You’re Ouster Here

Whippie v. O’Connor, 2011 VT 97 (mem.).

Marriage brings many benefits to the couples that take the plunge.  Some of these benefits are obvious, but many are not.  One of the biggest benefits is that marriage requires the parties to be fair to each other when they divorce or split up.  Family law is different from civil law because family relationships are different from friendships, business partnerships, and nearly every other relationship we form in our lives. 

In the case of Whippie and O’Connor, marriage never seemed to enter the picture, but over the course of ten years and two children, the two entered into a relationship that, while maybe not exactly a marriage, had many of the same features.  The problem is that when Plaintiff and Defendant decided to split, they were outside of family court trying to divide their assets in civil court where prevailing standards and processes do not necessarily favor equity or equality of interests. 

Parties actually started out in family court, which had jurisdiction over the custody issues surrounding the children.  As part of its final order, the family court awarded custody of the children to Defendant along with possession of the house.  Shortly thereafter, Defendant sent Plaintiff a no-trespass letter and consistently refused her access to the house.

The parties then moved across the hall to the civil division where in 2005 Plaintiff filed a partition action to have her interests in the house acknowledged and then to have the house sold with profits to be distributed.  Defendant fought the action using his judgment from the family court, but he eventually lost. 

Defendant lost for several reasons.  First, the family court’s award of possession was not exclusive and did not foreclose Plaintiff’s rights in the property because she was a tenant in common with equal rights to the property.  Because this was not a divorce, fully under the jurisdiction of the family court, its ability to adjudicate between Plaintiff and Defendant was necessarily limited. 

This led to the second basis of Defendant’s loss.  Because Plaintiff had an interest in the property, Defendants actions barring her from the house constituted ouster.  Ouster occurs when one tenant prevents another tenant from exercising his or her ownership interests.  It is a disfavored action, and it meant that Defendant was liable to Plaintiff for damages caused by his ouster.   

Nothing ground breaking here, and the SCOV affirmed this conclusion in its first review of the case in 2010.  On remand, the SCOV instructed the trial court conduct an accounting of the parties’ interest.  The trial court determined that Plaintiff was entitled to 61% of the value of the house and $19,000 in rent (damages) for the period of the ouster. 

Defendant appeals this calculation on two theories.  First, he argues that the trial court failed to hold an evidentiary hearing on these issues on remand.  The SCOV makes quick work of this noting that the record was complete and neither its remand nor the applicable rules required such a hearing. 

The second issue proves more difficult for the SCOV.  Defendant argues that when Plaintiff left the property, she stopped paying her share of the cost, including tax, maintenance fees, and upkeep expenses.  Therefore, any amount of money due to Plaintiff should allow for a deduction for these costs that Plaintiff alone had to bear.  The trial court disagreed, citing to a recent SCOV case, Massey v. Hrostek, 2009 VT 70 refused to award Defendant any offsets. 

In taking up this issue, the SCOV notes that Plaintiff and the trial court are correct that the language of Massey appears to limit the courts’ ability to require an ousted tenant to pay for utilities and costs accumulated during the party’s ouster.  The SCOV finds this holding, however,  to be inconsistent with the vast majority jurisdictions and even prior Vermont decisions, which all go against Massey’s restrictive language.  Recognizing a mistake in Massey, the SCOV overrules Masssey and clarifies that its provisions have allowed and always will allow the remaining tenant a credit against any amounts owed to the ousted tenant for reasonable maintenance fees that the property incurred, but which the ousted tenant never contributed to, including, but not limited to, mortgage payments, property taxes, sewer charges, and reasonable improvements. 

Under this revised thinking, Defendant is entitled to offset the amounts due to Plaintiff, and the SCOV remands the entire case back to the trial court for further findings consistent with the new ruling. 

And so the process continues.  At this point, the parties should probably work together to figure out their mutual liabilities and expenses and make a plan to cut checks, which will put an end to the process.


  1. I understand and appreciate the comments and clarifications as to how the court applied the law in this case. However, since you are only privy to the published opinions of the SCOV, your agreement with the court is not qualified. The Plaintiff did not stop paying when the court removed her from the property, she never contributed as she was obligated to do. Secondly, the issue of ouster was an eleventh hour defense the Plaintiff used to excuse her lack of contributions. And the SCOV opinion does not reflect the reasons the Defendant needed to protect himself and his children from the Plaintiff. You maybe interested to know that the Defendant has tried on several occasions to settle this matter out of court. But when he requests any exchange be made in writing both the free legal aid attorney and the plaintiff back off.


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