable to
Belanger, however, the parties’ statements of material fact do not create a
genuine dispute of material fact as to whether Brad maintained possession or
enjoyment of the Camp at the time of his death. The record shows that Brad
and Belanger last spent a night at the Camp in the 1980s, and although they
kept a boat there, the last time the couple used the boat was “six or seven years
ago”—that is, no later than 2012. In contrast, the Yorke family used the Camp
several weekends per month, and Yorke’s husband lived at the Camp full time
4 In 2017, 18-A M.R.S. § 2-202 was recodified at 18-C M.R.S. § 2-208(1). See P.L. 2017, ch. 402,
§§ A-1 to -2 (effective Sept. 1, 2019); see also P.L. 2019, ch. 417, § B-14. Again, all references are to
the statute in effect in 2005, the time of the relevant transfer. See supra ¶ 8 & n.3.
10
for a period beginning in 2015. The Yorkes had spent tens of thousands of
dollars in repair and maintenance costs since 2005. Because the record does
not support the conclusion that there is any genuine dispute as to whether Brad
maintained the “possession or enjoyment” of the Camp property at the time of
his death in 2016, Brad’s 2005 gift transfer to Yorke is not the type of transfer
that required the signature of a nonowner spouse pursuant to section 480. The
court did not err in granting summary judgment on that issue.
[¶17] Belanger’s argument also fails for a second reason, grounded in the
statutory language of section 480. Even assuming for the sake of argument that
the statute required Belanger’s signature on the Yorke Deed, the language of
the statute does not provide her with a claim against the real estate as a remedy.
As noted above, section 480 provides an explicit remedy for nonowner spouses:
“After [a conveyance by the owner spouse], any claim of the nonowner spouse
under probate, divorce or any other laws, shall be against the proceeds of that
conveyance and not against the real estate.” Belanger argues that section 480
must provide an implied remedy for nonowner spouses that includes a claim to
the real estate where the improper transfer is gratuitous, because the proceeds
are necessarily zero in such a situation, leaving the nonowner spouse with no
remedy at all. In order to avoid an illogical result, argues Belanger, section 480
11
must be interpreted to provide her with an affirmative defense against Yorke’s
ownership claim. Belanger’s argument ignores the fact that the Maine Probate
Code provides spouses in such a position a clear remedy by including the actual
value of such gratuitous transfers in the augmented estate from which a
surviving spouse may take his or her elective share. See 18-A M.R.S.A.
§ 2-202(1).
[¶18] Belanger posits an implausible reading of the plain language of
section 480, grounded in an argument that, absent such a reading, spouses in
her position will be left without a remedy to a legal wrong. The plain language
of the statute, however, does not support Belanger’s position, and a remedy
does exist elsewhere in Maine law. Furthermore, even if Belanger’s
interpretation prevailed, the record cannot support a finding in her favor. We
affirm the trial court’s grant of Yorke’s motion for summary judgment on the
issue of Belanger’s section 480 affirmative defense.
B. Consideration
[¶19] The court resolved the consideration issue on a stipulated record,
which consisted of the stipulated statement of facts plus certain exhibits. “[A]
record of stipulated facts does not, by itself, mean that there are no genuine
issues of material fact,” Blue Sky West, LLC v. Me. Revenue Servs., 2019 ME 137,
12
¶ 16 n.10, 215 A.3d 812, and unlike in the summary judgment context, a trial
court undertaking a merits analysis on a stipulated record may “draw factual
inferences from that evidence and decide disputed inferences of material fact
to reach a final result,” Rose v. Parsons, 2015 ME 73, ¶ 8, 118 A.3d 220. Although
we normally review with deference a trial court’s factual findings, such as
whether consideration existed, we review “de novo for errors of law when the
parties stipulate” to a set of facts. Christian Fellowship & Renewal Ctr. v. Town
of Limington, 2006 ME 44, ¶ 9, 896 A.2d 287.
