Kahn v. Kahn

• Decision Date: 22 November 1977
• Citation: 371 N.E.2d 809,401 N.Y.S.2d 47,43 N.Y.2d 203
• Parties: , 371 N.E.2d 809 Alfred KAHN, Respondent, v. Miriam KAHN, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 47

401 N.Y.S.2d 47

43 N.Y.2d 203, 371 N.E.2d 809

Alfred KAHN, Respondent, v. Miriam KAHN, Appellant.

Court of Appeals of New York.

Nov. 22, 1977.

Richard H. Wels and Allen H. Carlin, New York City, for appellant.

Peter E. Bronstein and Eli H. Bronstein, New York City, for respondent.

OPINION OF THE COURT

JASEN, Judge.

Appellant wife and respondent husband have been married since 1949. Respondent brought the present action for divorce on the ground of cruel and inhuman treatment. Appellant counterclaimed for a separation, for a share of jointly held bank accounts, and for payment of necessaries, support and counsel fees. During trial, the counterclaim for a separation was withdrawn.

Special Term dismissed respondent's complaint and awarded appellant: (1) sole and exclusive possession of the marital home; (2) her interest in the jointly held bank accounts an amount determined to be $22,058.89; and (3) payment for support and necessaries accruing from separation until the date of trial a sum determined to be $30,188.

On appeal, the Appellate Division, although affirming the dismissal of respondent's complaint, ordered that the marital premises be sold and the proceeds from the sale be divided according to the parties' respective equities in the property. It also modified the judgment rendered by Special Term by reducing appellant's share of the jointly held bank accounts by $3,374.43 and by reducing the award for necessaries and support to $15,000.

The principal issue presented on this appeal is whether, in a matrimonial action, a court may order the sale of real property held by the parties as tenants by the entirety, even though the marital relationship has not been legally altered.

At common law husband and wife were incapable of holding property as joint tenants or tenants in common. (Barber v. Harris, 15 Wend. 615, 617.) In contemplation of the law, husband and wife were but one person. (Matter of Klatzl, 216 N.Y. 83, 85, 110 N.E. 181.) Thus, a conveyance to them by name was a conveyance to only one person. (Stelz v. Shreck, 128 N.Y. 263, 266, 28 N.E. 510, 511; 15 N.Y.Jur., Domestic Relations, § 145.) Because of the marital relationship they were said to be seized of the estate in its entirety: each being seized of the whole rather than of any undivided portion. (Bertles v. Nunan, 92 N.Y. 152, 156; Stelz v. Shreck, 128 N.Y., at p. 266, 28 N.E., at p. 511, supra; Hiles v. Fisher, 144 N.Y. 306, 312, 39 N.E. 337, 338; 15 N.Y.Jur., Domestic Relations, § 145.) At death, the survivor took the estate not because of a right of survivorship, but because the survivor remained seized of the whole. (Bertles v. Nunan, 92 N.Y., at p. 156, supra; Jackson v. McConnell, 19 Wend. 175, 178; Stelz v. Shreck, 128 N.Y., at p. 266, 28 N.E., at p. 511, supra.)

The common law soon recognized that in addition to death a legal dissolution of the unity of husband and wife would necessarily affect the continuing validity of a tenancy by the entirety. In holding that an absolute divorce terminates a tenancy by the entirety, Judge Peckham observed: "When the idea upon which the creation of an estate by the entirety depends is considered, it seems to me much the more logical as well as plausible view to say that, as the estate is founded upon the unity of husband and wife, and it never would exist in the first place but for such unity; anything that terminates the legal fiction of the unity of two separate persons ought to have an effect upon the estate whose creation depended upon such unity." (Stelz v. Shreck, 128 N.Y., at p. 267, 28 N.E., at p. 511, supra.)

Upon termination of a tenancy by the entirety through divorce, the parties become tenants in common. (Stelz v. Shreck, 128 N.Y., at p. 267, 28 N.E., at p. 511, supra; see, generally, 15 N.Y.Jur., Domestic Relations, § 169; 41 Am.Jur.2d, Husband and Wife, § 106.) Since an annulment also alters the legal relationship between husband and wife, it has also been held to result in conversion of a tenancy by the entirety into a tenancy in common. (Matter of Kutick, 33 Misc.2d 580, 226 N.Y.S.2d 869; 15 N.Y.Jur., Domestic Relations, § 169.) Where, however, husband and wife separate without the aid of a judicial decree, they remain one legal person; and, therefore, they continue to own property acquired as tenants by the entirety just as they did prior to their separation. (See O'Connor v. McMahon, 54 Hun. 66, 70; 168 A.L.R. 260.)

