Cuevas v. Cuevas

• Court: Mississippi Supreme Court
• Writing for the Court: SMITH; ETHRIDGE
• Citation: Cuevas v. Cuevas, 191 So.2d 843 (Miss. 1966)
• Decision Date: 14 November 1966
• Docket Number: No. 44126,44126
• Parties: Franklin J. CUEVAS, and Mrs. Clyde M. McCallum v. Mrs. Donna CUEVAS.

Page 843

191 So.2d 843

Franklin J. CUEVAS, and Mrs. Clyde M. McCallum v. Mrs. Donna CUEVAS.

No. 44126.

Supreme Court of Mississippi Nov. 14, 1966.

Upton Sisson, Gulfport, for appellants.

Eaton, Cottrell, Galloway & Lang, Gulfport, for appellee.

SMITH, Justice.

Franklin J. Cuevas and Mrs. Clyde M. McCallum have appealed from a decree of the Chancery Court of Harrison County declaring invalid an attempt by the former to convey to Mrs. McCallum an interest in Harrison County realty, and directing him to convey such interest to Mrs. Donna Cuevas, the appellee.

Franklin J. Cuevas and Mrs. Donna Cuevas were formerly husband and wife, and for many years lived together and made their home at Gulfport in Harrison County, Mississippi. They acquired and occupied as their home the property which is the subject of the present litigation.

In 1948 this property had been conveyed to Franklin J. Cuevas and Donna Cuevas, his wife, 'as joint tenants in entirety and not as tenants in common, but to the survivor. * * *'

Several years before the inception of the present controversy, Mr. and Mrs. Cuevas moved to the State of Georgia where they made their home and continued to live together as husband and wife. After moving to Georgia, the parties became involved in a series of matrimonial difficulties and several suits for divorce were filed and withdrawn following reconciliation of the parties. The chief source of the trouble between them appears to have been a relationship which Mr. Cuevas had formed with Mrs. Clyde M. McCallum, a woman somewhat younger than himself.

The marital situation continued to deteriorate until, on April 6, 1965, Mrs. Donna Cuevas, then living apart from her husband, filed suit in the Superior Court of Houston County, Georgia against him and Mrs. McCallum. She asked for support, including an award of his interest in the real property in Narrison County, Mississippi, and to have set aside a conveyance by Cuevas to Mrs. McCallum of certain Georgia real estate. At the time, she was unaware that he had already attempted to convey his interest in the Harrison County property to Mrs. McCallum. She alleged in her petition that Cuevas was carrying on a love affair with Mrs. McCallum, that he was allowing her to use his automobile and allowing her to spend considerble time in his home, that he had conveyed to Mrs. McCallum certain real property in the State of Georgia for the purpose and with the intent of defeating her recovery of alimony, and that Mrs. McCallum took the deed with notice of such purpose and intention and conspired with him in his effort to defeat her recovery of alimony. She further charged that it was impossible for her to live with Cuevas because of his infidelity and cruelty.

On April 23, 1965, Franklin J. Cuevas filed a petition in the Superior Court of Houston County, Georgia, the court in which the above suit for support was then pending, seeking a divorce from Mrs. Donna Cuevas on the ground of 'mental cruelty.' He alleged that Mrs. Cuevas 'had treated him cold and had not manifested love and affection' for him.

He concluded his petition with this language:

'She has an undivided interest in a home in Gulfport that with the furnishing is valued at about $25,000, to her interest $12,500 and petitioner offers to pay to defendant to supplement her income for support the sum of $75 each two weeks, which would make her total income to be $292 monthly. That the home referred to is open and like she left same when she came to Georgia last, and is open for her occupancy as she has occupied for so many years.'

He failed to disclose in his petition that on April 6, 1965, he had executed a conveyance to Mrs. Clyde McCallum, purporting to convey to her an undivided one-half interest in the Gulfport property for '$1.00 and other good and valuable considerations.' In filing his petition against Mrs. Donna Cuevas, Franklin J. Cuevas made no mention of this fact, but indicated that Mrs. Donna Cuevas would be permitted to occupy the Gulfport home as she had done formerly.

On May 29, 1965, Franklin J. Cuevas and Mrs. McCallum agreed, through their respective attorneys, to the entering of an order by the Georgia court consolidating the issues of the two pending suits and to have them tried 'as one case' in the Houston County Superior Court, before a jury.

On June 11, 1965, in the course of litigation, and after it was discovered that Cuevas had also attempted to convey his interest in the Gulfport property to Mrs. McCallum, the court entered an order, by agreement between the attorneys for Franklin J. Cuevas and Mrs. Clyde McCallum and the attorney for Mrs. Donna Cuevas, restraining and enjoining Mrs. McCallum from selling or in any manner disposing of the title or any interest in the Gulfport property. An agreed order had been entered previously restraining Cuevas from attempting to do so.

