Olivas v. Olivas
780 P.2d 640 (1989)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
When spouses separate, a constructive ouster entitling the departing spouse to rent from the occupying spouse occurs only when cohabitation becomes impossible due to marital friction. If a spouse departs the marital home for their own personal reasons, such as to live with a new partner, the departure is considered abandonment and does not constitute a constructive ouster.
Facts:
- Sam Olivas (husband) and Carolina Olivas (wife) owned a family home as community property.
- In June 1983, the husband moved out of the family home.
- The husband established a separate home which also served as his business office.
- The wife remained in the family home and had exclusive occupancy after the separation.
- Evidence suggested the husband's purpose in leaving the community residence was to live with a girlfriend.
- The husband did not demand rent from the wife for several years following his departure.
Procedural Posture:
- Carolina Olivas (wife) filed a petition for dissolution of marriage against Sam Olivas (husband) in New Mexico district court.
- The district court entered a partial decree of divorce on December 18, 1984.
- On August 31, 1987, the district court entered its final order dividing the community property.
- In its order, the district court rejected the husband's claim for rent, finding that he 'chose to move out of the family home.'
- The husband (appellant) appealed the district court's property division order to the New Mexico Court of Appeals, where the wife (appellee) responded.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a spouse's voluntary departure from the marital home to live with another person constitute a 'constructive ouster' that entitles the departing spouse to rent from the spouse who remains in the home?
Opinions:
Majority - Hartz, J.
No. A spouse's voluntary departure for personal reasons does not constitute a constructive ouster entitling the departing spouse to rent. While a constructive ouster can occur when the emotions of a divorce make it impossible for spouses to share the residence, this doctrine does not apply when a spouse chooses to leave for reasons independent of marital friction. The court explained that ordinarily, a cotenant in exclusive possession does not owe rent to other cotenants unless there has been an ouster. In the marital context, the impracticality of cohabitation due to hostility can act as a 'constructive ouster'. However, the departing spouse bears the burden of proving they were ousted. Here, substantial evidence indicated the husband was not pushed out by the wife but rather 'pulled' away to live with a girlfriend, which constitutes abandonment of his interest in possession, not an ouster.
Concurring - Donnelly, J.
No. The trial court's finding that the husband 'chose to move out' is supported by substantial evidence, so his claim for rent was properly denied. An 'ouster' is a wrongful dispossession or exclusion that requires proof of intent to exclude the other party. There should be no presumption of constructive ouster merely because one spouse leaves the marital residence. The party claiming ouster must prove they were unequivocally deprived of their right to possession. Since the evidence supported a finding that the husband voluntarily elected to move out, rather than being forced out by the wife's conduct, there was no ouster.
Analysis:
This case provides a crucial clarification of the 'constructive ouster' doctrine in family law, distinguishing between a departure forced by marital hostility and a voluntary departure for personal reasons. It establishes that the motive behind leaving the marital home is the key factor in determining whether the remaining spouse has a rent obligation. By placing the burden of proof on the departing spouse, the court prevents claims for rent where a party has simply abandoned their possessory interest. This precedent requires family courts to scrutinize the circumstances of the separation before awarding rent for the use of a community residence.
