Partition

Klawitter v Klawitter, 240 Wis 2d 685, 623 NW2d 169 (Wis Ct App 2000).

Facts: Elmer and Janet Klawitter divorced in 1983 but remained living together. In 1987, the two bought a five-acre "farmette" and lived there as joint tenants. The parties shared the land contract payments and other expenses relating to the land. Elmer and Janet filed separate income tax returns, but because Elmer reported the farm operations on his return, he was able to make several deductions related to the farm.

The relationship between the two deteriorated, and Janet left the residence. In October 1997, Janet commenced an action for partition. Elmer asked the court to grant him contribution from Janet for one-half of the expenses he had paid after Janet left the relationship. The trial court granted partition but denied Elmer's request for contribution. The court decided that Elmer's right to reimbursement was offset by Janet's equitable entitlement to a proportionate share of Elmer's use and occupancy of the property. Elmer appealed the court's decision to deny him reimbursement.

Holding: Affirmed. A circuit court is authorized, as a matter of equity, to order compensation by one party to the other when a partition does not equalize the position of the parties. WSA § 842.14(4). Elmer argued that just a partition of land would not make him equal with Janet because he had made numerous payments related to the property after Janet had left. However, the appellate court noted that although Elmer continued to make payments, he also continued to enjoy the use of the property. Janet no longer made payments, but she no longer used the property either. An allowance for use and occupancy to the co-tenant in possession should not be made unless the equities of the particular case require it. The appellate court upheld the trial courts equitable determination that the value of Elmer's use and occupancy should be offset against the value of his payments in this case.

EDITOR'S NOTE: Under Illinois law, where a co-tenant has enjoyed the use and occupation of the premises, and he or she makes a claim for improvements in a partition proceeding, the value of the use and occupation may equitably be set off against the claim for improvements. Cooter v Dearborn, 115 Ill 509, 4 NE 388 (Ill 1886). Because this holding by the Illinois Supreme Court mirrors the facts of this case, an Illinois court would likely come to the same conclusion as the Wisconsin court.

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