Pursuant to the agreement to consolidate and submit to a jury as one case, the matter was submitted to a jury which awarded a divorce to Cuevas, set aside the attempted conveyance of his interest in the Mississippi property to Mrs. McCallum and awarded it to Mrs. Donna Cuevas, together with a money allowance, all as alimony. The award of alimony from the corpus of the husband's estate, including land, is sanctioned by Georgia law. Wise v. Wise, 156 Ga. 459, 119 S.E. 410 (1922); Gholston v. Gholston, 54 Ga. 285 (1875); Ga.Civ.Code § 30-209 (1933).

Based on the verdict, the court entered a decree setting aside the attempted conveyance from Franklin J. Cuevas to Mrs. Clyde M. McCallum and awarding the interest of Franklin J. Cuevas in the Harrison County property to Mrs. Donna Cuevas as alimony, and also provided that Franklin J. Cuevas should pay her $100 per month until her death or remarriage.

This was a final decree. There was no motion for a new trial and no appeal was prosecuted from it by any party, the time for appealing having long since expired.

However, on July 2, 1965, attorneys for Mrs. McCallum wrote to Mrs. Donna Cuevas at Gulfport, demanding payment by her of rent for the use of the Harrison County property, claiming that Mrs. McCallum owned an undivided half interest in it under her deed from Franklin J. Cuevas.

Mrs. Donna Cuevas rejected this demand and filed a bill, based upon the Georgia decree, in the Chancery Court of Harrison County against Franklin J. Cuevas and Mrs. Clyde M. McCallum, both residents of the State of Georgia, in which she sought a decree of the Harrison County Chancery Court establishing and recognizing the decree of the Superior Court of Houston County, Georgia, setting aside the attempted conveyance of the property from Franklin J. Cuevas to Mrs. McCallum, and directing the conveyance to her of the undivided interest of Cuevas. The bill gave a history of the litigation between the parties in the Superior Court of Houston County, Georgia and exhibited copies, properly certified, of the proceedings in that court in the two consolidated cases.

Franklin J. Cuevas and Mrs. Clyde McCallum answered the bill separately and asserted that Mrs. McCallum was the owner of an undivided half interest in the Gulfport property under the conveyance from Cuevas, and that the decree of the Georgia Court was void insofar as it attempted to affect title to realty in Mississippi. Mrs. McCallum also filed a cross-bill in which she sought a sale of the property for a division of the proceeds.

In answering the cross-bill, Mrs. Donna Cuevas reiterated her charge that Franklin J. Cuevas and Mrs. McCallum had acted in concert and had conspired together in making the purported conveyance for the purpose of defeating the recovery of alimony on her part.

The matter was presented to the chancellor on documentary proof, including certified copies of the Georgia proceedings. After determining that all parties were personally before the court and that the court had jurisdiction of the parties and subject matter, the chancellor found the conveyance from Franklin J. Cuevas to Mrs. McCallum to be void and of no effect, that he decree of the Superior Court of Houston County, Georgia was a valid final decree and entitled to be accorded full faith and credit as such, that no appeal had been taken, and such decree should be recognized and be given full force and effect. He found that Mrs. Donna Cuevas was entitled to have the rights acquired under that decree enforced by the Harrison County Chancery Court. He held further that Mrs. McCallum was entitled to no relief under her cross-bill.

The chancellor ordered cancelled the attempted conveyance of his interest in the Gulfport property by Franklin J. Cuevas to Mrs. McCallum and directed the clerk to enter the cancellation upon the record. He adjudged that Mrs. Donna Cuevas was the equitable owner of the property and entitled to have the claim of Mrs. McCallum cancelled as a cloud on her title.

Franklin J. Cuevas was ordered to convey his interest in the property to Mrs. Donna Cuevas, and the decree contained a provision that in the event he should fail to do so within ninety days, a special commissioner should make the conveyance.

It is from that decree that Franklin J. Cuevas and Mrs. Clyde M. McCallum have appealed here.

The cancellation of the conveyance executed by Franklin J. Cuevas purporting to convey an undivided half interest in the Gulfport property affords no difficulty. It is clear from the language employed in the conveyance to Franklin J. Cuevas and his wife, Mrs. Donna Cuevas, that an estate by the entireties was intended to be created and was created by that instrument. Such an estate may not be severed or destroyed by the act of one of the tenants. Carter v. Sunray Mid-Continent Oil Co., 231 Miss. 8, 94 So.2d 624 (1957); Wolfe v. Wolfe, 207 Miss. 480, 42 So.2d 438 (1949); Hemingway v. Scales, 42 Miss. 1 (1868); Miss.Code Ann. § 834 (1956); Miss.Code Ann. § 2441 (1892); 4 Thompson, Real Property, § 1791 at 96 (1961, Supp.1965)....