Abandonment (of Home or Property) Under Duress or Threat of Force

[astan...@gmail.com]

MediumBunny's question about an interlocutory appeal brings up
a subject and paints a scenario with ramifications for people
other than marriage partners. In his or her narrative, "B"
"ran off with" someone, apparently abandoning a marriage but
not necessarily the home. MediumBunny states that "A" inhales
quantities of substance that (one assumes) are illegal and with
the potential to effect radical and dangerous changes in behavior.
If "B" could prove that "A" was an addict and therefore dangerous
before "B's" "abandonment," couldn't an argument be made in regard
to "B's" motives for *quitting* the property not out of
indifference to ownership or possession or right of enjoyment
to the premises, but out of fear for "B's" safety?

If "B" could make such an argument (I'm assuming the *cougher*
did at least inquire further about the abiding rationale or
desire to re-bond with the home), why would a judge deny such
an appeal?

Thank you.

[Robert Bonomi]

> <astan...@gmail.com> wrote:

> .. sneck...

>If "B" could prove that "A" was an addict and therefore dangerous
>before "B's" "abandonment," couldn't an argument be made in regard
>to "B's" motives for *quitting* the property not out of
>indifference to ownership or possession or right of enjoyment
>to the premises, but out of fear for "B's" safety?

In the extant scenario, the answer is "no."

"B" signed away all his equity interest in the property.
He had no 'right' to continue to store possessions there
without negotiating 'mutually agreeable' terms with the
owner in possession, and probably paying 'rent' for the
privilege..

Failure to make arrangements for his possessions _at_the_time_
he signed away his interest in the property is a =compelling=
indicator that he perceived that the possessions remaining on
the property to be of 'no value', and "did not care" what happened
to those possessions. "Abandonment", by definition, as it were.

>`If "B" could make such an argument (I'm assuming the *cougher*

>did at least inquire further about the abiding rationale or
>desire to re-bond with the home), why would a judge deny such
>an appeal?

Because the matter has _already_ been "dealt with."
An appraiser, of "B"s choosing, has already been through the
property. Apparently, "B" doesn't believe the report of
_his_own_expert_, and wants to 'see for himself.' The ruling
can be paraphrased as "you chose your expert, you live with
the results. You don't get a second bite at the apple just
because you don't like what your expert told you."

The chances of another judge reversing _that_ are essentially nil.

[nos...@isp.com]

astan...@gmail.com wrote:

> MediumBunny's question about an interlocutory appeal brings
> up a subject and paints a scenario with ramifications for people
> other than marriage partners.

This might be at least conjecturally possible in some way. However,
determining what that way may be and the degree (or lack) of probable
realism of whatever may be asserted ramifications applicable to the
persons/relationship you have in mind depend on information you don't
provide. For example:

> In his or her narrative, "B" "ran off with" someone, apparently
> abandoning a marriage but not necessarily the home.

At least re. the real property aspects of MediumBunny's and, it seems,
your postings, this appears to have it backwards. MediumBunny was
ambiguous about whether B intended permanently to abandon his or her
marriage when s/he first "ran off" but (albeit with one initial but
seemingly inaccurate qualification) indicated that there was no
ambiguity about whether B had relinquished his or her ownership
interest in the former marital residence.

The parenthetically noted caveat is that that poster said at first
that B had "apparently [sic] signed over all of B's equity [in the
property] to A" but, when fairly read as a whole, MediumBunny's
posting comparatively clearly undermined whatever was that poster's
reason for using the "apparently" qualification.

MediumBunny thus did not say that B was disputing such a "sign[ing]
over" in the pending A-B divorce litigation and, instead, just that B
wanted personally to inspect the premises based, however, only on B's
"assumption" despite his or her more than two year absence therefrom
that there was a mere possibility - i.e., not a fact-supported showing
of probability let alone of certainty - that there still might be some
remaining B or A-B possessions therein that A had not disposed of in
the intervening period.

(Further, MediumBunny appeared to say that B's attorney had
explicitly or at least clearly in effect stipulated to the lack of
merit to B's motion - a stipulation which, if expressed in writing or
on the record, presumably would independently bind B.)

> MediumBunny states that "A" inhales quantities of substance
> that (one assumes) are illegal and with the potential to effect
> radical and dangerous changes in behavior. If "B" could prove
> that "A" was an addict and therefore dangerous before "B's"
> "abandonment," couldn't an argument be made in regard to "B's"
> motives for *quitting* the property not out of indifference to
> ownership or possession or right of enjoyment to the premises,
> but out of fear for "B's" safety?

