MELANIE WELLS v. RICHARD COLEMAN

In 2005, after a twenty-six year marriage, Dr. Richard Coleman initiated proceedings to divorce Melanie Wells. As part of their eventual divorce settlement, Coleman paid Wells for her interest in their Martha's Vineyard property and she deeded her interest in the property to him. Coleman soon after married a woman thirty-seven years his junior, causing a rift with his two daughters. In 2013, Coleman learned that his estranged older daughter was getting married, and he feared he would not be invited to the wedding. About this time, he contacted Wells and, despite his having recently remarried, stated his desire to rekindle their relationship, reunite their family, divorce his new wife, and "spend the rest of my life with you." While his new wife was away visiting relatives in Europe, he began divorce proceedings against her, he and Wells began living together again at the Martha's Vineyard property that Wells had deeded to him as part of the divorce, and they both participated in planning their daughter's wedding. After a number of weeks together, Coleman reconveyed to Wells an undivided half-interest in the Martha's Vineyard property, and a few weeks later they together attended their daughter's wedding at the property. However, their rekindled relationship was short-lived: approximately four months after their reunion, and less than three months after their daughter's wedding, Coleman decided to leave Wells for a second time, and returned to his current wife. Following Wells' refusal of Coleman's request to again deed her interest in the Martha's Vineyard property back to him, Coleman unsuccessfully sought relief from the California court that had overseen their divorce.

Wells now brings a claim to declare her interest in the property valid, and Coleman asserts a defense, by way of counterclaim, of undue influence and breach of a fiduciary duty, seeking to rescind the deed by which he reconveyed an interest in the Martha's Vineyard property to Wells. He claims that at the time of the reconveyance, his physical pain resulting from complications from recent back surgery, weakened emotional condition, side effects of prescribed medications, and fear of being alone created a mood disorder marked by delusions and psychotic features compelling him to do anything that Wells requested. He alleges that Wells knowingly took advantage of his weakened condition by forcing him to convey the property. He also brings claims for breach of contract and promissory estoppel, alleging that Wells promised to convey her interest back to him if the renewal of their relationship failed.

The case was tried before me over six days in September, 2016, with testimony from four fact witnesses and three expert witnesses. Following the filing of post-trial submissions by both parties on January 6, 2017, I took the matter under advisement. For the reasons stated below, I find and rule that Wells is entitled to a judgment declaring the validity of her undivided one-half ownership as joint tenant. Coleman has failed to meet his burden on any of his counterclaims or defenses, and title to the Martha's Vineyard property remains in both Wells and Coleman as joint tenants with rights of survivorship.

FACTS

Based on the facts stipulated by the parties, the documentary and testimonial evidence admitted at trial, and my assessment as the trier of fact of the credibility, weight, and inferences reasonably to be drawn from the evidence admitted at trial, I make factual findings as follows:

1. Defendant Dr. Richard Coleman is a well-educated and successful professional and businessman. He received his doctorate in clinical psychology in 1979. Coleman became the Director of the Stanford University Sleep Disorder Center, where he remained until 1984. [Note 1] He then founded Coleman Consulting Group, which advised companies on how to operate twenty-four hours a day. [Note 2] In 1999, Coleman sold Coleman Consulting Group to investors, and continued working there until 2002. In 2006, Coleman founded Coleman Analytics, Inc., a business providing statistical analysis for professional hockey teams in the National Hockey League. From 2006 to 2013 he generally provided statistical analysis for three to five NHL teams in a given year. [Note 3] Coleman is the sole employee of Coleman Analytics. [Note 4]

2. Plaintiff Melanie Wells received her master's degree in social work in 1980. Wells and Coleman met in 1975 at a psychology conference, and were married in 1979. They had a daughter in 1980, and another daughter in 1983. Wells also had a son from a previous marriage. [Note 5]

3. During most of the years of the marriage, from about 1984 until the marriage ended, Coleman was the primary breadwinner. [Note 6]

4. Coleman was in charge of the parties' financial affairs during the marriage. [Note 7]

5. While married, Coleman and Wells purchased twelve properties, some for their own residential or vacation use and some for the purposes of investment. [Note 8] Some were purchased for cash, while others were financed. The cash for these purchases came from the parties' joint bank account. Both Wells and Coleman participated in selecting these properties, and Coleman would manage the details of completing the purchase. [Note 9] The properties purchased were in locations including Palo Alto, Marin County, San Francisco and Palm Springs in California, and on Martha's Vineyard in Chilmark and Aquinnah. [Note 10]

6. In 1997, they purchased 60 and 68 Meeting House Road in Chilmark on Martha's Vineyard (the "Chilmark property" or the "Martha's Vineyard property") for approximately $2,350,000. These two parcels together consist of approximately thirty acres, and contain main and guest residences. [Note 11] The property has access to a private beach. They owned this property jointly. [Note 12] They generally spent two months of the summer at the property.

7. In the mid-1990's, Wells and Coleman began an "open marriage" in which Wells could pursue an extra-marital relationship with a particular individual, and Coleman was free to have extra-marital relationships with other women when traveling on business. [Note 13] Wells eventually ended her one relationship, and Coleman continued to both date other women and engage the services of prostitutes. [Note 14] This arrangement put considerable strain on the marriage. On or about November 20, 2005, Coleman told Wells that he wanted a divorce. [Note 15] He told Wells that he was looking online for a younger woman, and showed her an online list of women that he was considering. [Note 16] Coleman subsequently initiated divorce proceedings, though Wells did not wish to get divorced. [Note 17] The divorce was bitter and lengthy, taking several years and costing between $1.5 million and $2 million in legal fees and expenses. [Note 18]

8. The division of marital property was completed in 2008. [Note 19] The divorce settlement provided that the parties would attempt to sell the Chilmark property, and split the proceeds. However, they were unable to find a buyer for two years. In 2010, they entered into a stipulation approved by order of the California Superior Court under which Coleman would buy out Wells' interest in the property. [Note 20] Wells conveyed her interest in the property to Coleman in exchange for a cash payment of $915,800 and relief from her obligations under a first mortgage and an equity line of credit secured by a second mortgage. [Note 21]

9. In 2010, Coleman married Ineta Pelne. Coleman and Pelne met on an internet dating service. [Note 22] Pelne was twenty-three at the time of their marriage, and Coleman was sixty. Coleman's daughters were unhappy about the age difference between Coleman and Pelne, and this contributed to the deterioration in the relationship between Coleman and his daughters. [Note 23]

10. As a result of the failed marriage, divorce, and subsequent remarriage, Coleman's relationship with his daughters deteriorated to the point of estrangement. [Note 24] His older daughter changed her last name from Coleman to Wells. [Note 25]

11. After the completion of the division of property in 2008, Wells and Coleman did not communicate other than the exchange of one or two e-mails until Coleman contacted Wells in May, 2013. [Note 26]

12. In 2012, Coleman began experiencing back pain. On December 11, 2012, he underwent spinal fusion surgery. [Note 27]

13. After the surgery, Coleman began experiencing coldness and numbness in his feet. His surgeon diagnosed this in January, 2013 as a side effect of the surgery called "peripheral neuropathy." [Note 28] Coleman was advised that it would gradually abate. [Note 29]

14. After the surgery, Coleman began taking the medications Percoset and Ambien. He stopped taking Percoset on January 14, 2013. [Note 30]

15. In January, 2013, Coleman was prescribed the drug Lyrica to treat his peripheral neuropathy. Coleman had suicidal thoughts as a result of the Lyrica. He stopped taking Lyrica in March 2013, and did not experience suicidal thoughts after that point. [Note 31]

16. At the suggestion of his stepson (Wells' son, with whom he still had a relationship), Coleman received an epidural on February 14, 2013. [Note 32]

17. Coleman, while living in Boca Raton, Florida with Pelne, began treating with physical therapy, acupuncture, and aqua-therapy to recover from his surgery. [Note 33]

18. The pain and numbness in his foot lessened in the first few months of 2013. While he still often felt numbness in some toes, he felt no numbness in others, and the pain in his foot was significantly reduced or eliminated. [Note 34]

19. Coleman was able to work during this period and did so. [Note 35] Coleman's work typically consisted of drafting and e-mailing a statistical report to a client team prior to a hockey game in which that client was playing, and monitoring injury reports. As Coleman had four hockey teams as clients at the time, he was working seven days a week. He continued to work until the hockey season ended on June 25, 2013. [Note 36]

20. During this period, Coleman also applied for and received a $50,000.00 tax credit associated with his donation of a conservation restriction and a trail easement to the Town of Chilmark. Coleman donated a trail easement by a trail easement agreement dated December 9, 2011, and recorded with the Dukes County Registry of Deeds on January 3, 2013, in Book 1304, Page 588, and he also donated a conservation restriction executed on October 15, 2012 and recorded on December 27, 2012, in Book 1303, Page 84; in connection with these conveyances, Coleman applied for and was awarded a $50,000.00 Conservation Land Tax Credit for 2012, on April 8, 2013. [Note 37]

21. On February 24, 2013, Coleman visited a hospital emergency room after feeling tingling in his arm, and fearing a heart attack. This was a false alarm, as the sensation was the result of a pinched nerve. [Note 38] Coleman attributes to this hospital visit, and his sighting in the emergency room of an old man sitting alone and unattended, the genesis of a fear of being alone, dying without "approval or blessing" of his two daughters and his ex-wife Melanie, and his desire to reunite with Wells and his daughters. [Note 39]

22. Coleman denied feeling any anxiety or depression in all subsequent appointments with his medical providers. [Note 40]

23. On April 8, 2013, Coleman began receiving therapy from Dr. Neviana Nenov, a psychiatrist. He continued to receive treatment from Dr. Nenov on a weekly basis either remotely or in person until February 27, 2014. [Note 41]

24. Coleman began taking the anti-anxiety medication Xanax in February, 2013. By May, he was taking Xanax only sporadically. [Note 42] In May, he began taking the medication Neurontin to treat both anxiety and neuropathy.