[¶20] The trial court determined that Brad’s 2016 deed to Belanger was
not supported by consideration largely because Belanger advanced no “new
consideration” to Brad in 2016. To support this determination, the trial court
cited language from our cases explaining the familiar rule that “past
consideration” is not consideration. Cadwallader v. Clifton R. Shaw, Inc., 127
Me. 172, 179, 142 A. 580 (1928); Hayden v. Russell, 119 Me. 38, 39-40, 109
A. 485 (1920). The past consideration rule, however, is not a rule about
temporal proximity, but rather a necessary connotation of the rule that the
benefits and detriments on both sides of a contract must be bargained for. See
infra ¶¶ 25-27; Restatement (Second) of Contracts §§ 71, 86 & cmt. a (Am. Law
Inst. 1981). When one party has already provided a gratuitous (i.e.,
13
unbargained-for) benefit, that benefit cannot be consideration for the
recipient’s subsequent promise to pay for it, whether five minutes or five years
after receiving the unanticipated benefit. When there is a bargain, however, the
fact that the parties’ performances are separated by some time does not
retroactively negate the initial bargain.
[¶21] As we set forth in greater detail below, the relevant time period for
determining whether Belanger’s transfer to Brad was consideration for Brad’s
2016 transfer to Belanger is 1977. See infra ¶ 27 & n.6. In other words, if in
1977 both Belanger and Brad considered that Belanger’s transfer of the
Prospect Street Property was “in exchange for” Brad’s transfer of the Camp—
whenever those transfers might take place—then Brad’s 2016 deed to Belanger
was supported by consideration for purposes of the bona fide purchaser
protections; Belanger was not required to provide any additional consideration
in 2016. Brad’s intention in 2016 is therefore irrelevant except to the extent
that it sheds any light on what his understanding was in 1977, and the trial
court erred in basing its consideration determination solely on its analysis of
Brad’s and Belanger’s actions and intentions in 2016.
[¶22] Furthermore, to the extent that the court also based its
determination of the consideration issue on its understanding that the 1977
14
Agreement was unenforceable pursuant to the Statute of Frauds, see 33 M.R.S.
§ 51(4)-(5) (2018), the court erred. There is no need to address the Statute of
Frauds or any potential exceptions to it, because Belanger is not trying to
enforce a contract. Section 78 of the Restatement (Second) of Contracts
provides that unenforceable promises may constitute consideration, e.g., for
purposes of rendering a party a bona fide purchaser for value. See also
Restatement (Second) of Contracts § 75 cmt. d & illus. 4-6. The enforceability
of any contract between Belanger and Brad has no bearing on whether
Belanger’s transfer of her own property—a transfer she indisputably made—
qualifies as consideration for Brad’s 2016 conveyance.
[¶23] If Brad had not deeded the Camp to Belanger, and unless some
exception applied, such as the part performance exception, the Statute of
Frauds might have barred her from enforcing a claim that she and Brad had a
contract that required him to transfer the property. See, e.g., Sullivan v. Porter,
2004 ME 134, ¶ 11, 861 A.2d 625. But Belanger is not trying to enforce a
contract; she is simply arguing, in effect, that when Brad deeded the Camp to
her he was doing so pursuant to a contract, and that therefore she is a bona fide
purchaser for purposes of Maine’s recording statute.
15
[¶24] Because neither Brad’s 2016 intention nor the Statute of Frauds
has any bearing on the issue of consideration, the trial court did not apply the
correct legal standard to resolve this issue, and we have no choice but to vacate
the judgment. See Christian Fellowship & Renewal Ctr., 2006 ME 44, ¶ 9, 896
A.2d 287. Furthermore, as we explain below, the stipulated record is
insufficient to allow us to determine—as a matter of law—whether Belanger’s
1978 transfer was consideration for Brad’s 2016 transfer. Because we must
remand this issue to the trial court, we take this opportunity to provide
guidance to the parties and the court.