Although you don't factually explain the relevance for the persons you
have in mind of these speculations, it might nonetheless be noted that
reliance on what "one assumes" about a "potential effect" of [This] or
[That] behavior does not factually support your above "therefore [sic]
dangerous" conclusion AND, as noted, the B of the MediumBunny posting
did not seek any ownership of or possessory or other "right of
enjoyment" in B's former marital residence.

> If "B" could make such an argument (I'm assuming the *cougher*
> did at least inquire further about the abiding rationale or desire
> to re-bond with the home), why would a judge deny such an appeal?

There was as also noted no indication by MediumBunny that B wanted to
re-bond with his her former home. To the contrary, B's sole desires
(at least insofar as stated in MediumBunny's posting) was to be
granted relief that applicable law made comparatively very clear ought
not be granted on the sort of facts B provided then to appeal from a
denial of that desire despite also applicable law that very strongly
disfavored the "such an appeal" B wondered about.

Anyway as relevant (or not) to your questions, MediumBunny posted
about a comparatively specific state of facts: Long-term legally
married divorcing spouses asking a judge in a pending divorce lawsuit
(i.e., not unmarried parties to some other kind of lawsuit) to
determine their respective financial entitlements and obligations
arising from their avowedly dead marriage but without either claiming
that a judgment of divorce, as such, was not warranted and with B
making a pretrial discovery motion (not a motion by which B sought any
ownership or possessory interest in the former marital residence)
despite state law that did not provide for the requested discovery as
a matter of right yet with B basing (if one can call it that) that
motion on a record which did not contain and which instead disclaimed
grounds for its grant and therefore without B having made a record
that would (let alone which should) provide an exception to the
jurisdiction's (very) strong presumption against allowing
interlocutory appeals.

In contrast, although you evidently presume that you solicit a
discussion of potential "ramifications" of that scenario that might
apply to others, you say that you refer to not married persons, you do
not say what (if any) interests in what sort of (owned outright?
rental? other?) residential or commercial property each would claim,
you appear to suggest that there is no pending lawsuit between them
yet wonder about some sort of imagined "argument" in connection with
an also not identified pretrial order or final judgment.

In any case, insofar as appeals from state court orders and judgments
are concerned, different U.S. states' procedural rules promulgate
differing jurisdiction-to-jurisdiction standards allowing or
disallowing interlocutory appeals (including re. how to determine what
sorts of pretrial orders are nonetheless deemed "final" for some
particular appellate purpose). Assessing the appelable:yes?/no?
"ramifications" (if any) of a [state1] order for a [state2] order thus
also importantly depends on knowing the states referred to - also
information you do not post.

[astan...@gmail.com]

Robert Bonomi wrote:

> In the extant scenario, the answer is "no."
> "B" signed away all his equity interest in the property.
> He had no 'right' to continue to store possessions there
> without negotiating 'mutually agreeable' terms with the
> owner in possession, and probably paying 'rent' for the
> privilege.

See, to me, the signing away part only strengthens an argument
of duress. If drug or substance addiction is provable,
documented, and "B's" actions neither the real estate nor
marital equivalent of buyer's remorse--hell, yeah, some raging
addict could make at least me dance a fast jig off the
premises, give up my stash of vintage Playboys, cross my
fingers and hope that Rover is fed. Gender is significant
here, too. If "B" is male and "A" female, then "B" operated
under the additional duress of what the Mrs. would say to the
police if "B" didn't vamoose. Or, say for the sake of argument,
this is a same-sex couple, and "B" has the strike against him
of falling in love with someone not strung out on meth, crack,
drug-de-jour. The potential would be high for allegations of
abuse to be made by "A" and inferred by the cops by "B's"
*not* getting out of Dodge. MediumBunny didn't provide enough=
details (probably a smart move).

> Failure to make arrangements for his possessions _at_the_time_

> he signed away his interest in the property is a "compelling"

> indicator that he perceived that the possessions remaining on
> the property to be of 'no value', and "did not care" what happened
> to those possessions."Abandonment", by definition, as it were.

To me, failure to make arrangements _at the time_ indicates the
exact opposite.

> Because the matter has _already_ been "dealt with."
> An appraiser, of "B"s choosing, has already been through the
> property. Apparently, "B" doesn't believe the report of
> _his_own_expert_, and wants to 'see for himself.' The ruling
> can be paraphrased as "you chose your expert, you live with
> the results. You don't get a second bite at the apple just
> because you don't like what your expert told you."
>
> The chances of another judge reversing _that_ are essentially nil.