25. During his sessions with Dr. Nenov in April and May, 2013, Coleman expressed guilt and regret over his behavior in his first marriage, and communicated a desire to reunite with Wells and reconnect with his daughters. [Note 43] Coleman began to plan ways to reunite with Wells. [Note 44]

26. Pelne was planning to travel to Europe from June through July to attend a wedding and visit her family, with the possibility that Coleman would join her for August. [Note 45]

27. Coleman arranged for Samantha Burns to live with him during this period, to facilitate his plan to be alone as little as possible while he was on Martha's Vineyard for the summer and while his wife was in Europe. [Note 46] His sister and brother and their spouses also offered to stay with him for most of July. [Note 47]

28. On May 23, 2013, Coleman arrived on Martha's Vineyard with his wife Pelne. [Note 48] On May 26, Coleman encountered Ruby Iantosca, a friend of Wells, in Chilmark. She told Coleman that his elder daughter was getting married. Coleman had not previously known this, and had not at this time received an invitation. Coleman then told Ruby that he wanted to get back together with Wells. [Note 49] The next day Coleman found an E-Vite invitation to the wedding in his e-mail spam folder.

29. In late May, 2013, Coleman told Samantha Burns, his massage therapist and sometime confidant, that marrying Pelne had been a mistake, and that he wanted to get back together with Wells. [Note 50]

30. On May 29, Coleman contacted Wells via e-mail. [Note 51]

31. Coleman and Wells began e-mailing each other about the wedding. Coleman offered to pay for certain wedding expenses, such as the reception and the wedding dress. [Note 52]

32. On June 1, 2013, Coleman made a "romantic overture" to Wells via text message. [Note 53] This was well-received, and they continued to express strong romantic feelings for each other via e-mail over the next few days. [Note 54]

33. On June 2 or 3, 2013, Coleman attended a Chicago Blackhawks hockey game in Chicago with Pelne.

34. On June 4, 2013, Coleman called Wells to discuss getting back together. [Note 55] This was the first of a number of telephone calls between the two.

35. During one of these calls, Wells asked Coleman if he would reconvey to her the ownership share in the Chilmark property that she possessed during their marriage. [Note 56]

36. On June 5, 2013, Coleman and Pelne traveled to New York together, and Pelne then left for Europe. [Note 57] Coleman did not tell Pelne that he had been in contact with Wells, and did not tell her that he intended to leave her for Wells. [Note 58]

37. On June 4, 2013, Coleman e-mailed Wells that, "I am getting a divorce to spend the rest of my life with you." On June 8, 2013 Coleman e-mailed Wells: "I wanted you to know that I have left Ineta and am getting a divorce." [Note 59] Coleman began signing documents to initiate the divorce on this day. [Note 60] He did this on his own initiative, and was not forced by Wells to do so.

38. On June 11, 2013, Coleman flew to Pittsburgh, where Wells was living before a planned move to California, to meet Wells. He undertook this travel by himself. He stayed with her for three nights. [Note 61]

39. While in Pittsburgh, Coleman and Wells attended a dinner with Wells' son, his wife, and his children. [Note 62]

40. On June 14, 2013, Wells and Coleman traveled to Martha's Vineyard together to stay at the Chilmark property that is the subject of this action. Coleman also filed a petition in Florida to divorce Pelne on this day.

41. On June 15, 2013, Wells and Coleman had dinner with Wells' friend Ruby Iantosca and her husband. [Note 63]

42. On or about June 15 or 16, 2013, while they were at the house in Chilmark, Wells asked Coleman if she could "go back on the deed" for the Martha's Vineyard property. Her testimony, which I credit, is that Coleman expressed happiness at the idea, that she intended her request as way to show their daughters that they were really getting back together, and at the time she made the request she had the intention that they would remarry. Coleman's recollection of this conversation, which Wells vehemently denies, is that Wells demanded that he put her name back on the deed or "I'm out of here". [Note 64] As will be discussed more fully below, I credit Wells' account of this exchange, and I do not credit Coleman's.

43. The parties similarly have different recollections of a discussion about a change in Coleman's will, with Wells recalling that he told her, unbidden, that he was changing his will to remove Pelne and put Wells back in, and Coleman recalling that Wells demanded that he put her back in the will and back on other financial accounts or she would leave him. He testified that he did as she asked because he was fearful that if he did not comply, she would leave him and "I'm going to end up alone." [Note 65] As with the testimony regarding the deed, I credit Wells' testimony and I do not credit Coleman's.

44. On June 17, 2013, Coleman, by e-mail, contacted Geoghan Coogan, a local attorney who had several years earlier drafted the deed by which Wells was removed from ownership of the Chilmark property as part of the divorce agreement, and who was representing Coleman with respect to his efforts to acquire the Conservation Land Tax Credit. Coleman informed Coogan that he wanted to put Wells back on the deed and also informed him that he had a new will that needed to be witnessed. [Note 66]

45. Also on June 17, 2013, Coleman and Wells traveled to Boston for three nights to attend the National Hockey League Stanley Cup finals between the Boston Bruins and the Chicago Blackhawks, because Coleman was providing the Blackhawks with statistical analysis. During the games, Wells and Coleman sat separately – Coleman sat in the press box, and purchased a ticket for Wells to sit in the stands. [Note 67]

46. On or about June 18, 2013, between games, Wells and Coleman traveled to Stamford, Connecticut, Coleman's home town, to look at apartments with Coleman's sister and her husband. [Note 68] Wells suggested that they all live together. [Note 69]

47. On June 24, 2013, Coleman signed a new will at Attorney Coogan's office, bequeathing property to Wells. Wells was not present when he signed the will. [Note 70] Coleman changed the beneficiary of his retirement plan from Pelne to Wells. [Note 71] He attempted unsuccessfully to do the same for his investment accounts. [Note 72] I find that he undertook to make these changes on his own initiative. [Note 73] Coleman also named Wells as a beneficiary of his life insurance policy. [Note 74] I find that Wells did not ask him to do this, and was not aware of this until Coleman left her a letter from the insurance company confirming that the insurance company had made this change at Coleman's request.

48. On June 25, 2013, Coleman and Wells traveled again to Boston for the final game of the Stanley Cup finals. After the Blackhawks' victory, Wells and Coleman celebrated on the ice with the team, and held up the Stanley Cup together. [Note 75] While they were on the ice, Coleman's phone alerted him to a message from Pelne, his present wife. He told Wells that he was still keeping in touch with Pelne because he just wanted to keep Pelne calm through the divorce. [Note 76]

49. On June 26, 2013, Coleman again contacted Attorney Coogan via e-mail and asked him if the deed was ready for execution. Coogan, in a response, asked Coleman if he and Wells were getting married again, because he wanted to determine whether the conveyance would be exempt from a Land Bank fee. Coleman responded by e-mail, saying, "We are getting back together right now and plan to get married in the near future. How do we avoid the fee and how much is it?" Coogan responded that they could be put on the deed as joint tenants, explained the difference between a joint tenancy and a tenancy in common, and asked Coleman how he wished to take title. Coleman opted for a joint tenancy: "So good no taxes. Joint tenants it is." [Note 77] I do not credit Coleman's suggestion that he made this choice with no thought, little understanding, and under pressure from Wells. [Note 78] Furthermore, there was no evidence that Wells participated in this decision as to how to take title, that Coleman discussed the question of title with her, that she was present with Coleman when he had this e-mail exchange with Coogan, or that she was even aware of this exchange at any time.

50. On June 27, 2013, Coleman and Wells went to Coogan's office, and in the presence of the receptionist, who was a notary public, and Wells, Coleman signed a deed conveying the Chilmark property to himself and Wells as joint tenants. [Note 79] The deed, which conveyed both registered and unregistered land, was recorded on June 28, 2013 with the Dukes County Registry of Deeds in Book 1322, Page 280, and with the Land Court District of the Registry in Book 73, Page 265 and was noted on Certificate of Title No. 13544.

51. Upon leaving Coogan's office, Coleman told Wells, "This is my gift to you." [Note 80]

52. On three subsequent occasions, Wells told Coleman that she thought that perhaps she should "go off the deed." Each time, Coleman told her not to. [Note 81] None of these offers was before the conveyance, none of them was an offer to go off the deed if the reconciliation between them did not work out, and I do not credit Coleman's argument, or any testimony to the effect that Coleman relied on any such offer in making the conveyance.