[¶25] The parties’ stipulated statement of facts establishes that, in 1977,
Belanger and Brad “made an agreement to put each other’s names on their
separately owned properties, as joint tenants (the ‘1977 Agreement’).” Mutual
promises to convey property interests to one another may constitute sufficient
consideration for purposes of a contract or for the purpose of determining
whether someone is a bona fide purchaser.5 See Restatement (Second) of
5 There is essentially no case law—in Maine or any other jurisdiction—addressing any differences
between the meaning of “consideration” for purposes of contract enforceability and “consideration”
for purposes of a recording statute’s bona fide purchaser protections. Courts have, however, held
that the contract-law meaning of consideration does not map precisely onto the term’s meaning in
other contexts, such as the Internal Revenue Code. See, e.g., Bank of N.Y. v. United States, 526 F.2d
1012, 1015-18 (3d Cir. 1975) (“That [a decedent] may have been obliged under New Jersey [contract]
law to carry out her original intention . . . does not alter the nature of her original intention [for
purposes of the Internal Revenue Code].”). For purposes of this opinion, we assume that the
definitions are coextensive.
16
Contracts, § 75, cmt a. (“In modern times the enforcement of bargains is not
limited to those partly completed, but is extended to the wholly executory
exchange in which promise is exchanged for promise.”); see also Zamore v.
Whitten, 395 A.2d 435, 443 n.3 (Me. 1978) (“In a bilateral contract, one promise
is good consideration for another.”), overruled on other grounds by Bahre v.
Pearl, 595 A.2d 1027, 1035 (Me. 1991). In order “[t]o constitute consideration,”
however, “a performance or a return promise must be bargained for.”
Restatement (Second) of Contracts § 71(1). A “return promise is bargained for
if it is sought by the promisor in exchange for his promise and is given by the
promisee in exchange for that promise.” Id. § 71(2). The objectively manifested
intentions of both parties are relevant because it takes two to bargain. See id.
§ 71 cmt. b (“[I]t is not enough that the promise induces the conduct of the
promisee or that the conduct of the promisee induces the making of the
promise; both elements must be present, or there is no bargain.”); accord
Laflamme v. Hoffman, 148 Me. 444, 450-51, 95 A.2d 802 (1953).
[¶26] Inducing the other person’s promise need not be the primary or
substantial motive for the action constituting consideration (whether promise
or performance), see Restatement (Second) of Contracts § 81(1); likewise, a
promise induced by the promise constituting consideration need not be
17
primarily motivated by it, see id. § 81(2). Here, for instance, Belanger’s promise
to convey her property to Brad may constitute consideration for Brad’s 2016
deed even if the 1977 agreement was primarily motivated by Brad’s and
Belanger’s love and affection for each other.
[¶27] Thus, two facts must be found to be true in order for Brad’s 2016
deed to Belanger to have been supported by consideration: (1) Belanger must
have made her 1977 promise or her 1978 conveyance in exchange for Brad’s
promise to convey his property, and (2) Brad must have intended for his
reciprocal 1977 promise to convey his property to induce Belanger’s promise
to convey hers.6 Brad’s intent at that time may be discerned by evidence of his
statements and actions in 1977 as well as his actions related to that alleged
promise thereafter. If either Brad or Belanger viewed the 1977 agreement
exclusively as a mutual exchange of gifts, rather than as “bargained-for”
exchange (at least in part), then neither Belanger’s promise to convey her
property nor her performance of that promise in 1978 can constitute
6 Brad’s intention only in 1977 is relevant, because by the time of his 1978 promise, Belanger’s
performance was complete, and Brad could not have intended any promise he made after Belanger
conveyed her property to have induced her to convey the property. See Restatement (Second) of
Contracts § 86 (Am. Law Inst. 1981).
Belanger’s intention to induce Brad’s promise, by contrast, might be established either in 1977
or in 1978, because Brad made his two promises—his original 1977 promise and his revised 1978
promise—either contemporaneously with or after Belanger made her promise, so the “past
consideration” rule does not apply. Id.; see supra ¶¶ 20-21.
18
consideration for purposes of rendering her a bona fide purchaser of Brad’s
property.
[¶28] We recognize that whether the fact that mutual promises have
been made establishes, even presumptively, that each promise constitutes
consideration for the other is an unsettled question in Maine. Context matters:
the evidentiary weight of the simple fact that both parties have made promises
will vary depending on the parties’ relationship. See Restatement (Second) of
Contracts § 71 cmt. c. For instance, in a business setting, the fact that one party
promises to pay money and the other party promises to render a service is very
strong evidence of a “bargain.” In the context of marriage, family relationships,
and even friendship, however, the motives behind a mutual exchange are more
complex and more difficult to determine. The “gift or bargain” question that
bedevils courts interpreting a property transfer between family members does
not lend itself to a per se rule that reciprocity indicates a bargain.
