Real property – Partition – Stay

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Where a motion has been filed requesting a stay of a partition action, that motion should be denied because a separate action in Rhode Island Superior Court has no bearing on the status of the title to the property.

“In February 2022, the Middlesex Probate and Family Court (probate court) issued a decision (probate court decision) imposing a constructive trust over the home at 31 Wildwood Street, Winchester, MA 01890 (property). The home had previously been cohabited by Dr. Karin Galil (Galil) and Dr. Edward O’Rourke (O’Rourke), former romantic partners now engaged in extensive litigation over their prior relationship. The probate court found that each party holds a one-half undivided interest in the property as a tenant in common. Galil appealed the probate court decision to the Appeals Court, which affirmed the decision with the modification that the two parties’ interests remained subject to the outstanding mortgage.

“Galil filed a petition for partition of the property in the Land Court on May 24, 2024, under docket number 24 MISC 000295 (Galil petition). Several weeks later, on June 14, 2024, O’Rourke filed a separate petition in the Land Court seeking partition of the same property, under docket number 24 MISC 000336 (O’Rourke petition). This court consolidated the two actions (together, the partition action). Simultaneous to the partition action, the parties are involved in a separate action (RI action) in the Rhode Island Superior Court (RI court) seeking resolution of the ownership of another home located in Newport County, Rhode Island (RI property).

“… At the case management conference on August 27, 2024, this court found that the parties were entitled to partition and that the property could not be advantageously divided. The court also found, as a matter of title, that the parties each held a fifty percent interest in the property as tenants in common. At the hearing, Galil reported that she wished to stay the partition action until the resolution of the RI action (stay motion), arguing that claims at issue in the RI action would have bearing on the interests at stake in the partition action. O’Rourke opposed the stay motion, and instead wished to proceed and partition the property by a court appointed commissioner (commissioner motion). …

“Galil argues that a stay is required because the issues at stake in the partition action and the RI action are substantially the same. Galil contends that O’Rourke is not actually the owner of a half-interest in the property, so this court should wait until the RI court determines O’Rourke’s actual interest in the property in the context of the parties’ greater financial arrangements, which the probate court judge termed their ‘joint enterprise.’ …

“This court has already determined that, in accordance with the probate court decision, the parties each have an undivided fifty percent interest in the property as tenants in common. A decision in the RI court cannot disturb that finding. The RI court has no jurisdiction over ownership interests in the property at stake here, just as this court has no jurisdiction over the ownership of the RI property. … Galil acknowledged as much at oral argument. The RI action has no bearing on the status of the title to the property. Therefore, a stay is not appropriate on these grounds. …

“Galil also argues that staying this action will avoid duplicative disputes by allowing each fact to be litigated only once. … It is difficult to foresee the extent to which the RI court will make determinations affecting a property outside of its jurisdiction. Judicial economy will not be served by waiting for an action that ultimately may have little or no effect on the rights at stake here.

“… O’Rourke has an interest in the prompt resolution of this case. … The expeditious disposition of this case will not be served by further delay in litigation that has stretched on for at least seven years. …

“At the case management conference on August 27, 2024, this court determined that each party held an equal interest in the property as tenants in common, the parties were entitled to partition, and the property could not be advantageously divided. ‘If it is found that the petitioner is entitled to have partition for the share claimed or for any less share, the court shall make the interlocutory decree that partition be made, and therein determine the persons to whom and the proportions in which the shares shall be set off.’ G.L.c. 241 §10. … Thus, pursuant to G.L.c. 241 §12, this court will appoint a commissioner in this matter. …

“For the foregoing reasons, the Motion for a Stay is denied, and the Motion to Appoint a Commissioner is allowed. A commissioner shall be appointed.”

Galil v. O’Rourke (Lawyers Weekly No. 14-022-25) (13 pages) (Foster, J.) (Middlesex Land Court) (Docket Nos. 24 MISC 000295 and 24 MISC 000336) (April 25, 2025).

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