53. In July, 2013 Wells and Coleman continued to reside at the property in Chilmark.

54. On July 13, 2013, Wells and Coleman attended their daughter's wedding, which was held at the Chilmark property. Coleman gave a toast at the wedding. [Note 82]

55. During July, Coleman was in the process of negotiating contracts with a number of hockey teams. [Note 83] Wells and Coleman attended dinners and other social engagements during this period, [Note 84] they visited Wells' son in Pittsburgh in August, and they attended Yom Kippur services together in September. [Note 85]

56. By September 17, 2013, Coleman was dissatisfied with continuing difficulties in his relationship with his older daughter, and he was unhappy with the lack of intimacy between him and Wells. [Note 86]

57. September 26 and 27, Coleman and Wells were in Austin, Texas to visit their younger daughter. [Note 87] While there, Coleman "realized I never loved anyone the way I've loved Inetta [sic]." By the following Monday, September 30, 2013, he had decided he would leave Wells again and get back together with Pelne. [Note 88]

58. After visiting their daughter in Texas, on September 28, Coleman and Wells traveled to her condominium in Rancho Mirage, California. Notwithstanding that he had already made the decision to leave Wells for Pelne, he and Wells bought two bicycles so they could bike together, and he ordered and set up a printer in Wells' condominium unit after Wells suggested that he set up an office in a particular part of her unit. [Note 89]

59. The short-lived reconciliation between Coleman and Wells came to an end on October 1, 2013. Coleman testified that the immediate reason for the sudden end of the relationship was Wells bringing to his attention a tweet from Ineta Pelne in which Pelne states that she still loves Coleman and is willing to take him back. According to Coleman, Wells told him he should go back to Pelne, and in the space of thirty minutes he made the decision to leave, packed his bags and left. Wells' account of the morning of October 1 is that when they woke up, Coleman informed her that he was leaving and planned to go back to Pelne because she was younger and more sexually compliant. Wells agrees that a tweet from Pelne was involved, but testified that the tweet came up after Coleman told Wells he was leaving, and that the tweet was available because Coleman was following Pelne on Twitter. I credit Wells' account of this episode, and I do not credit Coleman's account. Coleman's account, among other reasons, is inconsistent with the explicit statements he made to his therapist that he had already made the decision to leave Wells several days earlier while they were still in Texas visiting their daughter. [Note 90]

60. Coleman did not feel guilt about leaving Wells for a second time. [Note 91]

61. On October 18, 2013, Coleman sent Wells an e-mail in which he suggested that his payment of various expenses during the previous summer, including paying for their daughter's wedding, was consideration for her promise (which I find she did not make) to take her name off the deed for the Chilmark property, presumably if the reconciliation did not work out. He asked her to relinquish her interest in the Chilmark property. In return, he offered to pay her son's mortgage for three years, and allow her to occupy the Chilmark house each July for the next three years for $1.00. He attached an agreement with those terms for her to sign, and told her, "This offer will expire at 5pm est. on October 25, 2013." [Note 92] Wells did not accept this offer.

62. On February 19, 2014, Coleman filed an action in the Family Division of the California Superior Court requesting that the court enforce the stipulation of settlement agreement reached by the parties in 2010 by ordering Wells to convey her interest in the Chilmark property back to Coleman. This action claimed that after Coleman had complied with all of the conditions of the order, Wells had deeded him her interest in the property as required under the stipulation, but based on his mental condition and the undue influence of Wells, the property again came to be owned jointly; he thus requested that the court again restore the prior situation envisioned by their original stipulation that he have sole ownership of the property. Although Coleman was unsuccessful in his attempt to re-open the California divorce action to get back sole ownership of the Chilmark property, Wells subsequently filed the present action seeking a declaration of the validity of her title.

DISCUSSION

Plaintiff Melanie Wells filed this action on March 27, 2014 for declaratory judgment (Count One) and to try title (Count Two). She seeks a declaration that defendant Richard Coleman deeded to her a joint interest in the Chilmark property through a valid gift, and she seeks to enjoin him from making any adverse claim against her ownership of this interest. Coleman filed a counterclaim on May 2, 2014, and an amended counterclaim on June 27, 2014, [Note 93] alleging undue influence (Count One), breach of contract and promissory estoppel (Count Two), breach of a fiduciary relationship (Count Three), breach of a confidential relationship (Count Four), contribution (Count Five), and constructive trust (Count Six).

Try Title and Declaratory Judgment

Wells has asserted an action to try title against Coleman's adverse claims, as well as a claim for declaratory judgment. "[A] try title action is a creature of ancient provenance through which someone in possession of property can seek to establish that his or her rights to the property are superior to those of other named parties." Bank of N.Y. Mellon Corp. v. Wain, 85 Mass. App. Ct. 498 , 504–505 (2014). Wells' request for declaratory judgment likewise seeks a declaration that her interest in the property is valid as against the adverse claims of Coleman. These two causes of action are functionally duplicative; indeed, the form of declaratory relief requested by Wells serves as a modern replacement for the older and more cumbersome try title procedure. See Bevilacqua v. Rodriguez, 460 Mass. 762 , 766 n.3 (2011) ("The try title statute may now be something of an anachronism when it is considered that modern statutes are far more flexible than the common-law writ, see G. L. c. 237; that Massachusetts courts are now vested with equity jurisdiction, see, e.g., G. L. c. 185, § 1(k); and that declaratory judgment is now available to litigants in this Commonwealth, see G. L. c. 231A inserted by St. 1945, c. 582, § 1."). Thus, there is no need to address what is essentially plaintiffs' single claim by unnecessarily employing the analytical framework required in a try title action, when precisely the same result may be achieved by considering only the claim for declaratory judgment.

Turning thus to the plaintiff's claim for declaratory judgment, plaintiff seeks a declaration that her interest obtained through the June 27, 2013 deed is valid; as she has named only Coleman as a defendant in this action, she essentially asks the court to find her claim to this joint interest superior to any advanced by Coleman. Whether this is indeed so is determined solely by the validity of Coleman's counterclaims seeking to either void the deed or obtain specific performance requiring a conveyance of her interest; it is accordingly to these counterclaims that the court now turns to dispose of both Wells' and Coleman's respective claims.

Breach of Fiduciary Relationship/Breach of Confidential Relationship

Coleman claims that Wells owed him a duty as a fiduciary due to their divorce agreement, and a duty as a participant in a confidential relationship. "The court may impose a constructive trust where one acquires an interest in property in breach of a legal duty to one who has granted that interest." Maffei v. Roman Catholic Archbishop, 449 Mass. 235 , 247 (2007). This legal duty may be a traditional fiduciary duty, but may also be "a duty arising from a relationship of ‘trust and confidence' that is not a fiduciary relationship established as a matter of law, such as a relationship in which one party confides confidential information to one who then uses that information for his own benefit and to the declarant's harm." Id.

There was no fiduciary relationship between the parties in existence at the time of the conveyance as a result of the separation agreement. Massachusetts has recognized that spouses who enter into separation agreements stand as fiduciaries to each other with regard to the performance of their obligations under that contract. See Krapf v. Krapf, 439 Mass. 97 , 103 (2003). However, this principle was recognized in the context of former spouses who still have outstanding obligations under the agreement. See id. Entrance into a separation agreement does not forever bind the parties as fiduciaries even long after their obligations have been completely fulfilled. Here, the division of property under the divorce agreement was completed in 2010 when, after the parties failed to sell the Chilmark property, Wells deeded her interest in the property to Coleman in consideration of his payment of $915,800 and a discharge of her mortgage obligations. This was three years before the conveyance at issue in this case. Neither Coleman nor Wells owed any financial obligation to the other in 2013; without any remaining obligations, they did not stand as fiduciaries to each other merely by the fact of the execution of this past, completed agreement.

Nor was there a duty created by the placement of trust and confidence in another. "Such a relationship does not arise merely by reason of family ties" but rather "may be found on evidence indicating that one person is in fact dependent on another's judgment in business affairs or property matters." Markell v. Sidney B. Pfeifer Found., Inc., 9 Mass. App. Ct. 412 , 444 (1980). See also Cleary v. Cleary, 427 Mass. 286 (1998) ("Ordinarily, family relations do not suffice to create a fiduciary relationship that heightens scrutiny for fraud or undue influence…Of course, these relations can become fiduciary if the decedent was dependent on the beneficiary in financial affairs."). "Mere respect for the judgment of another or trust in his character" is not sufficient to show a confidential relationship. See Comstock v. Livingston, 210 Mass. 581 , 584 (1912). The courts have found a confidential relationship equivalent to a fiduciary relationship where one member of an unmarried couple was less educated, less experienced, and relied on the other over a long period in important matters. See Sullivan v. Rooney, 404 Mass. 160 , 163 (1989).

While Wells and Coleman maintained a close relationship for a short period of time in the spring and summer of 2013, this is not sufficient to show that he placed his trust and confidence in her with regards to property or financial matters so as to create a duty. Coleman during this period did not exhibit the inexperience and dependence characteristic in other recognized confidential relationships. See, e.g., Sullivan v. Rooney, 404 Mass. 160 , 163 (1989); Broomfield v. Kosow, 349 Mass. 749 , 757 (1965) (finding that a confidential relationship existed where the parties maintained a close business relationship and friendship, and one party who was "untutored in construction costs and indeed in much of the business which he transacted, trusted and confided" in the other). See also Becker v. Becker, 12 LCR 149 , 151 (Mass. Land Ct. 2004) (Scheier, J.) (declining to find confidential relationship where plaintiff "for many years owned and operated his own business, has known what his expenses were, and also has known to whom he owed money", and maintained control and judgment over his affairs). Quite the contrary, I find and rule that Coleman, if anything, was a sophisticated and experienced businessman who remained at all relevant times in full control of his own financial affairs, and possessed not only substantial general business acumen but significant experience in real estate conveyancing in particular. Even at the time he claims he was dependent on Wells, he demonstrated a knowledge of and interest in the transaction he claims he had no control over that belies his claim. He corresponded with his local attorney about the tax implications of the proposed transaction, and he made a considered choice about how to accept title. About the same time he was completing a sophisticated transaction that netted him a $50,000 tax credit. Throughout this period, he likewise continued to individually operate his own successful business providing sophisticated statistical analysis to professional hockey teams, including the winner of that year's NHL Stanley Cup. All of this was accomplished with no participation by Wells. Without any reliance or dependence upon Wells in these matters, there existed no confidential relationship the breach of which would justify the placement of the Chilmark property in a constructive trust.

In any event, had any duty in fact existed, whether as a result of a separation or divorce agreement or through confidential relations, there is no evidence in the record to convincingly support the contention that the actions of Wells would constitute a breach of that duty. As is explored more fully in the discussion of undue influence below, the evidence plainly shows that Coleman made an independent choice of his own volition to reconvey to Wells an interest in the property, and Wells exercised no underhanded or objectionable interference to cause this to come about. I have concluded that she neither threatened to leave if he did not reconvey the property to her, and that even if she had, such a demand would not constitute undue influence or the breach of any confidential relationship.

