Coffey v. Coffey

• Decision Date: 07 September 1972
• Docket Number: No. 25745,25745
• Citation: 485 S.W.2d 167
• Parties: Donald W. COFFEY, Appellant, v. Elizabeth M. COFFEY, Respondent.
• Court: Missouri Court of Appeals

Page 167

485 S.W.2d 167

Donald W. COFFEY, Appellant, v. Elizabeth M. COFFEY, Respondent.

No. 25745.

Missouri Court of Appeals, Kansas City District.

Sept. 7, 1972.

William B. Waters, Liberty, Gregory E. Hodges, Kansas City, for appellant.

David Lee Wells, North Kansas City, for respondent.

SWOFFORD, Judge.

The parties will be referred to herein as they were below.

Plaintiff filed his petition in the Circuit Court of Clay County, Missouri in two Counts. In Count I, he asked for a divorce from the defendant on the grounds of general indignities, and in Count II, he asked for an accounting of certain personal property held by the parties as joint tenants, and that one-half thereof be set over to him. The defendant by her answer contested his right to either a divorce or an accounting, but did not ask for any affirmative relief.

The plaintiff appeals from the judgment of the court below denying him a divorce or an accounting, and finding all issues for the defendant. While the plaintiff in his motion for new trial below urged that the court erred in refusing him a decree of divorce upon the evidence adduced, he has not briefed or argued this point upon appeal, and the judgment on Count I must, therefore, be affirmed.

The only matter for present determination is whether the court below erred in refusing to order an accounting of the personal property, as sought in Count II of plaintiff's petition.

It is plaintiff's position that he is entitled to such accounting because the defendant wrongfully converted the property held by the parties as tenants by the entirety, and thus changed the nature of the ownership to that of tenants in common, and that he is therefor entitled to one-half thereof, to be determined by an accounting. Defendant, on the other hand, asserts that the court did not err in refusing the accounting because the divorce decree was denied and the parties are still man and wife.

Stated differently, the point for decision is whether or not under the facts and evidence in this particular case an accounting may be had between man and wife as to personal property held as tenants by the entirety, or is a divorce decree a necessary prerequisite to such an accounting?

As pertinent to this question, a brief review of the evidence is necessary.

The parties hereto were married October 11, 1933, and lived together until November 21, 1968, a period of over 35 years. No children were born of this marriage. Over the period of 35 years, both parties were gainfully employed for substantially all of the time, and through their joint efforts they acquired a home free from encumbrance and also certain personal property (here involved) consisting of a bank account, savings and loan deposits and government bonds, all of which were held in their joint names. There is no dispute between the parties that this personal property was held by them as tenants by the entirety.

On November 21, 1968, the defendant left the home and took up her residence elsewhere, and since said date and up to and including the trial date, December 9, 1970, has no longer lived with the plaintiff, and on the trial date had not seen him, according to her testimony, for about a year and a half. She filed an action for divorce against the plaintiff on November 25, 1968, based upon the grounds of general indignities, but thereafter dismissed said action.

During the last few years that the parties lived together, the evidence disclosed that their marital situation had progressively deteriorated. Some of the evidence upon this element of the case is summarized here, not as it reflects upon the divorce element of this case, but by reason of its importance as bearing upon the right to accounting and property interests.

The plaintiff testified that the defendant had an ungovernable temper, constantly quarreled and argued with him, falsely accused him of association with other women; upon one occasion, she threatened to kill him with a loaded revolver in hand, and that upon another occasion she struck him with a water pitcher, breaking his false teeth. Defendant admitted her threat with the revolver and that upon occasion she had struck the plaintiff, claiming however, that these actions were in self-defense. Upon another occasion, the defendant physically attacked a neighbor with whom she falsely accused her husband of improper conduct.

The defendant testified that the plaintiff drank in excess, was frequently intoxicated; had upon occasion struck and bruised her; that he had over a period of years engaged in improper association with a neighbor, and that his drinking and personal conduct had affected his health, resulted in several heart attacks and hospitalizations.

The defendant testified that after she left the home and the plaintiff on November 21, 1968, she took the jointly held funds of the parties, which consisted of approximately $5400.00 in a Baltimore Bank checking account; approximately $10,000.00 in a Sentinel Savings and Loan account; and approximately $14,000.00 in government bonds.