In 1962 our Legislature enacted section 234 of the Domestic Relations Law which provides in pertinent part: "In any action for divorce, for a separation, for an annulment or to declare the nullity of a void marriage, the court may (1) determine any question as to the title to property arising between the parties, and (2) make such direction, between the parties, concerning the possession of property, as in the court's discretion justice requires having regard to the circumstances of the case and of the respective parties." (L.1962, ch. 313, § 10, as amd. by L.1963, ch. 685, § 5.)

Section 234 of the Domestic Relations Law was derived from Section 1164-a of the Civil Practice Act (L.1953, ch. 698). Unlike the present section, section 1164-a applied only in an action for a separation and made no reference to title questions. Its sole purpose was to allow a court to decide in the marital action the right of possession of real property held by the husband and wife as tenants by the entirety. Recognizing that a judgment of separation does not dissolve the marriage and terminate a tenancy by the entirety, the Legislature sought to prevent any injustice which might arise as a result of a spouse's continued rights as a tenant by the entirety notwithstanding a judicial decree of separation. For example, a tenant by the entirety may sell, mortgage or lease his interest in the property without consent of the other tenant. The Legislature feared the obvious harm which could be caused by a vindictive spouse who transferred or encumbered his interest in the property in an attempt to harass the other spouse. (See 1953 Report of N.Y. Law Rev. Comm., pp. 485-486.)

In addition to the prevention of harm by a vindictive spouse, section 1164-a was also enacted to overcome a procedural hurdle. Prior to this section, no authority existed to permit a court to adjudicate a real property right in a marital action. Section 1164-a was enacted to provide the specific statutory authority authorizing such an adjudication. (See 1953 Report of N.Y. Law Rev. Comm., pp. 485-486.)

In 1962, the provisions of section 1164-a were transferred from the Civil Practice Act to the Domestic Relations Law. (L.1962, ch. 313, § 10, as amd. by L.1963, ch. 685, § 5.) Contemporaneous with this transfer, the Legislature amended section 234 to permit a court in an action for divorce, annulment or declaration of the nullity of a void marriage, as well as in an action for a separation, to make a direction concerning possession of property and to determine any question of title to property arising between the parties. The principal reason for this amendment was to "make it unnecessary to bring a separate action or proceeding to determine questions relating to who has title to the property." (Siegel, Practice Commentarie McKinney's Cons. Laws of N.Y., Book 14, Domestic Relations, § 234, p. 123 (1964).)

Although section 234 empowers a court to make a direction concerning possession of property, "as in the court's discretion justice requires having regard to the circumstances of the case and of the respective parties", the legislative history makes clear that the court may exercise its discretion only with regard to questions of possession. "(T)he determination of title questions (is) to be controlled by principles of property law." (1963 Report of Joint Legislative Committee on Matrimonial and Family Laws, N.Y. Legis. Doc., No. 34, 1963, pp. 84-85; Siegel, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 14, Domestic Relations, § 234, p. 125 (1964); 18 Carmody-Wait 2d, N.Y. Prac., Absolute Divorce, § 114:173, pp. 640-641.)

Thus, the legislative history surrounding section 234 indicates clearly that the Legislature did not intend to alter existing substantive property law principles in enacting this section. Its essential purpose was procedural: to permit a court in a marital action to resolve disputes involving possession and title to property arising as an incident to the marital action.

In the case before us, the trial court dismissed respondent's cause of action for a divorce. Although appellant counterclaimed for a separation, she withdrew her claim during the trial. Since the parties have not separated in conformance with a judicial decree, the marriage relationship has not been altered; the parties remain husband and wife in contemplation of the law. Consequently, under existing principles of property law, the tenancy by the entirety in which the parties own their marital home has not been terminated.

Ripp v. Ripp, 32 N.Y.2d 755, 344 N.Y.S.2d 950, 298 N.E.2d 114, affg., 38 A.D.2d 65, 327 N.Y.S.2d 465, is not to the contrary. There, the...