Breach of Contract/Promissory Estoppel

Coleman claims that Wells promised to reconvey her interest in the property to him "in the event the parties' efforts to reconcile failed", and her refusal now to do so constitutes breach of contract. Given the parties' mutual professions of harboring the intention to remarry, this is a thinly veiled pleading of breach of a contract for marriage. [Note 94] Such a cause of action has long been prohibited in the Commonwealth. See G.L. c. 207, § 47A ("Breach of contract to marry shall not constitute an injury or wrong recognized by law, and no action, suit or proceeding shall be maintained therefor."). While the Supreme Judicial Court in De Cicco v. Barker recognized a limited exception to this cause of action, it is not applicable here. See De Cicco v. Barker, 339 Mass. 457 , 459 (1959). In De Cicco, the court carved out an exception based in equity, stating that "[i]t is generally held that an engagement ring is in the nature of a pledge, given on the implied condition that the marriage shall take place. If the contract to marry is terminated without fault on the part of the donor he may recover the ring…It is a proceeding not to recover damages either directly or indirectly for breach of the contract to marry but to obtain on established equitable principles restitution of property held on a condition which the defendant was unwilling to fulfil. It seeks to prevent unjust enrichment." Id. The court relied on the provision of the Restatement indicating that in such circumstances "the donor is entitled to restitution if the gift is an engagement ring, a family heirloom or other similar thing intimately connected with the marriage." Id., quoting Restatement (First) of Restitution, § 58 (1937).

In applying De Cicco in consonance with this principle, lower courts of the Commonwealth have considered equitable restitution of property other than engagement rings when that property is inextricably connected with the marriage. See Alkhairy v. Ahmad, 33 Mass. L. Rep. 260 n.5 (2016) (Gordon, J.) (acknowledging that "the equitable principle articulated in De Cicco is not inalterably limited to the recovery of engagement rings and family heirlooms", but could be applied where "[t]he property is tangible, in the possession of the defendant, and its retention was inherently conditioned upon a marriage that did not occur", but holding that a bride was not entitled to recover money advanced to a groom after the groom broke off the engagement.); MacCleave v. Merchant, 15 Mass. L. Rep. 315 (2002) (Muse, J.) (where party conveyed one-half interest in home to the other but marriage never took place, plaintiff's pleading survived motion to dismiss where pleadings demonstrated the conveyance was explicitly in contemplation of marriage.); Bowzer v. Daly, No. 05-00443, Mass. Super. (Nov. 1, 2006) (Fremont-Smith, J.). Yet it is necessary to be cautious in so extending the very limited exception articulated in De Cicco; while an engagement ring by its very nature is undoubtedly connected to marriage, if the court is to apply this principle to property lacking such a facially inherent relation to that institution, it must be unequivocally clear that the gift is indeed explicitly and intimately tied to the specific event of marriage. Many gifts may be simply tokens of love and affection for which equity does not mandate recovery; it is a significant burden to show that a gift transcends this ordinary purpose and acquires the symbolic meaning traditionally vested in an engagement ring. See, e.g., Cooper v. Smith, 155 Ohio App. 3d 218, 227 (2003); Gikas v. Nicholis, 96 N.H. 177, 179 (1950); Albanese v. Indelicato, 25 N.J. Misc. 144 (Cty. Ct. Feb. 1, 1947).

Here, this limited exception does not serve as an avenue for relief. First, Coleman failed to establish that his conveyance of a joint interest in the Chilmark property was a gift inherently and explicitly conditioned on the marriage, and I find Coleman's reasons for reconveying an interest in the property to Wells were not explicitly in anticipation of or intimately connected to marriage (although both parties expressed an understanding that, at that time, they each personally anticipated that they would eventually remarry). Rather, I find that he was motivated by other reasons for the reconveyance, including his desire to convince both Wells and his two daughters that he was sincere in his renewed affection for them, and to ensure that he would remain in the good graces of Wells and his daughters at least long enough so that he would be welcome at his elder daughter's wedding (not an easy task given the level of distrust exhibited by both Wells and his elder daughter). [Note 95] I thus find that his gift was grounded in his determination to demonstrate affection and re-cement his connection to a family from which he had become estranged, rather than as an express symbolic token of his intention to remarry Wells; the limited exception of De Cicco provides no relief in such circumstances.

More importantly, however, equity only provides relief under the principle established in De Cicco where "the contract to marry is terminated without fault on the part of the donor", and the property is "held on a condition [namely, marriage] which the defendant was unwilling to fulfil." De Cicco v. Barker, supra, 339 Mass. at 459 (emphasis added). [Note 96] Here, as I have found, the engagement (if indeed it was an engagement) [Note 97] was not terminated without fault on the part of Coleman; rather, it was Coleman himself who made the abrupt choice to break off the relationship with Wells, and return to Pelne. He made this decision while he and Wells were visiting their younger daughter in Texas in late September, and he announced his decision to Wells on October 1 as a fait accompli. As I have made clear, I do not credit Coleman's suggestion that the decision was otherwise. It is clear that the donor, not the donee, was the one unwilling to fulfill the condition of marriage, if there was to be one; the limited equitable exception of De Cicco provides no relief under such circumstances.

Furthermore, even if the court were to construe the claimed contract for "reconciliation" as something other than one for marriage, it would still fail. A contract involving real property must meet the Statute of Frauds that the contract be in writing. See G.L. c. 259, § 1; Schwanbeck v. Fed.-Mogul Corp., 412 Mass. 703 , 709 (1992) ("Any promise involving real property is enforceable only if that promise meets the requirements of the Statute of Frauds."). There is no evidence in the record of any executed writing in which Wells agreed to convey the property back to Coleman. Without this, Coleman's claim for breach of contract cannot satisfy the Statute, and must fail.

Coleman has also advanced a claim of promissory estoppel, which need not satisfy the Statute of Frauds. See Hickey v. Green, 14 Mass. App. Ct. 671 , 673 (1982); Barrie-Chivian v. Lepler, 87 Mass. App. Ct. 683 , 685 (2015). While the lack of an executed writing does not necessarily foreclose Coleman's claim for promissory estoppel, the lack of any demonstrable promise, whether oral or written, does. "An essential element under the promissory estoppel theory is that there be an unambiguous promise and that the party to whom the promise was made reasonably relied on the representation." Rhode Island Hosp. Trust Nat'l Bank v. Varadian, 419 Mass. 841 , 848 (1995). Here, there is no evidence in the record that Wells, prior to the conveyance, made even an oral promise to convey the property back to Coleman upon any failed condition, for marriage, reconciliation, or otherwise. Wells testified that she never made such a promise, and Coleman offered no testimony to the contrary. Without such a promise, Coleman's claim of promissory estoppel likewise fails. To the extent that Wells made offers after the conveyance to "go back off the deed", there was no evidence that she offered to do so in case the reconciliation did not work out, and of course, Coleman could not have relied on any such after- the-fact offers in making the conveyance.

Undue Influence

The nub of Coleman's claims in this action is his contention that because of the combination of his post-surgery pain, reaction to prescription medications, and resulting delusional fear of being alone, Wells was able to and did exercise undue influence on him, forcing him to execute and deliver the deed to the Chilmark property. Based on the facts as I find them, Coleman does not succeed on any of the elements necessary to succeed in this claim.

"Undue influence involves some form of compulsion which coerces a person into doing something the person does not want to do." Tetrault v. Mahoney, Hawkes & Goldings, 425 Mass. 456 , 464 (1997). A claim of undue influence requires the plaintiff to prove that (1) an unnatural disposition was made (2) by a person susceptible to undue influence to the advantage of someone (3) with an opportunity to exercise undue influence and (4) who in fact has used that opportunity to procure the contested disposition through improper means. Howe v. Palmer, 80 Mass. App. Ct. 736 , 740-741 (2011). "The party challenging the validity of the document, on the ground that it was procured and executed as a result of undue influence, bears the burden of proving the allegation by a preponderance of the evidence." Id. at 740. [Note 98]

1. Unnatural Disposition

Coleman must first prove that his conveyance of a joint interest in the Chilmark property to Wells was an unnatural disposition. The inquiry into whether a disposition was unnatural is fact-based. See Nolan v. Nolan, 73 Mass. App. Ct. 1111 (2008) (Rule 1:28 Decision). A failure to show an unnatural disposition defeats a claim of undue influence. See O'Rourke v. Hunter, 446 Mass. 814 , 828 (2006). Massachusetts courts have previously looked to whether there is a facially cognizable, reasonable explanation for the particular disposition, and in doing so have largely considered the nature of the relationship between the parties and the degree of affection arising from that relation. See, e.g., In re Estate of Sharis, 83 Mass. App. Ct. 839 , 845 (2013). Courts have consistently found that it is not unnatural to dispose of property to family members with whom one maintains a close relationship. M.S. v. M.L., 89 Mass. App. Ct. 1126 (2016) (Rule 1:28 Decision); Baxter v. Grasso, 50 Mass. App. Ct. 692 , 697 (2001); Tetrault v. Mahoney, Hawkes & Goldings, supra, 425 Mass. at 465 n.11; Cranston v. Hallock, 281 Mass. 182 , 186 (1932); In re Estate of Peter S.H. Tang, 69 Mass. App. Ct. 1115 (2007) (Rule 1:28 Decision). See also Estate of Ditto v. Sanborn, 12 LCR 78 , 80 (Mass. Land Ct. 2004) (Sands, J.). Even where the individuals lack a blood relationship, it is not unnatural for one to convey property to a friend where they are linked by a notable bond of affection. See Heinrich v. Silvernail, 23 Mass. App. Ct. 218 , 224 (1986). Conversely, it is not unnatural to disinherit familial relatives where estrangement and lack of closeness provide reasonable explanation for disinheritance. See id.; Baxter v. Grasso, supra, 50 Mass. App. Ct. at 697; Paine v. Sullivan, 79 Mass. App. Ct. 811 , 817 (2011); Brogan v. Brogan, 59 Mass. App. Ct. 398 , 403 (2003); Elloian v. Elloian, 76 Mass. App. Ct. 1129 (2010) (Rule 1:28 Decision); Chesley v. Eastern Bank, 75 Mass. App. Ct. 1109 (2009) (Rule 1:28 Decision).

