Focus On

Family Law - Marital property - Equalization or division - Partition and sale of real property - Deductions from proceeds

Thursday, November 17, 2016 @ 7:00 PM  

Appeal by the wife from a decision ordering her to pay 25 per cent of the real estate commission payable on the sale of the former marital home. The parties had entered into a settlement agreement that was incorporated into a consent order which was silent on payment of real estate commission. Pursuant to the order, the wife was entitled to a specified lump sum payment for her interest in the marital home payable from the net sale proceeds. While the wife claimed she was not responsible for payment of any commission, the husband argued that she was liable for one-half of the commission payable.

HELD: Appeal allowed. The judge built an additional term into the contract providing for cost sharing of the commission. The wife’s obligation for payment of the commission was not contained in the bargain the parties struck and thus was not in the consent order, and there was not a common intention that would allow the judge to imply such a term to effectively rectify the contract. There was nothing ambiguous in the phrase “net sale proceeds” in the consent order. There was no term in the agreement requiring the wife to pay commission, whereas there was an express term requiring her to pay her share of other costs. An implied term was not required in order to give efficacy to the agreement or to avoid an absurd result.