[¶29] Accordingly, in several jurisdictions, the fact that spouses have
made mutual wills does not establish, per se, that each will was made in
consideration of the other. See, e.g., Reznik v. McKee, 534 P.2d 243, 254-55 (Kan.
1975); Curry v. Cotton, 191 N.E. 307, 310 (Ill. 1934) (noting, however, that
“where [a joint will] is one jointly executed by the husband and wife, while in
19
itself not conclusive evidence of a contract, it is a very material circumstance”
to the question of whether a contract exists).
[¶30] Here, the stipulated record does not establish as a matter of law
that Brad’s and Belanger’s mutual promises were either a quid pro quo (and
thus consideration for each other) or a matter of marital obligation or perceived
social propriety (and thus not consideration). For instance, the stipulated
record contains Belanger’s deposition testimony that Brad’s 2016 transfer was
“similar to when I put his name on my house [in 1978]. It made a couple. I
didn’t gain anything . . . when I put his name on my house, and he didn’t gain
anything when he put my name on his cottage.” (Emphasis added.) On the
other hand, the stipulated record states that “Belanger considered that her
1978 transfer of the Prospect Street property was in exchange for the transfer
of the 2016 Deed from Brad.”
[¶31] Furthermore, the parties’ use of the term “agreement” does not
resolve the question. Paragraph 22 of the Stipulated Statement of Facts states,
inter alia, that Brad “delivered a deed of the Camp to [Belanger] and himself as
joint tenants . . . consistent with the 1977 Agreement.” In this context, however,
the word “agreement” does not imply, by itself, that both promises are
supported by consideration. The Restatement defines “agreement” simply as
20
“a manifestation of mutual assent.” Restatement (Second) of Contracts § 3. The
comments to section 3 clarify that “[a]greement has in some respects a wider
meaning than contract, bargain or promise,” and that there exist some
“agreements which are not contracts, such as transactions where one party
makes a promise and the other gives something in exchange which is not
consideration.” Id. § 3 cmts. a, c. Spouses or friends may “agree” in a colloquial
sense to exchange gifts, but in many such exchanges there is no element, even
minor, of quid pro quo or bargain.
[¶32] As discussed above, the stipulated record simply does not permit
us to determine, as a matter of law, whether Brad and Belanger would have
made their mutual property transfers even if the other one did not—because
that was their understanding of their domestic partnership—or, instead,
whether each spouse did so because the other spouse did as well.
[¶33] On remand, the trial court must determine whether Brad’s promise
was made “in exchange for” Belanger’s promise. Restatement (Second) of
Contracts § 71(2). The court’s resolution of that issue—including its possible
conclusion that the stipulated record is insufficient to allow it to make such a
determination in the first instance, see Rose, 2015 ME 73, ¶¶ 7-8, 118 A.3d 220,
21
a possibility about which we do not currently opine—will determine how it
should proceed.7
The entry is:
The judgment on the 33 M.R.S.A. § 480 issue is
affirmed. The final judgment on the issue of
consideration is vacated and the case is
remanded for further proceedings consistent
with this opinion.
JABAR, J., concurring in part and dissenting in part.
[¶34] I respectfully concur in part and dissent in part. I agree with the
Court’s decision to vacate the judgment holding that Belanger failed to prove
that there was any consideration for the 1977 Agreement to convey each
other’s separately owned property into joint tenancy. See Court’s Opinion
¶¶ 24, 33. I also agree with the Court’s remand to address other unresolved
issues. However, I do not believe that we should remand to the trial court to
resolve the issue of consideration because I believe that the stipulated facts
establish as a matter of law that there was consideration for the 1977
Agreement wherein Brad and Belanger both agreed to convey all of their
individual properties into jointly owned properties.
7 Because Belanger’s appeal is not frivolous, we deny Yorke’s motion for sanctions. See M.R.
App. P. 13(f); Lincoln v. Burbank, 2016 ME 138, ¶ 46, 147 A.3d 1165.