Here, Coleman's conveyance of a joint interest in the property to Wells was not an unnatural disposition, and I so find and rule. A gift between individuals formerly married for twenty-six years, who have had two children together, and who are renewing their relationship and planning to make their renewed relationship permanent, with or without a remarriage, is little different from a disposition between affectionate family members or friends with a close and affectionate relationship. At the time of the conveyance, Wells and Coleman each expected that they would be permanently back together, and they likewise acted in conformity with this expectation by taking significant steps towards planning for a long-term future together, such as searching for potential residences. A relationship anticipating such a long-term commitment inherently implicates significant closeness and affection. Even beyond the affection intuitively implied by such a relationship, it is clear from the testimony of the parties that, at least just prior to and around the time of the conveyance, they did indeed exhibit a love and affection towards one another. Though they technically still occupied the roles of ex-husband and ex-wife, the nature of their relationship had developed into that of an affectionate couple, each of whom expressed an intent that the relationship would be long-term and probably permanent. During June and July of 2013, they lived together, they socialized with others together, and most significantly, they jointly planned and attended their daughter's wedding. This is the type of relationship within which the courts have recognized a disposition to be natural, as it implicates both the familial relation and affection that make a disposition expected. A gift from one such partner to another is not unexpected, surprising, or unnatural. [Note 99] Given the long history between the parties, and given their intention, as it existed in June, 2013, to renew their relationship on a permanent basis, whether by marriage or otherwise, there was nothing unnatural about the disposition of the property by the conveyance of a joint interest from Coleman to Coleman and Wells.

2. Susceptibility to Undue Influence

Even if this disposition were unnatural, I find and rule that Coleman has additionally failed to demonstrate that he was, in fact, susceptible to undue influence. The existence of susceptibility is central to a finding of undue influence, for "however ingenious the fraud or coercive the influence may be, it is of no consequence, if there was intelligence enough to detect and strength enough to resist them." Shailer v. Bumstead, 99 Mass. 112 , 121 (1868). There is no single condition that renders one susceptible to undue influence. It may be brought about by physical infirmity or age, if the individual is debilitated to such a degree that another may easily control his or her affairs. See Heinrich v. Silvernail, 23 Mass. App. Ct. 218 , 223 (1986). Lack of control over one's own finances may also play a role. See In re Estate of Sharis, supra, 83 Mass. App. Ct. at 844. Cf. In re Estate of Peter S.H. Tang, supra, 69 Mass. App. Ct. 1115 .

In addition to such external factors, "the condition of a testator's mind has a material bearing on the question of whether he was in fact susceptible to undue influence." Dayton v. Glidden, 303 Mass. 268 , 269 (1939). One may thus become susceptible to undue influence through such unsoundness of mind or weakness of character that he or she lacks the ability to resist the overpowering will of another. See Lyons v. Elston, 211 Mass. 478 , 482 (1912); Collins v. Hucalak, 57 Mass. App. Ct. 387 , 394 n.8 (2002). In considering whether an individual is so impaired, courts have previously looked to factors impacting an individual's cognitive skills and ability for independent decision making. Intellectual impairment or mental disability are, of course, significant factors in this calculus: "[u]nsoundness of mind embraces every species of mental incapacity, from raging mania to that debility and extreme feebleness of mind which approaches near to and often degenerates into idiocy," and included in this range are conditions archaically described as "monomania and insane delusion." Woodbury v. Obear, 73 Mass. 467 , 472 (1856).

Lack of education or experience also may contribute to one's vulnerability, particularly where one relies entirely on the advice of others in financial or business matters. See Raposa v. Oliveira, 247 Mass. 188 , 190 (1924); Howe v. Palmer, 80 Mass. App. Ct. 736 , 737 (2002); Markell v. Sidney B. Pfeifer Found., Inc., 9 Mass. App. Ct. 412 , 444 (1980); Parker v. Simpson, 180 Mass. 334 , 338 (1902). By contrast, an individual's exercise of independent financial acumen, business savvy, and regular consultation with counsel may indicate that he or she is of sufficiently strong character to resist the overpowering influence of others. See McMackin v. McMackin, 283 Mass. 452 , 456 (1933); Neill v. Brackett, 234 Mass. 367 , 371 (1920); Rostanzo v. Rostanzo, 73 Mass. App. Ct. 588 , 606 (2009); Becker v. Becker, supra, 12 LCR at 151.

Coleman claims that he was susceptible to undue influence at the time of the conveyance because a number of mental conditions, to some extent the result of physical pain from his operation and delusions exacerbated or caused by the medications he was taking, reduced his cognitive capacity and decision making ability. However, Coleman has failed to carry his burden on this element. I do not credit that Coleman was afflicted with anxiety, depression, or fear of being alone to such a degree that he became susceptible to the undue influence of Wells. Nor do I credit that Coleman's stated desire to reunite with Wells was a delusion impairing his cognitive ability. Stated another way, I did not believe Coleman's facile testimony that he was helpless to resist Wells' urgings that he deed the property to her, while he otherwise exhibited an ability to function at a high level socially and in his profession; continued to demonstrate an interest and an ability to make sophisticated financial and legal decisions, including the decision as to the form of title for the deed and a consideration of how to avoid the land tax for the transaction; continued to provide sophisticated statistical analyses to the Chicago Blackhawks, assisting them in their run to the Stanley Cup championship; continued to function socially, attending dinners, traveling and maintaining contact with others, including his friend and massage therapist, as well as his sister and brother, from whom he makes no claim that Wells attempted to isolate him; and continued to show an ability, despite his professed fear, to be alone on many occasions.

The primary support for Coleman's claims of cognitive impairment comes from the testimony of his expert witness Dr. Harold Bursztajn. Dr. Bursztajn testified that he conducted a 4.25 hour examination of Coleman in 2015, and concluded from this examination that two years earlier in 2013 Coleman had suffered from a mood disorder with mild anxiety that eventually transformed into a circumscribed delusion that if he did not reunite with Wells he would die alone. He testified to a "perfect storm" of factors contributing to this delusion, including anxiety and depression resulting from the pain in his foot, a cocktail of drugs, a fear of dying alone, and issues with his relationship with his family. He testified that Coleman as a result thought he had no choice but to sign the deed, even though he did not wish to do so. To reach this conclusion, Dr. Bursztajn testified that he used a personality assessment testing instrument as part of a structured interview, followed by an unstructured interview of Coleman. I credit the testimony of Dr. Stephen Greenberg, an expert witness for Wells on the subject of psychological testing methods, who concluded that Dr. Bursztajn's testing methods provide little of value as to Coleman's mental state two years prior in 2013. Dr. Greenberg noted that Dr. Bursztajn's interview procedure deviated significantly from standard practice. During the first portion of the interview, Dr. Bursztajn instructed Coleman to think back and fill out the assessment as if he was in the same state of mind as at the time of the conveyance two years prior. Dr. Greenberg testified that this was an entirely incorrect use of the assessment instrument, as the assessment is designed to test one's contemporaneous mental state. It is not possible to retrospectively use this assessment to evaluate Coleman's prior mental state with any degree of accuracy because there is no body of work against which to compare the results of such an unorthodox implementation, and it would not be possible to conduct a sound analysis of Coleman's results. Indeed, the improper administration of the test caused the automatic scoring system normally used to score this assessment to refuse to provide a score. Dr. Greenberg also noted that the lapse of time itself intuitively detracts from the value of such retrospective testing, as it would be difficult for any individual to accurately recreate the nature of his or her mental state from years prior. I do not credit Dr. Bursztajn's conclusion that anxiety he observed in Coleman in 2015 while answering questions about 2013 was an unconscious reenactment of his mental state in 2013. Additionally, the assessment is intended to be administered by a clinician, whereas here Coleman self- administered the test. After the initiation of litigation, an interested party's self-reporting of the prior mental state on which his claims hinge must be treated with some suspicion; while it may carry some evidentiary value, it does not provide a sufficiently solid foundation for the scientific conclusions advanced by Dr. Bursztajn.

Beyond the procedural deficiencies of the assessment, Dr. Bursztejn's conclusions are undermined by a number of additional problems outlined by Dr. Thomas Gutheil, Dr. Bursztejn's colleague and former professor at the Harvard Medical School, who testified as an expert witness for Wells. Most significant of these is the failure to consider the accounts of other individuals who observed Coleman contemporaneously with the time of the conveyance, inaccuracies concerning the effects of Coleman's medications, and the failure to sufficiently consider the alternate hypothesis that reuniting with his ex-wife was a wish rather than a debilitating delusion. I conclude, as did Dr. Gutheil, that a consideration of these factors indicates that Coleman was not suffering from any mental impairment during the period in question, and that none of the elements of Dr. Bursztajn's "perfect storm", either individually or collectively, rendered Coleman susceptible to the undue influence of Wells.

