Equity: Lower Court Did Not Err In Equitably Allocating Partition Fees/Costs 50-50 Where One Side Got A Total In Kind Partition And Other Parties Did Not

 

Allocation Doesn’t Necessarily Have to be Proportional in Nature.

     Cason v. Cason, Case No. D059676 (4th Dist., Div. 1 Apr. 22, 2013) (unpublished) deals with allocation of attorney’s fees and costs in a partition case. The germane statute, CCP § 874.040, has a double-barrel measure--the lower court shall apportion partition costs among the parties “in proportion to their interests or make such other apportionment as may be equitable.” Equity prevailed in Cason.

     Without boring you (and when do we do that), plaintiff obtained a partition in kind for 40 acres--a complete partition--but defendants only obtained an incomplete, aggregate division for remaining acreage because zoning ordinances. Based on this “inequity,” the trial court ordered that fees/costs be split 50-50, rather than 25-75 based on property ownership interests.

     Plaintiff appealed, but to no avail. Equity prevailed because defendants were left with 119 acres that could not be divided in kind because of county acreage requirements. Because this was a tangible value difference in plaintiff’s favor, partition apportionment affirmed on appeal.