22
[¶35] We review the court’s decision on a stipulated record de novo.
Mason v. City of Augusta, 2007 ME 101, ¶ 18, 927 A.2d 1146 (“Because the facts
are stipulated, we review de novo the legal issues presented to the [trial
court].”).
[¶36] The stipulated facts establish that Belanger and Brad entered into
an agreement wherein they agreed “to put each other’s names on their
separately owned properties as joint tenants (the ‘1977 Agreement’).” Mutual
promises to convey property interests to one another constitute consideration
for purposes of a contract or for the purpose of determining whether someone
is a bona fide purchaser. See Restatement (Second) of Contracts, § 71(1), (2)
(Am. Law Inst. 1981) (“To constitute consideration, a performance or a return
promise must be bargained for. . . . A performance or return promise is
bargained for if it is sought by the promisor in exchange for his promise and is
given by the promisee in exchange for that promise.”).
[¶37] This bedrock principle of contract law is a common thread seen
throughout our jurisprudence for more than a century. See First Nat’l Bank v.
Ware, 95 Me. 388, 398, 50 A. 24 (1901) (“mutual promises of . . . creditors to
one another [to partially forgive debt] constitute a sufficient consideration for
the promise of each.”); see also A.L. Brown Constr. Co. v. McGuire, 495 A.2d 794,
23
797 (Me. 1985) (“Mutual promises to exchange releases and settle claims are,
themselves, adequate consideration for a contract.”).
[¶38] The parties’ stipulated statement of facts states, “Soon after their
marriage, [Belanger] and Brad made an agreement to put each other’s names
on their separately owned properties, as joint tenants (the ‘1977 Agreement’).”
In addition, stipulated facts 5, 6, and 7 indicate that Belanger and Brad agreed
to create a mutual estate plan under which Belanger would receive everything
Brad owned if he predeceased her, and vice versa. The parties also stipulated
that, “During their 39 year marriage, Brad and [Belanger] named each other as
beneficiaries in their insurance, individual investments, and wills pursuant to
the estate plan.” Belanger also established Brad as joint owner of a vehicle and
her retirement account.
[¶39] In addition, Belanger and Brad made several conveyances of real
estate pursuant to the 1977 Agreement during their lifetimes. “In 1978,
[Belanger] conveyed her Prospect Street property in Bath to herself and Brad
as joint tenants . . . as part of the 1977 Agreement.” In 1982, Belanger and Brad
had property on Front Street in Bath conveyed to themselves in joint tenancy,
in “conformity with the 1977 Agreement.” Finally, in 2016, when Brad
conveyed the Camp to Belanger and himself as joint tenants, it was conveyed
24
“consistent with the 1977 Agreement.” These stipulated facts establish as a
matter of law that there was a mutual estate plan, a quid pro quo—not an
agreement to exchange gifts without any understanding of required reciprocity.
[¶40] Belanger and Brad’s agreement was much broader than Belanger’s
conveyance of her separately-owned Prospect Street property into joint
tenancy in exchange for Brad’s conveyance of his separately-owned camp into
joint tenancy. The 2016 deed of the Camp by Brad to himself and Belanger as
joint tenants was only one part of the “mutual estate plan.” The stipulated facts
indicate that Brad and Belanger characterized the transfer of the Camp as being
made pursuant to the 1977 Agreement. They both executed other documents
and conveyances consistent with this estate plan. They both had named each
other as beneficiaries on their insurance, investments, savings, wills and
personal property. These transactions were not merely an agreement “in a
colloquial sense to exchange gifts.” Court’s Opinion ¶ 31. These facts establish
as a matter of law that the 1977 Agreement was a bargained-for exchange.
[¶41] We should remand the matter to the trial court with the direction
that judgment be entered for Belanger on the issue of consideration.
25
Christopher E. Pazar, Esq., and William J. Kennedy, Esq. (orally), Drummond &
Drummond, LLP, Portland, for appellant Rebecca W. Belanger
Chris Neagle, Esq. (orally), Troubh Heisler, LLC, Portland, for appellee Lisa M.
Yorke
Business and Consumer Docket docket number CV-2017-56
FOR CLERK REFERENCE ONLY