First, I did not believe Coleman's testimony that he was paralyzed by an overpowering fear of being alone in his day-to-day life. Coleman was often alone during the period in question. [Note 100] In the first months of 2013, while still with Pelne, Pelne was a full-time student, and he was frequently alone while she was at class. [Note 101] Later, once with Wells, he was able to drive himself alone to physical therapy and appointments with his medical providers, and often went to the YMCA for exercise. [Note 102] He was able to travel to meet Wells in Pittsburgh by himself. When Coleman and Wells attended a number of hockey games together, Coleman purchased a ticket for Wells at a different location in the arena than his own. His testimony did not indicate that any overwhelming fear interfered with his ability to undertake such activities by himself or without Wells being present, and this behavior is not consistent with one desperately afraid of solitude or of being away from his companion. Nor did others who observed Coleman during this period report any convincing indications of a compelling fear of being alone. While Wells testified that Coleman stated he was afraid of dying alone, she also testified that he never indicated he was afraid of being alone in the moment. [Note 103] Samantha Burns, Coleman's massage therapist and confidant, testified that he did not inform her of any fear of being alone, and only mentioned a fear that his health would not improve. Most significantly, the contemporaneous records of his treating psychiatrist likewise do not indicate that he reported any such debilitating fear. Coleman regularly received treatment from Dr. Nenov both in person and over the telephone during this period, and Dr. Nenov kept notes on the content of these conversations. These notes indicate that Coleman occasionally informed her that he was feeling lonely: for example, on April 8, 2013 Coleman informed her that his biggest fear at the time was being alone while his wife was away, and on June 25, 2013, he told Dr. Nenov that he was "uncomfortable being alone." While this indicates that Coleman did not enjoy being alone, I do not credit that his claim that his need for company was so intense as to cripple his ability to rationally make decisions. Dr. Bursztajn's conclusion that Coleman's fear became overwhelming as a result of Pelne's departure for Europe, causing him to seek out Wells, is not convincing. Coleman had already developed the plan to contact Wells considerably before Pelne left, and did indeed contact Wells before Pelne's departure. Coleman told Dr. Nenov, before Pelne's departure, that he planned to contact Wells, and he did not attribute this plan to his fear of being alone once Pelne left.

Additionally, it is clear that any fear of being alone that he did possess would not have rendered him susceptible to undue influence by Wells, as he exhibited that he was perfectly capable of mitigating this fear by making other arrangements for company. Coleman asked his massage therapist, Samantha Burns, to stay with him at the Chilmark property during the period that Pelne was to be traveling, and she agreed to this. He also made arrangements for his brother and sister to visit him for significant periods of time during the summer. Coleman's purported fear of loneliness would not have rendered him unusually vulnerable to the predations of a single opportunist, as he proved himself able to alleviate any such fear with the company of others. If Wells was not present, he knew he had others who had already agreed to spend time with him.

There is likewise no convincing evidence supporting Dr. Bursztajn's conclusion that Coleman's cognition was significantly impaired by the medications he was taking at the time. At the time of the conveyance, Coleman was taking Neurontin regularly, and would only occasionally utilize Xanax. Dr. Gutheil testified that there is no literature stating that Neurontin can cause a state of psychotic depression, and the only form of delusion it has ever caused is the feeling of ants crawling under one's skin. He also testified that neither Xanax nor a combination of Xanax and Neurontin can cause delusions of the type described by Dr. Bursztajn. Dr. Bursztain offered no evidence of studies concluding otherwise.

The evidence demonstrates that Coleman was indeed feeling occasionally anxious and unhappy during both the period prior to his reunion with Wells, and at some times subsequent. Dr. Nenov's notes state that Coleman told her that he was feeling anxious and depressed at times, and she prescribed him Xanax, a drug typically used to treat anxiety. David Chuchinsky, Coleman's brother-in-law, testified that Coleman was uncharacteristically emotional and unhappy. Dr. Gutheil agreed that Coleman may have suffered from anxiety and depression. However, I do not credit Coleman's testimony that these conditions were so exceptionally pronounced and severe as to render him vulnerable to being mentally overpowered by Wells. His reports to Dr. Nenov and other medical providers are inconsistent with this claim of exceptional mental and emotional deterioration. While Dr. Nenov's notes from both the period prior to and after his reunion indicate that Coleman was sometimes feeling unhappy and anxious, they also indicate that he was often feeling hopeful, positive, and confident. [Note 104] This is consistent with the credible testimony of Wells of her observations of his emotional condition. The records of his other medical providers likewise indicate that Coleman specifically denied feeling anxiety or depression. [Note 105] The record thus does not indicate that Coleman's negative emotions were abnormally strong or overpowering, and I do not credit Coleman's testimony to the contrary. Coleman's claim that his physical condition significantly weakened his emotional state is likewise not convincing or credible: Coleman's medical records indicate that the symptoms in his foot had abated considerably by April 2013, and had progressed to the point of being annoying but not painful. Coleman himself likewise testified that his symptoms had abated by May 2013.

Furthermore, I do not credit Dr. Bursztajn's contention that these factors together created a delusional mood disorder marked by psychotic features concerning the need to reunite with Wells at all costs. [Note 106] Coleman certainly did desire a reunion. Coleman testified as to this desire, and he reported to both Dr. Nenov and Samantha Burns his desire to reunite with his ex-wife and family so that he could make amends and receive forgiveness. Even so, a wish need not be a delusion. A yearning to be romantically linked to another, even if fervently held, is an elemental attribute of the human condition. The accompanying fear that one's love may go unrequited is not per se a symptom of an unsound mind or an incapacitating weakness of character, but is rather an entirely ordinary and rational apprehension. Emotional reliance on another's love cannot (absent extraordinary circumstances) be equated to the utter dependence of the physically infirm or mentally incapable, as it does not truly deprive one of freedom of action. Coleman's feeling of need to remain with Wells would only so unseat his mind and character as to render him susceptible upon a showing of truly exceptional, monomaniacal fixation, which he has not shown here. [Note 107]

Here, there is nothing to indicate that Coleman's particular spate of brief infatuation, even assuming it was an honest desire, and not a calculating ploy to get back in his daughters' good graces, so exceeds the norm that it demolished his strength of will and rendered his character ineffectively weak. Dr. Nenov's notes indicate that during his therapy sessions Coleman discussed his desire for reunion, and his feelings about the relationship, yet her notes repeatedly state that Coleman was not suffering from any delusions. Dr. Nenov was thus aware of Coleman's desire, yet did not classify it as anything beyond a rational and normal human want. Dr. Bursztajn drew great significance from the fact that Dr. Nenov noted in their initial sessions that Coleman was suffering from "no delusions," but in a later note stated that he suffered from "no overt delusions." Dr. Bursztajn inferred that the addition of the word overt was intended to signify that Coleman was in fact suffering from a "covert", rather than overt, delusion. This is far too great an inferential leap to be credited. Had she intended to convey such a significant piece of information as the existence of a delusion, it unlikely that her only reference to it would be so surreptitious and oblique. Additionally, Dr. Nenov's notes continued to state "no overt delusions" even after Coleman had left Wells at the beginning of October. It makes little sense to infer that Dr. Nenov intended to state that Coleman continued to suffer from a covert delusion concerning the need to stay with Wells after he had, in fact, made a deliberate decision to leave her for a second time. The simplest and most probable conclusion, and the one I credit, is that Dr. Nenov intended to note that Coleman was suffering from no delusions whatsoever. Furthermore, I credit Dr. Gutheil's testimony that there is no such thing as a "covert delusion" accepted in the medical literature.

Beyond this unwarranted inference urged by Coleman, there is precious little evidence of any behavior indicating that he was rendered vulnerable by an outrageously desperate attachment to Wells. No witnesses testified that Coleman had informed them of a fear that Wells would leave him. In fact, Samantha Burns testified that Wells, not Coleman, mentioned an ultimately well-founded fear of abandonment. Most tellingly, neither Wells' nor Coleman's accounts of the termination of their relationship supports Coleman's claimed fear of abandonment. Coleman planned on his own to leave Wells before they even returned to her California home, and even by his account, when Wells showed him a tweet from Pelne stating that she still loved him and would take him back, he abruptly abandoned the relationship with Wells and went back to Pelne. Wells testified that Coleman suddenly announced his intention to return to Pelne and ended their relationship because Pelne was younger. Coleman's testimony was consistent with this, adding only that Wells agreed after reading the tweet that he should return to Pelne. The subsequent e- mails between Wells and Coleman confirm that it was Coleman's choice to leave. [Note 108] Even were I to credit Coleman's version this event, which I do not, it is entirely inconsistent with his claimed delusion that he must do anything to remain with Wells. Coleman provided no convincing explanation as to why, if he felt a debilitating need to remain with Wells, he himself chose to suddenly terminate their relationship. [Note 109]

Additionally, Dr. Bursztajn's conclusion that Coleman's delusion resulted partially from a long-held fear of dying alone is not credible; while Coleman claimed that this fear was the result of watching his mother die alone, Coleman's brother-in-law testified that Coleman's mother had in fact died in the presence of Coleman and a number of other family members. While there is some evidence that Coleman did indeed possess some fear of dying alone, it is unclear how this relates to the development of a fixation on Wells. A general fear of dying alone would not have rationally rendered him susceptible to the influence of Wells because his current marriage to Pelne would have served to resolve this fear, and he demonstrated that he was capable of arranging for company when she was not present. Coleman offered no convincing explanation for this inconsistency other than that he was not able to think rationally. However, not only is there no convincing evidence of such an exceptionally pronounced mental deterioration, one cannot avoid repeated evidentiary inconsistencies by simply declaring the mental state to have been irrational and therefore unexplainable by a rational view of the evidence.

Dr. Bursztajn explained the lack of outward signs of delusion by asserting that the delusion was "covert." He stated that Coleman was only delusional on the subject of Wells, and that the extent of his irrationality was outwardly apparent to none but nonetheless was sufficiently powerful to entirely diminish his strength of will. However, this theory is at its core entirely speculative, and without supporting evidence, and it cannot sustain Coleman's burden of proof on this element. Suspicion, surmise, or conjecture is not sufficient for a finding of undue influence. See Popko v. Janik, 341 Mass. 212 , 215 (1960).