Maybe not--if another judge was intimately familiar with
variations of marital abuse and the epicurean delight of the
sadists who inflict them. Just because "B" did the rational,
adult thing that most sad-sacks do: hire some schlub appraiser
who could (politely) give a rat's ass about your tarnished
trophy from a debating contest in 1981... Surely this is
appealable. I've spent quite a great deal of time searching
for cases dealing with real estate + duress, but all I find
are pages upon pages of foreclosure stories.

[David L. Martel]

There was no groundwork laid to suggest that any fear et c. drove this
individual from the home.

You may, of course, make any hypothetical situation and ask questions but
trying to mesh your hypothetical with Medium Bunny's post does not work
well.

Good luck,
Dave M.

[A Michigan Attorney]

astan...@gmail.com wrote:

> MediumBunny's question about an interlocutory appeal brings up
> a subject and paints a scenario with ramifications for people
> other than marriage partners. In his or her narrative, "B"
> "ran off with" someone, apparently abandoning a marriage but
> not necessarily the home. MediumBunny states that "A" inhales
> quantities of substance that (one assumes) are illegal and with
> the potential to effect radical and dangerous changes in behavior.
> If "B" could prove that "A" was an addict and therefore dangerous
> before "B's" "abandonment," couldn't an argument be made in regard
> to "B's" motives for *quitting* the property not out of
> indifference to ownership or possession or right of enjoyment
> to the premises, but out of fear for "B's" safety?

Such an argument can be made, but the trial judge doesn't have to accept it.

> If "B" could make such an argument (I'm assuming the *cougher*
> did at least inquire further about the abiding rationale or
> desire to re-bond with the home), why would a judge deny such
> an appeal?

Because it was a discretionary ruling by the trial judge. The standard
of review would be "abuse of discretion", meaning that to reverse it the
appellate court would have to be convinced that the ruling fell outside
the range of principled outcomes. That's a deferential standard, and
it's the reason that (for example) most evidentiary rulings are upheld
on appeal. In other words, the appellate court doesn't reverse the
trial judge just because the appellate court would have ruled
differently if it was in the trial judge's shoes.

[A Michigan Attorney]

After sending my other (first) reply, I realized that you may not have
been asking about an appeal when you used the word "appeal"; rather, you
may have been asking why the trial judge may have rejected the *argument*.

There are a couple of possibilities. One is that he didn't believe that
B left out of fear. Another possibility is that B's *motive* for
leaving wasn't relevant to B's *intent* regarding the property. The
relevant state of mind is the intention to return (or not to return) for
the property. The years-long lapse after departure is pretty strong
evidence of intent not to return. Absent affirmative evidence of intent
to return, abandonment is a reasonable conclusion to draw. Even if B
testified to harboring an intent to return, an absence of corroborative
evidence would be very detrimental to B's case.

[Robert Bonomi]

<astan...@gmail.com> wrote:
> Robert Bonomi wrote:

>> In the extant scenario, the answer is "no."
>> "B" signed away all his equity interest in the property.
>> He had no 'right' to continue to store possessions there
>> without negotiating 'mutually agreeable' terms with the
>> owner in possession, and probably paying 'rent' for the
>> privilege.

> See, to me, the signing away part only strengthens an argument
> of duress.

Yet, in the subsequent court action, "B" has not raised the issue
of duress, but has entered motions that are predicated on the
'fact' that the signing away occurred. Having effectively _affirmed_
the signing away, it is *very* difficult to then attempt to argue
'duress' post hoc.

>> Failure to make arrangements for his possessions _at_the_time_
>> he signed away his interest in the property is a "compelling"
>> indicator that he perceived that the possessions remaining on
>> the property to be of 'no value', and "did not care" what happened
>> to those possessions."Abandonment", by definition, as it were.

> To me, failure to make arrangements _at the time_ indicates the
> exact opposite.

"At the time", or at any time since. Or even in the extant court
action.

_Constant_ duress for _multiple_years_, after voluntarily absenting
oneself from the scene?? *snort*

>> Because the matter has _already_ been "dealt with."
>> An appraiser, of "B"s choosing, has already been through the
>> property. Apparently, "B" doesn't believe the report of
>> _his_own_expert_, and wants to 'see for himself.' The ruling
>> can be paraphrased as "you chose your expert, you live with
>> the results. You don't get a second bite at the apple just
>> because you don't like what your expert told you."
>>
>> The chances of another judge reversing _that_ are essentially nil.