She testified that the proceeds from the checking account she had put into two savings accounts in her own name, and had transferred the savings and loan account to her own name; that all of said funds had been left intact by her, as had the government bonds, and that she anticipated that some of these funds might be needed in the future by the plaintiff for medical care, but that she had not transmitted any of the funds or the earnings therefrom to the plaintiff since her departure from the home in November, 1968.

The bank and savings and loan association records were not offered in evidence, nor an exact description of the registration of the government bonds made a part of the record. However, the parties throughout have treated this property as held by the parties initially as tenants by the entirety.

Such a tenancy can exist only between husband and wife and is based upon the fiction, having its source in the common law, that the husband and wife hold such property as one person. The essential characteristic of an estate by the entirety is that each spouse is seized of the whole or entity and not a share, moiety or divisible part. It is said that each is seized 'per tout et non per my' or 'by the whole and not by the moiety (half of anything).' Such ownership applies to both real and personal property.

In speaking of this type of an estate in Ashbaugh v. Ashbaugh, 273 Mo. 353, 201 S.W. 72, the Supreme Court said, l.c. 73:

'* * * It is one estate vested in two individuals who are by a fiction of law treated as one person, each being vested with entire estate. Neither can dispose of it or any part of it without the concurrence of the other, and in case of the death of either the other retains the estate. It differs from a joint tenancy where the survivor succeeds to the whole estate by right of the survivorship; in an estate by entireties the whole estate continues in the survivor. The estate remains the same as it was in the first place, except that there is only one tenant of the whole estate whereas before the death there were tow.'

See also: Greene v. Spitzer, 343 Mo. 751, 123 S.W.2d 57, 60.

Even if the parties had not treated the accounts and bonds, which are the subject matter of this suit, as an estate by the entirety, such could be presumed under the Missouri law, since the accounts and bonds were in both their names 'jointly' and they were husband and wife.

In the Matter of the Estate of Jeffries, Mo.Sup., 427 S.W.2d 439, 444, it was held that joint accounts and deposits payable to husband and wife are presumed to be held in an estate by the entirety, regardless of statutes relating to joint bank deposits, and regardless of whether the husband or the wife, or both, furnished the money creating the account. In re Estate of O'Neal, Mo.Sup., 409 S.W.2d 85, 91; McIntyre v. McIntyre, Mo.Sup., 377 S.W.2d 421, 425; State Bank of Poplar Bluff v. Coleman, 241 Mo.App. 600, 240 S.W.2d 188, 189. We will proceed, therefore, upon the premise that the property here involved was held by the entirety.

Personal estates held by the entirety can be changed to other types of estates by consent, agreement or acquiescence, Cooper v. Freer, Mo.App., 385 S.W.2d 340, 345, but neither the husband nor the wife owning personalty by the entirety can dispose of the whole or any part thereof without the consent, agreement or acquiescence of the other. Leuzinger v. Merrill, Lynch, Pierce, Fenner & Smith, Mo.Sup. en Banc, 396 S.W.2d 570, 580, in which case it was said, l.c. 580:

'* * * One of the incidents of a tenancy by the entirety is that any act affecting the title to property thus held must be by joint act. * * *'

Zahner v. Voelker, Mo.App., 11 S.W.2d 63; Feltz v. Pavlik, Mo.App., 257 S.W.2d 214; and cases collected Missouri Digest, Husband and Wife, k 14(2, 9).

There is no contention in this case that the plaintiff-husband ever consented to, agreed with, or acquiesced in the act of the defendant-wife in the transfer of the deposits here involved from the estate by the entirety to her sole name, nor the appropriation by her of the government bonds held by the entirety.

While the defendant in her answer to Count II of plaintiff's petition denied that the plaintiff had contributed to the accumulation of the funds which created this entirety estate, her testimony and that of the plaintiff agreed that he had made such contributions regularly and as a matter of family economics and agreement throughout the years of the marriage, and for the purpose of this decision, we can proceed upon the premise that this estate was created by the joint efforts of the parties.

Likewise, it is conceded by the parties in their briefs that the joinder of Count I for divorce with Count II for an accounting in plaintiff's petition was proper.

Even though such concession is here made by the parties, it is helpful toward solution of the ultimate decisive question before...