Coleman's outward actions instead evince clarity of mind and a full, rational ability to understand the nature of a conveyance. Coleman and his local real estate attorney Geoghan Coogan exchanged eleven e-mails discussing such issues as the nature of joint ownership and the manner in which they might avoid the Land Bank tax. Though Coleman testified that he did not consider his conversations with Coogan to be legal advice, and claims he did not understand the legal ramifications of these conversations, [Note 110] I do not find this testimony credible. Coleman is a sophisticated businessman with significant experience in the purchase and sale of real estate. In fact, during the same period as the conveyance in question in this case, Coleman was completing the acquisition of a rather complex conservation land tax credit. [Note 111] The suggestion of a masked, undetectable irrationality and susceptibility to undue influence is unsupported and conjectural, and is belied by the evidence of Coleman's demonstrated ability during this period to successfully continue to work, function, and act independently with respect not only to this conveyance but also to the conservation restriction and trail easement, as well as to his statistical analysis obligations to the Chicago Blackhawks and other hockey teams; the bare allegation that Coleman secretly bore a hidden mental condition does not overcome this definitive evidence of continued soundness of mind.

Ultimately, the evidence demonstrates only that Coleman, at least for a short while, possessed a strong desire to rekindle his past relationship with Wells. After this desire was fulfilled, he maintained (for a time, at least) a desire to continue this relationship. If he was sometimes worried that his relationship with Wells would end and he would lose a degree of involvement in family affairs, these were rational concerns that did not exceed the norm in their potency and extent. Accordingly, I find and rule that Coleman possessed neither an unsoundness of mind nor weakness of character that would have rendered him susceptible to the influence of Wells.

3. Opportunity for Undue Influence

Coleman must demonstrate that Wells had the opportunity to exert undue influence over him. Coleman has failed to carry his burden on this element. Factors that the courts have considered in making this evaluation include the amount of time that the individual spends with the grantor in an allegedly unduly influenced transaction, and the extent to which that individual has the ability to control the grantor's affairs. See Ware v. Stanton, 72 Mass. App. Ct. 1115 (2008) (Rule 1:28 Decision); Foley v. Philbrook, 300 Mass. 418 , 421 (1938); Reilly v. McAuliffe, 331 Mass. 144 , 148 (1954). Accordingly, one may acquire the opportunity to exert undue influence over another by isolating him or her from friends and family. See In re Estate of Moretti, 69 Mass. App. Ct. 642 , 655 (2007) (collecting cases showing that "[i]solating the decedent is an oft-cited tactic of those targeting elderly and dependent individuals, in order to gain the opportunity to influence favorable bequests.").

There is no credible evidence that Wells was in a position from which she would have been able to exert undue influence over Coleman, and I find and rule that she neither had nor exercised any such opportunity to unduly impose her will on Coleman, even had he been susceptible to such influence, which I have found he was not. While Wells and Coleman spent a significant amount of time together for a number of weeks prior to the conveyance, Wells did not isolate Coleman from friends, family, his lawyer, his treating psychiatrist, or anyone else during that period. They attended occasional social engagements with friends. When they attended the Stanley Cup finals, Wells willingly sat separately from Coleman so that Coleman could watch from the press level. Coleman's massage therapist and friend Samantha Burns frequently visited Coleman, and Coleman spoke freely with her about the progress of his relationship with Wells. Coleman also spoke regularly with Dr. Nenov, and I do not credit Coleman's testimony that Wells attempted to prevent him from speaking with Dr. Nenov. Coleman saw his sister, his brother, and their families during a number of visits. During Wells and Coleman's visit to Connecticut, Wells herself proposed that she and Coleman move in with Coleman's sister and Chuchinsky in an apartment in Stamford. There was no credible evidence to indicate that Wells sought to isolate Coleman from those who may have advised against the conveyance of the property. Quite to the contrary, the evidence instead demonstrates that Coleman continued to exercise independent judgment free from the interference of Wells, and that he had free access to others with whom he might wish to consult. Coleman did in fact consult with Attorney Coogan for the purpose of discussing and determining the manner of the very conveyance that is the subject of this action. Wells was not involved in these consultations. The deed was likewise not signed in isolation, but in Coogan's office. Similarly, just days before signing the deed, Coleman signed a new will at Coogan's office without the presence of Wells.

4. Procurement through Improper Means

Finally, Coleman must show that Wells procured the disposition through improper means. See Howe v. Palmer, 80 Mass. App. Ct. 736 , 740-741 (2011). This requires a showing of both "the fact…of improper influence exerted," as well as "submission to the overmastering effect of such unlawful conduct." Bruno v. Bruno, 384 Mass. 31 , 33 (1981), quoting Neill v. Brackett, 234 Mass. 367 , 270 (1920). Massachusetts has adopted the position of the Restatement (Second) that improper influence exerted amounts to "unfair persuasion" in a relationship of either domination or confidentiality. Id. However, not all persuasion is unfair, and one is free to exercise some degree of due influence, as long as it does not coerce a person so that "what he does he is constrained to do contrary to his own free will." Wellman v. Carter, 286 Mass. 237 , 253 (1934). See Bacon v. Bacon, 181 Mass. 18 , 22 (1902) ("A will is not to be set aside because some influence is used by a devisee or legatee, but undue influence must be shown to accomplish this result."); Heinrich v. Silvernail, 23 Mass. App. Ct. 218 , 226 (1986) ("That she still had the power of influence held by one friend over another will not defeat the will. Such influence is a simple and expected consequence of human friendship and, in this case, compassion."); Barounis v. Barounis, 87 Mass. App. Ct. 667 , 675 (2015) (where daughter repeatedly importuned father to will her a greater share in his property, "there is no error in his conclusion that [the daughter's] influence, while significant, was not ‘undue.'"). Accordingly, flattery, importunity, and solicitation can be means of influence that do not necessarily pass into the realm of unfairness. See Wellman v. Carter, supra, 286 Mass. at 253. These do not "ha[ve] a tendency to cause a [grantor] to do anything except what he exactly wants to do." Id. at 252. "Circumstances often arise where such conduct is wholly justifiable. Such influences may be persuasive and effective, but, so long as not coercive, they are not undue." Neill v. Brackett, supra, 234 Mass. at 370. This applies, perhaps even more so, [Note 112] to the influence arising out of a romantic relationship. See id. ("The mere opportunity of the wife, when living happily with the husband, to influence the execution of a will favorable to herself, or to cause discrimination against or amongst children, is not alone sufficient to warrant submission to the jury of the question of undue influence."); McOuatt v. McOuatt, 320 Mass. 410 , 412 (1946) ("A wife has the right to discuss with her husband the advisability of giving her an interest in his property, and to request and, if necessary, to persuade him to make some provision for her benefit." In evaluating whether the influence exercised was improper or unfair, courts have considered whether the evidence allows an inference of a questionable, duplicitous intent. See Wellman v. Carter, supra, 286 Mass. at 248- 255; In re Estate of Lacey, 84 Mass. App. Ct. 1108 (2013) (Rule 1:28 Decision).

There is no question that Wells sat in a position of some degree of influence over Coleman at the time of the conveyance, and Coleman in turn possessed the same manner of influence over her. This is the natural result of a relationship of mutual affection. The evidence is clear that Wells asked Coleman on at least two occasions to "put her back" on the deed. However, I do not credit that the evidence demonstrates that Wells employed unfair persuasion in exercising this influence, or that Coleman was compelled to undertake actions contrary to his own desires.

First, I find no basis to conclude that Wells implemented any unfair persuasion. Coleman's testimony that Wells repeatedly demanded the addition of her name to the deed, and that she threatened to leave him, was not credible. I credit instead Wells' contrary testimony that while she asked him to reconvey to her an interest in the property, she made no threats to leave him if her demands were not met. [Note 113] She testified that she asked if he would "put her back" on the deed first during one of their telephone conversations, and then once later after they had reunited. She stated that she asked him to put her back on the deed because she was afraid that he would leave her, and she wanted him to assure her that he was sincerely committed to their relationship. [Note 114] This was not an improper means of exercising her influence. It was at most solicitation or persuasion that was well within the grounds of propriety, particularly given their past history, their plans to reunite on a permanent basis, and that this conveyance would have returned the parties to the ownership positions that they had possessed during their prior marriage. See McOuatt v. McOuatt, supra, 320 Mass. at 412. Furthermore, there are no convincing indicia of any questionable intent suggestive of improper influence, as her persuasion appears to have been genuinely motivated by the goal of receiving further assurance of the sincerity of his stated intention of making this a permanent reconciliation. The previous relationship of the parties ended in divorce. Wells and Coleman both testified that this was undertaken on Coleman's initiative, and that Wells had not wanted a divorce. She testified that she was emotionally "crushed" by his departure. [Note 115] She expressed her concern in an e-mail to Coleman that "I wouldn't recover if I lost you again." [Note 116] In a separate e-mail, she told Coleman that she was afraid that he was using her as a "sacrificial lamb so that you could keep your life and promote yourself at [their daughter's] wedding." [Note 117] In light of Coleman's role in ending their first marriage, it was both legitimate and "not undue" that Wells was wary of the sincerity of Coleman's pledge that he did in fact now love her, and she sought an assurance of his sincerity. Any suggestion that Wells' request to have a joint interest in their home was the result of a nefarious plot to obtain the property is further undermined by the fact that she voluntarily offered to relinquish that interest three times after the conveyance; this act is inconsistent with an intent focused only on acquiring the property. Under the circumstances presented here, I infer not that Wells was motivated by any dubious purpose, but rather that she was legitimately motivated by a desire for assurance of Coleman's true commitment to their relationship.