> Maybe not--if another judge was intimately familiar with
> variations of marital abuse and the epicurean delight of the
> sadists who inflict them.

'Immaterial and irrelevant', as the saying goes. he had an expert of
his own choosing do an appraisal. If he failed to properly instruct
*his* expert, that is *his* failure, and he cannot appeal =that=.

> Just because "B" did the rational,
> adult thing that most sad-sacks do: hire some schlub appraiser
> who could (politely) give a rat's ass about your tarnished
> trophy from a debating contest in 1981... Surely this is
> appealable.

Sorry, but if it wasn't "important enough" for him to tell the
hired expert _HE_ himself selected -- schlub or otherwise (the
selection was his choice, and he *is* stuck with the results of that
choice) -- to look for =that= particular item, he can't subsequently
argue that it had special value.

Repeating -- he _had_ his chance, with the expert OF HIS CHOOSING.
IF he failed to properly instruct *his* expert, or the expert failed
to do the job right, well, that's just "too bad" as far as the court
case goes. If it was 'failed to do the job right', he may have grounds
for a malpractice claim against the appraiser -- but that is outside
the scope of the extant action, and irrelevant to any appeal therein.

An appeal on the basis of _his_ side failing to 'do something right'
_when_they_had_the_opportunity_to_do_it_, is doomed to failure.

Of course, one _can_ appeal anything, but if I were opposing counsel, I'd
be asking for Rule 8 sanctions if someone tried it in this scenario.

[astan...@gmail.com]

nos...@isp.com wrote:

> At least re. the real property aspects of MediumBunny's and, it seems,
> your postings, this appears to have it backwards. MediumBunny was
> ambiguous about whether B intended permanently to abandon his or her
> marriage when s/he first "ran off" but (albeit with one initial but
> seemingly inaccurate qualification) indicated that there was no
> ambiguity about whether B had relinquished his or her ownership
> interest in the former marital residence.

> The parenthetically noted caveat is that that poster said at first
> that B had "apparently [sic] signed over all of B's equity [in the
> property] to A" but, when fairly read as a whole, MediumBunny's
> posting comparatively clearly undermined whatever was that poster's
> reason for using the "apparently" qualification.

Yes, it did.

> MediumBunny thus did not say that B was disputing such a "sign[ing]
> over" in the pending A-B divorce litigation and, instead, just that B
> wanted personally to inspect the premises based, however, only on B's
> "assumption" despite his or her more than two year absence therefrom
> that there was a mere possibility - i.e., not a fact-supported showing
> of probability let alone of certainty - that there still might be some
> remaining B or A-B possessions therein that A had not disposed of in
> the intervening period.

> (Further, MediumBunny appeared to say that B's attorney had
> explicitly or at least clearly in effect stipulated to the lack of
> merit to B's motion - a stipulation which, if expressed in writing or
> on the record, presumably would independently bind B.)

I inferred that MediumBunny WAS B's attorney, and I think you inferred
(I would say wrongly) that he/she stipulated to any lack of merit. I'll
reread the post, but I can't recall finding what you apparently found.

> Although you don't factually explain the relevance for the persons you
> have in mind of these speculations, it might nonetheless be noted that
> reliance on what "one assumes" about a "potential effect" of [This] or
> [That] behavior does not factually support your above "therefore [sic]
> dangerous" conclusion AND, as noted, the B of the MediumBunny posting
> did not seek any ownership of or possessory or other "right of
> enjoyment" in B's former marital residence.

Oh my God, but it most certainly does "factually support" an "if not for"
conclusion. Dixon v. (can't remember): the battered spouse defense. If
inhaled substances aren't capable not only of motivating "abandonment"
AND ALSO B's subsequent, two-year-long confusion about returning, tell
me what is?

> There was as also noted no indication by MediumBunny that B wanted to
> re-bond with his her former home. To the contrary, B's sole desires
> (at least insofar as stated in MediumBunny's posting) was to be
> granted relief that applicable law made comparatively very clear ought
> not be granted on the sort of facts B provided then to appeal from a
> denial of that desire despite also applicable law that very strongly
> disfavored the "such an appeal" B wondered about.

This is a bit prolix; but I believe I know what you mean, and I disagree.
The question is whether there's a chance of a snowball in hell for an
appeal I would hope that there is, based on the original judge's allowing
a third-party appraiser's judgment of what is of worth supercede the fact
that THE PERSON WHO HIRED THE APPRAISER essentially trashed the
appraisal. Should the appraisal have been presented? Hell, no, but that's
MediumBunny's fault, not his client's.