Nor can it be said that there was on Coleman's part any "submission to the overmastering effect" of her persuasion. Fundamental in the successful exercise of undue influence is that the person is ultimately forced "into doing something the person does not want to do." Tetrault v. Mahoney, Hawkes & Goldings, supra, 425 Mass. at 464.That result has not been shown here, as the evidence establishes that Coleman acted in conformance with, rather than contrary to, his own free will. I credit Wells' testimony that Coleman told her that putting her on the deed would make him happy, and that after the conveyance he told her that the conveyance was "my gift to you." Prior to the conveyance, Coleman expressed his considerable affection for Wells, and I credit that he wished to materially demonstrate his affection and commitment. [Note 118] He also wanted to rebuild past connections to his family, as he entertained a fear of dying without their approval and affection (which I find to have been rational and not the result of a delusion), and thus wished to ensure a continued connection to them. [Note 119] And he very much wanted, in the immediate future, that connection so that he could attend his daughter's wedding as a welcome member of the family, and to resurrect his severely strained relationship with his daughters, something he could not do without making amends with Wells. Coleman wanted Wells to jointly own the property with him as one step towards accomplishing this. Seen in this light, the reconveyance of a joint interest in the property to Wells was for Coleman's benefit at least as much as it was for that of Wells. Nor was this the only step taken of his own volition to more concretely re-insert himself into the family unit – he began proceedings to divorce his current wife, [Note 120] included Wells and her son on his will, and added Wells as a beneficiary of his life insurance policy. He did not do these things because Wells forced (or even asked) him to, but because he wanted to, and the motivation for the conveyance of the property appears consistent with that of these other voluntary actions. Coleman's attitude after the conveyance additionally demonstrates a true desire to hold the property jointly. According to his own testimony, Wells thrice suggested that he retake his full interest in the property, and Coleman insisted each time that they remain joint owners. This undercuts Coleman's claim that he did not truly want to convey the property and only did so because of Wells' persistence, as he himself insisted on maintaining joint ownership even after she herself offered to give it up.

Ultimately, the only evidence that this conveyance was contrary to his true desires and the product of coercion is the fact that it was made for no material consideration. Coleman thus asks the court to conclude that any decision by him that foregoes monetary benefit must be the product of an unsound mind. However, he discounts the entirely more credible explanation that his true desires may have been shaped and motivated by his love for Wells, or at least by his desire to reunite with his wife of twenty-six years and his two daughters. As eloquently noted by the New Jersey Court of Equity,

The mere fact that the grantor was actuated by such motives is not of itself presumptively indicative of the use of fraud, deception, or undue influence in the legal signification. In this day of materialistic valuations, it is not astonishing to meet an argumentative effort to abnegate the value of love and affection as a valid and credible reason for an otherwise gratuitous transfer or donation by one person to another. Love is without law and in some instances seemingly without reason, but in the absence of some defiling proof I decline to regard it as foul. I do not believe that the defendant pawned his affectionate and loyal devotions for the acquisition of the property.

T v. Radice, 140 N.J. Eq. 308, 311 (1947) (internal citations omitted). [Note 121] Here, Coleman has presented no such defiling proof, and it appears that the conveyance was nothing more than a voluntary and enthusiastic fulfillment of his true desire to reunite with Wells. The fact that his love and affection faded soon after he got what he wanted does not invalidate it post-hoc as a credible and legitimate basis for conveyance of the property.

In sum, while a failure to prove a single element of the test for undue influence would be fatal to Coleman's claim, he has failed to carry his burden on any of the necessary elements. Accordingly, Coleman's claim for undue influence fails. This is the final adverse claim advanced by Coleman challenging Wells' title to 60 and 68 Meetinghouse Road in Chilmark. As each of Coleman's challenges fail, Wells is entitled to a declaratory judgment that her claim to the joint interest deeded pursuant to the June 27, 2013 deed is valid, and is superior to any claim to that interest advanced by Coleman.

Contribution

Coleman finally claims that Wells has been a joint tenant in the property since he deeded to her an undivided one-half interest, and she must therefore contribute to payment for the expenses incurred since the execution of the deed. Coleman claims that between June 27, 2013 and November 1, 2014, he incurred costs for upkeep of the property, [Note 122] and included bills for landscaping, heating and electricity, pest control, caretaking, cleaning, insurance, telephone and television service, and heating system repair. He has also included bills for the payment of real estate and personal property taxes associated with the parcels. Finally, he argues that he made mortgage payments to which Wells must contribute.

Unlike Coleman's other counterclaims, his claim for contribution cannot be remedied by a conveyance of the property, and rather seeks only monetary damages. It is generally beyond the jurisdiction of the Land Court to award damages for independent contract or tort claims. See M&T Bank v. Murillo, 22 LCR 31 , 35 (Mass. Land Ct. 2014) (Foster, J.). However, the court may address damage requests that are ancillary to an underlying real property dispute. See id.; Ritter v. Bergmann, 72 Mass. App. Ct. 296 , 302 (2008). Coleman's claim for contribution based on Wells' joint interest is ancillary to Wells' claim for declaratory judgment as to the legitimacy of that interest. It is therefore within the purview of the Land Court to consider Coleman's claim for contribution.

Turning first to plaintiff's claim for expenses associated with upkeep, one tenant need not be responsible for the other's "voluntary contributions of labor, goods or money, made without expectation or promise, express or implied, that they would be paid for." Howland v. Stowe, supra, 290 Mass. at 145. See also Kalman v. Perry, 1999 Mass. App. Div. 1 , 3 (Mass. App. Div. 1999) ("[A]t common law a co-tenant who pays the cost of improving or repairing the property was not entitled to contribution from the other co-tenants in the absence of an agreement to contribute."); Sheeran v. Page, 6 LCR 201 , 204 (Mass. Land Ct. 1998) (Kilborn, J.). There is no evidence in the record of an agreement, either express or implied, between Coleman and Wells concerning joint contribution for the claimed expenses associated with upkeep and maintenance of the property. [Note 123] Accordingly, I find Coleman's payments towards these expenses to have been voluntary, and I find and rule that Coleman is not entitled to contribution for those claimed expenses.

However, mortgages and taxes are to be regarded differently than such expenses for maintenance. "One tenant in common [Note 124] may recover from another his proportionate share of money expended in paying interest or principal of a mortgage, or taxes, constituting an encumbrance upon the common property." Howland v. Stowe, 290 Mass. 142 , 147 (1935). See also Dickinson v. Williams, 65 Mass. 258 , 260 (Mass. 1853) ("Money expended by the plaintiff to pay off a common incumbrance necessary to be removed to discharge their joint cotenants, must equally be the proper subject of an action of assumpsit by one tenant in common against his cotenant."). Taxes are a proper subject for contribution, as "the tax was a lien upon the land which both tenants were equally bound to discharge. The law regards one half of the money paid to discharge this lien as money paid at the request of the defendant and for his use, and it can be recovered in an action upon an account annexed." Kites v. Church, 142 Mass. 586 , 588 (1886). The same principle may allow contribution for mortgage payments, for "[w]hen one of two tenants in common pays the mortgage of both, he acquires a lien on his cotenant's share of the mortgaged property, which he holds as security for the amount paid in excess of his share of the mortgage debt." Roche v. Hampden Sav. Bank, 128 Mass. 115 (1880).

Coleman has offered evidence that he has paid $7,243.78 in real estate and personal property taxes related to 60 and 68 Meetinghouse Road for the period during which Wells held a joint interest in the property. [Note 125] Wells must contribute to her proportionate share of these taxes; as she is a joint tenant with a fifty percent interest in the property, Coleman would be entitled to $3,621.89. However, it also appears from the evidence that Coleman rented the property for certain periods during 2013 and 2014, with a net rental income after commission of $16,668.00, [Note 126] and failed to account to Wells for this income. Since half of the net rental income far exceeds the amount Wells would otherwise owe Coleman for real estate and personal property taxes, I decline to award any amount for real estate taxes. [Note 127]

While Coleman potentially would be entitled to be reimbursed for half of the mortgage payments under the same principle, he has failed to carry his burden as to these payments. Aside from evidentiary deficiencies with respect to proof of mortgage payments for the period October 8, 2014 through August 8, 2016, Coleman is not entitled to contribution for mortgage payments because the mortgage in question has not been shown to be a "common encumbrance" within the meaning of the cases that have held a joint tenant responsible for contribution. In Roche v. Hampden Savings Bank, "[t]he money was borrowed for their joint benefit, and they were equally bound to pay the debt with interest..." Roche v. Hampden Sav. Bank, supra, 128 Mass. at 115. In Dickinson, the parties together purchased a property subject to an existing mortgage "which they jointly assumed to pay." See Dickinson v. Williams, supra, 65 Mass. at 258. Similarly, in Howland both parties acquired the property at the same time, and did so subject to a mortgage that both "assumed and agreed to pay." See Howland v. Stowe, supra, 290 Mass. at 144.

Here, Coleman has provided no evidence as to the purpose for which the mortgage loan was acquired. There is no evidence in the record to support a finding that the loan secured by the mortgage was for the purchase or refinance of an earlier loan used to purchase the property, as it was in Roche. Coleman testified that he paid off the existing mortgage and line of credit in 2010 at the completion of the divorce, and then subsequently took out a new $650,000 mortgage on the property. [Note 128] There was no evidence presented that the proceeds of the mortgage loan were used for the purchase of the property or for the refinance of an earlier loan used for the purchase of the property. Similarly, there is nothing in the record to indicate the money borrowed was used for the joint benefit of the parties in any other way, and they are likewise not "equally bound to pay the debt with interest," as Wells is not an obligor on the note, and there is no evidence that she received any benefit from the loan secured by the present mortgage. Roche v. Hampden Sav. Bank, supra, 128 Mass. at 115. Where Wells has seen no gain from the loan secured by the mortgage, she cannot be held responsible for contribution towards the repayment of that loan. Accordingly, Coleman cannot recover for the claimed payments made towards the mortgage on the property.

CONCLUSION

On June 27, 2013, Richard Coleman conveyed a joint interest in their former marital vacation home to Melanie Wells. Wells has carried her burden on her count for declaratory judgment seeking a determination of the continuing validity of that conveyance. Coleman has failed to carry his burden on any of his defenses or any of his counterclaims.

Judgment will enter accordingly.